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TMI Blog2024 (5) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal filled by assessee allowed. - Dr. Manish Borad, Accountant Member For the Assessee : Sunil Surana, FCA. For the Department : L.N. Dash, Sr. DR. ORDER PER MANISH BORAD, ACCOUNTANT MEMBER: This appeal filed by the assessee pertaining to the Assessment Year (in short AY ) 2013-14 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the Act ) by ld. Commissioner of Income-tax (Appeals)-NFAC, Delhi, [in short ld. CIT(A) ] dated 08.12.2023 arising out of the Assessment Order framed u/s 147 read with Section 144B of the Act dated 27.09.2021. 2. The assessee is in appeal before the Tribunal raising the following grounds of appeal: 1. For that the Ld. CIT(A) erred in confirming the action of the AO when the notice u/s 148 issued by the ACIT Circle 24(2), Hooghly was without jurisdiction, duly so admitted which was evident from the communication of the AO and transfer of the file to ACIT completing the reassessment and hence the entire reassessment is liable to be quashed. 2. For that the Ld. CIT(A) erred in confirming the action of the AO when the AO issuing notice had no jurisdiction to issue notice in view of the CBDT s notification with regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manish Jain vs. ITO in ITA Nos. 638 639/KOL/2022 order dated 03.05.2024 as the facts are identical so much so that in the case of assessee also no valid notice u/s 148 of the Act has been issued by the jurisdictional assessing officer. In support, reference has been made to various details filed in the paperbook containing 34 pages. It was further, submitted that the reopening is also bad in law for the reason that ld. AO did not make the addition for the reason on which reopening proceedings have been carried out and therefore, is covered by the decision of Hon'ble Jurisdictional High Court in the case of CIT vs. M/s. Infinity Infotech Parks Ltd. in ITAT No. 60/2014, G.A. No. 1736 of 2014 and this Tribunal in the case of Artex Property Consultants (P) Ltd. vs. ITO in ITA No. 798/KOL/2023 order dated 16.10.2023. 5. On the other hand, ld. D/R vehemently argued supporting the orders of both the lower authorities and stated that the legal issue has been elaborately decided by ld. CIT(A) and that notice u/s 148 of the Act was issued by ACIT, Circle-24(2), Hooghly. 6. We have heard rival contentions and perused the records placed before us. The validity of the assessment order u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record, we find that the assessee has filed the return of income with AC, Range-24, Kolkata whereas the notice u/s 148 of the Act dated 31.03.2017 and 143(2) of the Act dated 6.7.2017 were issued by ITO, Ward-61(4), Kolkata. We note that the assessee objected to the jurisdiction of the AO who issued the said notices vide letter dated 1.4.2017 and considering the assessee s request, the case was transferred to ITO, Ward-6(1), Kolkata and the assessment was framed accordingly. Now the question before us whether the assessment so framed by ITO, Ward-6(1), Kolkata is invalid. In view of the fact that notice u/s 148 as well as 143(2) of the Act were issued by ITO, Ward-61(4), Kolkata. We have perused the various decisions of Hon ble Calcutta High Court as cited before us and same are discussed as under: a) In the caser of PCIT vs. Mohan Chand Motilal (supra), the Hon ble Jurisdictional High Court has upheld the tribunal order. In this case the Tribunal dismissed the appeal filed by the revenue on the ground that the same was filed by ACIT-39, Kolkata while the jurisdiction was with ITO-44 which was upheld by the Hon ble Court by holding that there was a fundamental error on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Taking note of the said letter the Tribunal, in our view, rightly held that the proviso to Section 292BB would not stand attracted and the said Section cannot be made applicable to the assessee's case. The Tribunal, thereafter, analysed as to the correctness of the submission of the revenue seeking to sustain their stand by referring to a notice issued by the assessing officer, who at the relevant point had no jurisdiction over the assessee and, on facts, found that there is no valid compliance of Section 143(2) of the Act as the notice issued under Section 143(2) of the Act by the assessing officer/Income Tax Officer, Ward-3(1) had no jurisdiction over the assessee at the relevant time. The Tribunal to support its conclusion placed reliance in the case of CIT Another Ys. Mukesh Kumar Agarwal [2012] 345 ITR 29 (Allahabad), wherein it was held that the assessing officer did not have jurisdiction to proceed further and make assessment since notice under Section 143(2) of the Act was admittedly not issued. As in the case on hand, the revenue sought to take coverage under Section 292BB of the Act which was rejected on the ground that the very foundation of the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; Court holding that where the assessing officer of a particular Circle passed an assessment order under Section 143(3) without issuing notice under Section 143(2) and only in pursuance with the notice issued under Section 143(2), he had no jurisdiction over the assessee at the relevant time and such assessment order was liable to be set aside. It is the submission of the learned standing counsel for the Department..-.that the assessee had not raised the question of jurisdiction before the assessing officer but participated in the assessment proceedings and, therefore, could not have raised the said issue before the Tribunal. This argument cannot be acceded to for more than one reasons, firstly, there cannot be any estoppel against the statute. It is not the case of the revenue that the assessee consciously waived his right to raise such a jurisdictional issue. Secondly, the assessee had filed an application before the learned Tribunal seeking leave to raise additional grounds and this application was held and after contest the application was allowed. The learned Tribunal, in fact, recorded that the Department could not controvert any of the submissions of the assessee on the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to be adjudicated at later stage if need arises for the same. 10. On perusal of the above decision and the ratio laid down by the Hon'ble Courts referred in the decisions of Hon'ble Tribunal in the case of Manish Jain (Supra), we find that the same is squarely applicable on the legal issue raised before us in the instant appeal and therefore, respectfully following the same, we are inclined to hold that since no valid notice u/s 148 of the Act was issued by the jurisdictional assessing officer for reopening of the assessment proceedings, the alleged re-assessment proceedings are bad, illegal and void ab initio and deserves to be quashed. Accordingly, additions made in the said re-assessment proceedings stands deleted on this legal ground itself. 11. As far as other legal issues and merits of the case are concerned, since we already quashed the re-assessment proceedings carried out dated 29.07.2021, dealing with the remaining grounds will be merely academic in nature and therefore, we refrain from dealing with the same as they have become infructuous. 12. In the result, the appeal filed by the assessee is allowed in the terms indicated herein above. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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