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TMI Blog2024 (11) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, the assessment as framed by the AO, International Tax, is bad in law. Thus no hesitation in holding that since the assessment has been framed by the AO of International Tax on the basis of notice u/s 148 issued by the non-jurisdictional AO, Ward-3(4), Ludhiana, the assessment as framed by the AO of International Tax is quashed. Decided in favour of assessee. - Shri A.D. Jain, Vice President And Dr Krinwant Sahay, Accountant Member For the Assessee : Shri Sudhir Sehgal, Advocate For the Revenue : Shri Dharamvir, JCIT, Sr. DR ORDER PER DR. KRINWANT SAHAY, A.M.: Appeal in this case has been filed by the Revenue against the order dated 23.03.2022 of the ld. Commissioner of Income Tax (Appeals)-43, New Delhi [herein referred to as CIT(A) ] 2. The grounds of appeal raised by the Revenue, are as under : 1. Whether on the facts and circumstances of the case, Ld. CIT(A) has erred in law and facts in annulling the order passed by the AO 147/143(3) of the IT Act 1961. In spite of the facts that the objections were raised by the assessee only at later stage which were disposed off through passing of speaking order 12.12.2019 before passing assessment order. The case law and judgments c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as~ reported in (2020) 81 ITR Trib. 450 and of the Delhi Bench of the ITAT in the case of Sh. Trilok Singh, Kurukshetra in ITA No. 3995/Del/2018. 4. That the respondent craves leave to add or amend any grounds of appeal before the appeal is finally heard or disposed off. 4. From the records, we find that there is a delay of 57 days in filing the Cross Objections by the Assessee. During the proceedings before us, the ld. Counsel for the Assessee has filed a letter dated February 4, 2023 giving reasons, in detail, for the delay caused which is supported by an Affidavit dated 19.04.2023 submitted by Representative of the Assessee, which is reproduced as under: -- 5. A request has been made by the ld. Counsel to condone the delay of 57 days in filing the Cross Objections. 6. We have considered the facts and reasoning furnished by the Assessee in his aforesaid letter which was supported by an Affidavit. In view of the explanation and reasoning given, the delay of 57 days in filing the appeal is condoned and we proceed to hear the case on merits. 7. In his order, the ld. CIT(A) has decided the case on technical issue relating to issuance of Notice u/s 148 of the Income Tax Act, 1961 (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicated first before proceeding to the merits of the case. 10 After discussion with the DR, the request of the ld. Counsel of the assessee was proceeded to and the ld. Counsel of the assessee argued that the assessee is a non-resident which is borne out from the following facts: The assessee is a 'Non-Resident' which is evident from the following facts: 1. The letter was filed to the ITO Ward-3(4), Ludhiana, vide letter dated 24.04.2017 for the A.Y 2009-2010 filed on 24.04.2017, proof attached with the letter dated 25.12.2019, filed to the Assessing Officer International Taxation. 2. There is order of the ITAT in FTA No. 546/CHD/2017 for the A.Y 2011-12, in which, there is categorical finding of the Hon'ble Bench, in para 7, page 3 of the 'Paper Book' submitted on 02.08.2024, that the assessee is residing out of India. Further, there is a letter dated 14.07.2017, addressed to the Hon'ble Bench in the appeal for the A.Y 2011-2012, asking for condonation of delay and in that application also, it has been stated, that the assessee is 'Non Resident' and permanently settled in USA and is having American Passport which is also a matter of record. 3. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Counsel of the assessee, that he mentioned the status on the return form as Resident and further argued that the assessee has a passport issued by United State of America vide Passport dated 16.05.2014 and he is a citizen of USA and this fact was also there in the records of the Department in the earlier years. He had a bank account in USA. The Counsel relied upon the judgment of the ITAT Delhi in the case of Sh. Mukesh Kumar vs. ITO in ITA No. 2358/Del/2012 vide order dated 12.06.2015, in which, similar issue was there and it was held that the notice as issued u/s 148 by the non-jurisdictional Assessing Officer is non-est in the eyes of law and Assessing Officer will not get valid jurisdiction, even though the case is transferred under the provisions of Section 127 of the Income Tax Act, 1961. The Counsel of the assessee pointed out that the notice having been issued by non-jurisdictional Assessing Officer and the assessment having been framed by the other Assessing Officer is squarely covered by the above order. He relied upon the following case laws: a) Mukesh Kumar Vs ITO, ITA No.2358/Del/2012 2015(6) TMI 1142, ITAT Delhi. Validity of notice after case being transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Kishore Mehta Vs. ACIT, Bombay High Court reported in [2024] 161 taxmann.com 553 (Bombay) Section 68, read with section 148, of the Income-tax Act, 1961 - Cash credit (Accommodation entries) - Assessment year 2016-17 - Assessee, a non-resident Indian (NRI), filed his return of income which was processed under section 143(1) - Thereafter, on basis of information that assessee had undertaken a financial transaction with a company which was providing accommodation entries of bogus sale/purchase and bogus unsecured loans to various entities in lieu of cash, Assessing Officer issued reopening notice under section 148 -Assessee submitted that assessee being NRI, jurisdiction would lie with Income Tax Officer (International Taxation) and thus Assessing Officer had no jurisdiction to issue notice under section 148A(b) - It was found that Assessing Officer had in effect admitted that he had no jurisdiction, but he issued notice because information and PAN of assessee were transferred to his charge at fag end of limitation period-Whether therefore, impugned notice issued under section 148A(b) was to be set aside-Held, yes [Paras 8 and 17] [In favour of assessee] c) Saroj Sangwan Vs Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court, as cited supra, we have no hesitation in holding that the Assessing Officer Ward-3(4), Ludhiana did not have valid jurisdiction to issue the notice u/s 148, since it was in the knowledge of the department earlier that the assessee was a non-resident and, even the return for AY 2011-12, had been filed, earlier to the notice issued u/s 148 for the year under consideration and the Assessing Officer, International Tax had proceeded with the framing of the assessment without issuing fresh notice u/s 148 and, thus, the assessment as framed by the Assessing Officer, International Tax, is bad in law. We are fortified by the judgment of co-ordinate bench in the case of Sh. Mukesh Kumar as cited supra in which it has been held as under: The issue of valid jurisdiction is a condition precedent to the validity of any assessment under Section 147 of the Act; therefore, the assessment made pursuant to such notice is bad in law. In support of this proposition we rely upon the cases of Hon'ble Apex Court- in the cases of Y. Narayana Chetty Vs. ITO, 35 ITR 388, 392 (SC); CIT Vs. Maharaja Pratap Singh Bahadur, 41 ITR 421 (SC); and CIT Vs. Robert, 48 ITR 177 (SC). In the light of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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