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TMI Blog2024 (1) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing the judgment in the case of Ashok Devichand Jain vs UOI Ors [ 2022 (3) TMI 1466 - BOMBAY HIGH COURT] held the assessment completed u/s 143(3) of the Act by issuing notice u/s 143(2) of the Act by the DCIT, Central Circle-2, Thane as without jurisdiction and consequently quashed the assessment. We further observe that the jurisdictional co-ordinate bench in the case of DCIT Vs Parmar Built Tech [ 2022 (9) TMI 1547 - ITAT MUMBAI] also dealt with the identical issue and by following the judgment of Ashok Devichand Jain (supra), quashed the assessment order in the identical facts. As observe that in the case of Bhagyalaxmi Conclave Pvt Ltd [ 2021 (2) TMI 181 - ITAT KOLKATA] also dealt with the notice issued u/s 143(2) of the Act and ultimately held the notice issued by the DCIT as defective and consequently quashed the assessment by holding that the assessing authority, who passed the order u/s 143(3) i.e. DCIT-13(1), Kolkata has not issued notice u/s 143(2) of the Act and also for the reason that the jurisdiction of these cases lies with the ITO and not the DCIT. It is trite to say that as per dictum in the case of ACIT VS Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C building is also under construction and completed till 8th floor. The assessee has completed construction of 6 rehabilitation building of ground + 7th floor and possession has already given to unit holders. During the year, it has sold various flats of Building Evershine Cosmic Gaurang Legend and registered the sale agreements made with buyers with Stamp Duty Authority. The details of sale of flats are reflected in the AIR information on the PAN database of the assessee. The copies of Index-II have been collected from the Stamp Duty Authorities. On perusal of Index-II of these registered agreements, it is noticed that the Market value of the flats as per stamp duty authority is more than the agreement value of the flats. Vide final show cause notice dated 05/12/2016; assessee has been show cause as to why provision of section 43CA should not be applicable in its case. The relevant portion of the show cause is reproduced as under: During the scrutiny proceedings, details of flats registered with stamp Authority were received. On verification of the Index, it is notice that Market value adopted by Stamp Duty Authority is more than the Agreement value of the property. The details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yee cheque. 7.2 The appellant, had, although, relied upon the various judgments as mentioned above but the pari materia contained in those judgments and the facts and circumstances mentioned in those judgments are altogether different and are not applicable to the facts of the present case. In most of the judgments, the entire sale consideration amount was already paid at the time of entering into agreement to sell. 7.3 Further, the assessee had failed to establish the entire sale consideration were received through payee's account cheque prior to 01/04/2013 and also that the sale deeds were registered by the assessee during the relevant previous year only, therefore, since the appellant has disputed the applicability of provisions of Section 43CA of the Act on the ground that booking for sale of flats in question were made prior to the previous year which is prior to the date on which provisions of Section 43CA of the Act are applicable i.e. on 01/04/2013. 7.4 It is pertinent to note that the Legislature has specifically provided the remedy for a situation where the property is sold by an agreement and subsequently a sale deed is executed. Thus, in case of any difference of da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved at the time of agreement other than cash. In the case in hand, the booking is claimed to have been made prior to 01/04/2013 whereas the sale deeds were executed after 01.04.2013 which falls in the previous year relevant to the assessment year under consideration, therefore, provisions of Section 43CA are applicable for the assessment year under consideration. 7.6 Thus, once the provisions itself has taken care of such a situation or difference in date of prior agreement, then the applicability of provisions cannot be questioned based on mere existence of prior agreement. The transfer under the provisions of section 43CA is recognized only when a registered document is executed and therefore, in view of the facts and circumstances of the case, since the transfer through sale deed is made during, the previous year relevant to the assessment year under consideration for which the provisions of Section 43CA are applicable. In such a situation, merely because an agreement has taken placed prior to 01/4/2013 would not takeaway the transaction from the ambit of the provisions of Section 43CA of the Act. More particularly when the entire sale consideration was not made through account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Income Declared Income Declared (Mofussil areas) (Metro cities) ITOs ACs/DCs ITOs DCs/ACs Corporate returns Upto Rs. 20 lacs Above Rs. 20 lacs Upto Rs. 30 lacs Above Rs. 30^ lacs Non-corporate returns Upto Rs. 15 lacs Above Rs. 15 lacs Upto Rs. 20 lacs Above Rs. 20^ lacs Metro charges for the purpose of above instructions shall be Ahmedabad Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011. 7. The Assessee further claimed that according to the monetary limits set out by such Instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, ITO, Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1), Mumbai and it was not feasible to migrate the PAN having returned of income exceeding Rs. 30 lakhs to the charge of DCIT, Circle 12(3)(1), Mumbai, as the time available with the ITO 12(3)(1) was too short to migrate the PAN after obtaining administrative approval from the higher authorities by 31st March, 2019 5. The notice under section 148 of the Act is jurisdictional notice and any inherent defect therein is not curable. In the facts of the case, notice having been issued by an officer who had no jurisdiction over the Petitioner, such notice in our view, has not been issued validly and is issued without authority in law. 6. In the circumstances, we have no hesitation in setting aside the notice dated 30th March, 2019. 7.2 We observe that though the Hon ble High Court has dealt with the notice issued under section 148 of the Act; however, it is a fact that the Hon ble High Court has also dealt with the Instruction No.1/2011 dated 31/01/2011 issued by the CBDT which is also under consideration before us and notice under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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