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TMI Blog2024 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... order sheet. In the present case, the ITO, Ward- 1(1), Jamshedpur passed the assessment order dated 02.12. 2016 without any transfer order u/s 127 and is therefore invalid. Thus the assessment was framed without issuing any valid notice u/s 143(2) from the jurisdictional AO. Appeal of the assessee is allowed. - Shri Rajesh Kumar, AM And Shri Sonjoy Sarma, JM For the Assessee : Shri Somnath Ghosh, Advocate For the Respondent : Smt. Rinku Singh, CIT, DR ORDER PER SHRI RAJESH KUMAR, AM Appeal filed by the assessee is against the order of Ld. CIT(A), Jamshedpur dated 10.10.2017 for AY 2014-15. 2. The assessee has filed the appeal challenging the appellate order on various grounds as contained in the Memorandum of Appeal. The assessee has also filed additional ground vide letter filed on 13.03.2023 challenging the validity of assessment order, which is extracted below: For that in the facts and circumstances of the instant case, the Ld. Commissioner of Income Tax (Appeals)-Jamshedpur acted unlawfully in not appreciating that none of the conditions precedent existed for and/or were fulfilled by the Ld. Income Tax Officer, Ward-191), Jamshedpur for his specious action of framing the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his arguments. 6. The Ld. DR, on the other hand, relied on the orders of the authorities below by submitting that the assessee has not cooperated in the assessment proceedings and thereafter also did not raise the issue before the Ld. CIT(A). However the ld CIT DR filed the order sheet entry dated 06.10.2015 that ITO Ward 3(1) Jamshedpur himself admitted that jurisdiction over the assessee vested with the ITO Ward 1(1) Jamshedpur and he unilaterally transferred the assessment file to the jurisdiction of the ITO Ward-1(1) Jamshedpur who thereafter issued notice u/s 142(1) and framed the assessment u/s 144 of the Act. However the ld DR relied heavily on the decision of the Hon ble Apex court in the case of DCIT (Exemption) Anr. Vs. Kalinga Institute of Industrial Technology dated 01.05.2023 in Petition(s) for Special Leave to Appeal (C) No(s). 29304/2019 wherein it has been held that if the assessee does not object to the issuance of notice u/s 143(2) of the Act by non jurisdictional AO then he is precluded from raising such jurisdictional objection in the subsequent stages. The ld The Ld. DR submitted that under these circumstances in any case the assessee cannot be allowed to rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh notice u/s 143(2) of the Act was issued by ITO, Ward-1(1), Burdwan having jurisdiction over the assessee. Now whether such non-issuance of notice u/s 143(2) of the Act by ld. AO having jurisdiction over the assessee before completing the assessment proceedings is necessary and if such notice u/s 143(2) of the Act is not issued then whether such non-issuance of notice u/s 143(2) of the Act can render the assessment proceedings bad in law. 9. I observe that Hon ble Jurisdictional High Court in the case of Nopany Sons (supra) adjudicated the similar issue and has held as follows: 4. This appeal by the revenue filed under section 260A of the Income-tax Act, 1961, (the Act, in brevity) is directed against the order dated 20-7-2016 passed by the Income-tax Appellate Tribunal, C Bench, Kolkata (Tribunal) in ITA Nos. 1621 1301/Kol/2011 for the assessment year 2007-08. The revenue has raised the following substantial question of law for our consideration. a. Whether on the facts and in the circumstances of the case the Learned Income-tax Appellate Tribunal, C Bench, Kolkata is illegally justified to hold that since notice under section 143(2) was not issued by the ITO - Ward 56(4), Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or Joint Commissioner or Joint Director, who is directed under clause (b) of sub-section (4) of section 120 to exercise or perform all or any of the powers and functions conferred on, or assigned to, an assessing officer under this Act. In the instant case, the order of assessment was challenged on several grounds and, particularly, on the ground that no notice under section 143(2) of the Act was issued within the time prescribed by the assessing officer, who had jurisdiction over the assessment file of the assessee at the relevant time. The Commissioner of Income-tax (Appeals)-XXXVII, Kolkata, (CIT(A)) did not agree with the contentions raised by the assessee that there is failure to comply with the mandatory statutory requirement. The CIT(A) opined that the assessing officer, who originally dealt with the e-return filed by the assessee had issued notice under section 143(2) of the Act. With regard to the merits of the matter, the CIT(A) held it in favour of the assessee. Therefore, the revenue was on appeal before the Tribunal and cross-objection was filed by the assessee questioning that portion of the order of the CIT(A) which held that there is no procedural irregularity com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Mukesh Kumar Agrawal [2012] 25 taxmann.com 112/345 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 the assessing officer was on the issuance of notice under section 143(2) of the Act and the same having been complied with, the revenue cannot take shelter under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction was changed and vested with JCIT(OSD), Exemption, Bhubaneswar. Thus, the jurisdiction was changed between time of filing the return before ACIT, Corporate Circle- 1(2), Bhubaneswar and issuing of notice u/s 143(2) , and was vested with JCIT(OSD) Exemption, Bhubaneswar and as such, the Hon ble Supreme Court held that the jurisdiction was correctly assumed by such authority. However, in the present context, the jurisdiction over the assessee vested with the ITO, Ward-1(1), Jamshedpur vide Notification dated 15.11.2014 issued by the CIT, Jamshedpur whereas the impugned notice u/s 143(2) was issued by ITO, Ward-3(1), Jamshedpur on 31.08.2015. Therefore, the ITO, Ward-3(1), Jamshedpur lacked jurisdiction to issue u/s 143(2) which is non-est in the eyes of law. This is a glaring example of an inherent lack of jurisdiction of the AO in issuing notice u/s 143(2) which means that no valid notice was ever issued by the ITO, Ward- 1(1), Jamshedpur, having valid jurisdiction over the assessee. Further there was no order of transfer u/s 127 for transferring the case from ITO, Ward-3(1), Jamshedpur to ITO, Ward- 1(1), Jamshedpur as coming out from the order sheet. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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