9911796707
TMI Blog2023 (10) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Consequent to the Cadre Restructuring of the Department w.e.f. 15-11-2014, the jurisdiction of the appellant for Alwarpet, Chennai 600018 address lie with Non-Corporate Range 3 whereas notice has been issued by present AO i.e., DCIT, NCC 8(1) at Porur address. It could also be seen that AO has wrongly invoked the provision of clause (a) of Explanation 2 of Section 147, which applies only where no return of income has been furnished by the assessee. In the case of the assessee, the return of income was filed and the scrutiny assessment u/s 143(3) was completed by the jurisdictional AO accepting the returned Income of the assessee. Therefore, present AO has wrongly invoked the provisions of Clause (a) of Explanation 2 of Section 147, which applies only where no return of income has been furnished by the assessee. The AO has not perused the original assessment records and had proceeded to issue the notice u/s 148 without verification of the documents on record. Accordingly, the conclusion that notice u/s 148 was issued mechanically without due application of find could not be faulted with. As in the present case, the reassessment notice has been issued at old address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jurisdiction by efflux of time. 2.5. The CIT(A) erred in ignoring the fact that the assessee had been taking contradictory stand before the Income tax authorities regarding its address. Previously it was claimed that its address was Porur and not Alwarpet address which it claims now. However, in the Form 35 filed by the assessee for the instant assessment year address was mentioned as Porur. From the record it emerges that the assessee has been taking contradictory stand regarding its address. 2.6. The CIT(A) ought to have verified the correctness of the assessee's claim towards its address or else the CIT(A) ought to have provided an opportunity to the AO to verify the same since the objection regarding territorial jurisdiction was not at all raised by the assessee during the course of reassessment proceedings. 2. The Registry has noted delay of 98 days in the appeal which stand condoned considering lockdown situation arising out of Covid-19 Pandemic. 3. The Ld. Sr. DR advanced arguments supporting the case of the revenue and cited various judicial decisions to support the assessment framed by Ld. AO. The Ld. AR controverted the same and referred to the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT, Corporate Circle 3(1) without applying his mind. The facts mentioned in the approval proposal were not correct. Thus, even the basic details were not verified by Ld. AO before issuing notice u/s 148 and the reopening was merely on the basis of information received from ACIT, Corporate Circle 3(1), Chennai. As per records, the jurisdiction of the assessee vest only with ITO, NCW 3(4), Chennai and DCIT, NCC 8(1) had no jurisdiction over the assessee. 5.2 In the light of above stated facts, Ld. CIT(A) concurred with assessee submissions and held as under: - 5.2.14. FINDINGS; The ACIT, Corp Cir 3(1) vide letter dt. 23/3/2018 (it appears that there is a typographical mistake in year as 2017) has informed the present A.O to reopen the assessment of the appellant for taxing the short term capital gain while he had already reopened the assessment of the company M/s Thulasi Mohan Construction P.Ltd for the year under consideration for taxing the same capital gain. The appellant has pointed out that the Department was not clear on whose hands the income is to be taxed and had proceeded to tax in the hands of both the company and the firm which is not legally tenable. As o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rutiny assessment and further the address is mentioned as Porur address, which was no longer the address of the appellant. Consequent to the Cadre Restructuring of the Department w.e.f 15/11/2014, the jurisdiction of the appellant for Alwarpet, Chennai 600018 address lies With Non Corp Range 3. In spite of that, the present A.O, DCIT, NCC 8(1) had issued the notice u/s 148 to the appellant, to the Porur address. Moreover, the A.O has wrongly invoked the provision of clause (a) of Explanation 2 of Section 147, which applies only where no return of income has been furnished by the assessee. However, in the case of the appellant, the return of income was filed and the scrutiny assessment u/s 143(3) was completed by the jurisdictional A.O accepting the returned Income of the appellant. Therefore, I am in agreement with the appellant that the present A.O has wrongly invoked the provisions of Clause (a) of Explanation 2 of Section 147, which applies only where no return of income has been furnished by the assessee. The A.O has not perused the original assessment records and had proceeded to issue the notice u/s 148 without verification of the documents on record. Further, the A.O has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiring the assessee to pay the balance tax for the Asst Year 2011-12. e)Copy of the Notification of the Income Department dated 15/11/2014 redesignating the Business Range XV to Non Corporate Range 3. I have examined all the documentary evidence furnished by the appellant with respect to jurisdiction and also perused the judicial decisions relied upon by the appellant. As stated earlier, in the original scrutiny assessment order u/s 143(3) dated 27/3/2014, the then A.O has given a categorical finding with the necessary documentary evidence in the assessment order that the jurisdiction of the appellant lies with Business Ward XV (4) for the address at Alwarpet, Chennai 600018. As per the latest Jurisdiction order, consequent to the Cadre Restructuring of the Department, the present jurisdiction of the appellant lies with Non Corp Range 3, Chennai. Thereafter, the ITO, NCW 3(4) had also issued letter dated 29/1/2016 to the appellant for furnishing return and letter dated 27/10/2017 to pay the balance tax for the A. Y 2011- 12. Therefore, consistently, the Department had issued the assessment order dt. 27/3/2014 by the ITO, Business Range XV(4) (predecessor jurisdictional AO) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O has no authority to assume jurisdiction u/s 147 of the Act and hence continuation of the proceedings u/s 147 or the Act pursuant to such notice which lacked jurisdiction is without the authority of law and cannot be sustained. Further, the judicial decisions relied upon by the appellant are also squarely applicable for the case under consideration. In view of the facts and legal position stated herein and also respectfully following the decisions of the Hon'ble Courts cited supra, the action of the A.O in assuming jurisdiction and in reopening the assessment and the consequent reassessment made u/s 144 r.w.s 147 of the Act is held to be without valid jurisdiction and thus annulled. As the Notice u/s 148 is not a valid notice and the consequent reassessment u/s 144 r.w.s 147 has been held to be without valid jurisdiction and annulled, I do not find it necessary to adjudicate the other objections raised by the appellant as it would only be academical. Therefore, these grounds of appeal are partly allowed. Thus, the assessment order was held to be without jurisdiction and therefore, annulled. Aggrieved as aforesaid, the revenue is in further appeal before us. Ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Delhi in the case of Abhishek Jain vs. ITO (94 Taxmann.com 355) which held that in terms of Sec. 124(3)(b), the assessee could not call in question the jurisdiction of an Assessing Officer after expiry of one month from date of service of reassessment notice. However, in the present case, the reassessment notice has been issued at old address and the assessment order is an ex-parte order. The assessee has challenged the jurisdiction of Ld. AO at the first instance before first appellate authority. Another decision cited is the decision of Hon ble High Court of Allahabad in CIT vs. All India Children Care Educational Development Society (41 Taxmann.com 2013). In that case, the assessee questioned the jurisdiction during second appeal. Further, this was a case of transfer of case from one AO to another AO. The Hon ble Court held that the question of jurisdiction could have been raised before AO within the period of one month but it was not raised. This plea was not put forward even during first appellate proceedings. The same is not the case here. Another decision of same court in Bal Chand Jain Sons vs. DCIT (41 Taxmann.com 254) is a case of transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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