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TMI Blog2024 (5) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... y ITO, Ward 61(4), Kolkata. We are inclined to hold that the order framed by ITO, Ward-6(1), Kolkata without issuing any notices u/s 148 of the Act as well as u/s 143(2) of the Act when the officers have sufficient time to issue the notices when the assessee raised objections of jurisdiction is apparently without jurisdiction and is accordingly quashed. Appeals of the assessee are allowed. - SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI SONJOY SARMA, JUDICIAL MEMBER For the Appellant : Shri Miraj D Shah, A.R For the Respondent : Shri P.P Barman, Addl. CIT Sr. D.R ORDER PER RAJESH KUMAR, AM: These are the appeals preferred by the assessee against the separate orders of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A) ] dated 06.10.2022 for the AY 2010-11 2015-16. 2. Issue raised in ground no. 1 is against the passing of assessment order u/s 147/143(3) of the Act by the AO without valid jurisdiction which has been affirmed by the Ld. CIT(A). 3. Facts in brief are that the assessee has filed return of income with ACIT, Range-24, Kolkata on 14.06.2010 declaring total income of Rs. 2,83,40,000/-. The assessment was re-opened y/s 147 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.12.2022.(Cal HC) v) PCIT-5, Kolkata vs. Bhubaneswari Developers Pvt. Ltd. in ITAT/220/2022 GA /2/2022 dated 06.12.2022.(Cal HC) vi) PCIT-5, Kolkata vs. M/s Dhanlaxmi Conclave Pvt. Ltd. in ITAT/214/2022 GA/2/2022.(Cal HC) 5. The Ld. D.R on the other hand submitted that the jurisdiction of AO who issued the notices u/s 148 of the Act as well as u/s 143(2) of the Act was determined on the basis of PAN data. The Ld. D.R therefore prayed that upon the assessee s request the case file was transferred to ITO, Ward-6(1), Kolkata and therefore the assessment has been framed correctly. On the issue of issuance of notices by wrong ITO ,the Ld. D.R stated that the same were issued on the basis of PAN data available. 6. In the rejoinder of Ld. A.R strongly rebutted the grounds given by the Ld. D.R by submitting that the assessee filed the return of income with ACIT, Range-24, Kolkata and therefore the arguments as taken by the Ld. D.R qua jurisdiction on the basis of PAN data is devoid of any merit as in that event the said notices should have been issued by Range-24, Kolkata. 7. After hearing the rival contentions and perusing the material on record, we find that the assessee has filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s case under the circumstances mentioned in Section 292BB. This question was considered by the Tribunal and it was pointed out that Section 292BB provides that where an assessee has appeared in any proceedings or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any of the provision of the Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under the Act that the notice was not served upon him or not served upon him in time or served upon him in an improper manner. This amendment to the Act was introduced with effect from 01.04.2008 and the assessment year under consideration is AY 2007-08. In any event, the Tribunal examined as to whether at all the revenue can rely upon Section 292BB of the Act and noted that the assessee has filed an objection vide letter dated 16.11.2009 objecting to the issuance of notice under Section 142(1) of the Act without valid service of notice under Section 143(2) of the Act. Taking note of the said letter the Tribunal, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliest of the decision is that of the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax Anr. vs. Hotel Blue Moon reported in [2010] 321 ITR 362 (SC), wherein it was held that if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedure irregularity and is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. This Court in the case of Principal Commissioner of Income Tax-11, Kolkata vs. Nopany Sons reported in 2022(2)TMI 399- Calcutta High Court held that the proviso to Section 292BB could not stand attracted and the said section cannot be made applicable to the assessee's case. Very recently, the Hon'ble Supreme Court in the case of Assistant Commissioner of Income Tax vs. S.K. Industries reported-in [2022] 141 taxmann.com 569(SC) dismissed the Special Leave Petition filed by the revenue against the order of the High ' Court holding that where the assessing officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax, Circle-13(1), Kolkata who completed the assessment.Further, the Tribunal has also noted therelevant decisions and rightly held that the assessment order is bad in law for the reason that the Assessing Officer passed the order under Section 143(2) of the Act without issuing any notice 143(2). We find that there is no substantial question of law arising for consideration in this appeal. Accordingly, the appeal [ITAT/221/2022] fails and is dismissed. Consequently, the connected application [GA/2/2022]stands closed. 7.1. Considering the above facts of the assessee in the light of the aforesaid decisions of Hon ble Calcutta High Court, we are inclined to hold that the order framed by ITO, Ward-6(1), Kolkata without issuing any notices u/s 148 of the Act as well as u/s 143(2) of the Act when the officers have sufficient time to issue the notices when the assessee raised objections of jurisdiction is apparently without jurisdiction and is accordingly quashed. 8. The other issue raised on merits by the assessee are not adjudicated as the appeal of the assessee has been allowed on legal issue however the merit is left open to be adjudicated at later stage if need arises for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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