GAJGAMINI INVESTMENT & FINANCE P. LTD.. (SUCCESSOR TO VILOMA EQUITY SERVICES P. LTD.),ANDHERI (EAST) vs. ITO WARD 11(3)(3), MUMBAI, AAYKAR BHAVAN, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL
“G” BENCH MUMBAI
BEFORE SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER &
SHRI SANDEEP GOSAIN, JUDICIAL MEMBER
Gajgamini
Investment
&
Finance P. Ltd.,
(Successor to Viloma Equity
Services P. Ltd)
Office No. 102, A wing, 1st
Floor,
Mittal
Commercial,
Near Mittal Indl.
Estate,
Andheri
Kurla
Road
–
400059. Vs.
ITO, Ward 11(3)(3)
429, 4th Floor, Aaykar
Bhavan,
MK
Road,
Mumbai – 400020. PAN/GIR No. AABCG3951A
(Applicant)
(Respondent)
Assessee by Shri Ashok Bansal & Ajay Daga
Revenue by Shri Swapnil Choudhary, Sr. DR
Date of Hearing
29.07.2025
Date of Pronouncement
24.09.2025
आदेश / ORDER
PER SANDEEP GOSAIN, JM:
The present appeal has been filed by the assessee challenging the impugned order dt. 25.09.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National
Faceless Appeal Centre, Delhi (NFAC) for the assessment year 2017-18. 2
Gajgamini Investment & Finance P. Ltd ., Mumbai.
At the very outset, Ld. AR has moved an application for admitting ground No. 1 raised in the present appeal as additional grounds as the same is legal in question and was not raised before any of the lower authorities. 3. After having gone through the ground raised by the assessee and hearing the parties on this ground, we find that this ground raised by the assessee is purely legal in question and requires no further evidence therefore while relied upon the decision in the case of NTPC V/s. CIT(1998) 229 ITR 383 (SC) . we allow the application for raising additional ground and consequently the said ground is admitted to be heard on merits. 4. Since ground No. 1 raised by the assessee is legal in question and goes to the roots of the case therefore we have decided to adjudicate the same firstly. Ground No. 1 The assessment order u/s 143(3) of the Act pursuant to notice issued u/s 143(2) of the Act is null & void as the ITO who issued the notice & who passed the order was not having pecuniary juri iction over the appellant in as much as the return was filed declaring total income of Rs. 1,11,27,900/- u/s 115JB of the Act for which the juri iction vests with the ACIT/DCIT. 5. This ground raised by the assessee relates to challenging order of assessment passed u/s 143(3) of the Act pursuant to notice u/s 143(2) of the Act as null and avoid on the ground that the same was issued by ITO, who
3
Gajgamini Investment & Finance P. Ltd ., Mumbai.
was not having pecuniary juri iction over the assessee in as much as the return was filed declaring total income of Rs. 1,11,27,900/- u/s 115JB of the Act while filing his return and as per Instruction No. 1 of 2011 dated
31.01.2011 issued by CBDT, pertains to juri iction based on income. According to this circular, juri iction of corporate assessee’s, whose income exceeds 30 lakhs lies with ACIT / DCIT. In this regard we place reliance upon the decision in the case of Ashok Devichand Vs. Union of India (452 ITR 43) (Bom), wherein it was held as under:
Petitioner is impugning a notice dated 30th March, 2019
issued under section 148 of the Income Tax Act, 1961 (the Act) for A.Y. 2012-13 and order passed on 18th November, 2019
rejecting Petitioner's objection to reopening on various grounds.
2. The primary ground that has been raised is that the Income
Tax Officer who issued the notice under section 148 of the Act, had no juri iction to issue such notice. According to Petitioner as per instruction No. 1/2011 dated 31st January, 2011
issued by the Central Board of Direct Taxes, where income declared/returned by any Non-Corporate assessee is up to Rs.
20 lakhs, then the juri iction will be of ITO and where the income declared returned by a Non Corporate assessee is above Rs. 20 lakhs, the juri iction will be of DC/AC.
3. Petitioner has filed return of income of about
Rs.
64,34,663/- and therefore, the juri iction will be that of DC/AC and not ITO. Mr. Jain submitted that since notice under section 148 of the Act has been issued by ITO, and not by DC/AC that is by a person who did not have any juri iction over Petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice.
4
Gajgamini Investment & Finance P. Ltd ., Mumbai.
We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, 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 juri ictional 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 juri iction 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. Consequently the order dated 18th November, 2019 rejecting Petitioner's objection is also quashed and set aside." 6. However, the reliance is being placed by Ld. DR on Sec. 124(3) but the same is of no help as provisions of Sec. 124(3) of the Act, refer to Sec. 120, which applies only to ‘territorial juri iction’ and not to other juri iction and in this case the assessee has raised the issue on juri iction other than territorial juri iction. Thus, in our view the issue of validity of juri iction is a condition precedent to the validity of any assessment order. As in the present case, the assessee’s income exceeds 30 lakhs, and the assessment made pursuant to notice issued by the ITO who was vested with no juri iction as per CBDT Instruction No.
5
Gajgamini Investment & Finance P. Ltd ., Mumbai.
1 of 2011. Therefore reliance is being placed upon the decision of Juri ictional Hon’ble Bombay High Court in the case of Mr. Peter Vax Vs CIT in Tax Appeal No. 19,
21 to 25 of 2017, wherein it was held as under:
44. The ITAT with respect has misconstrued the provisions of Section 124 of the IT Act. Sections 120 to 124 of the IT Act no doubt refer to the juri iction of the Income Tax Authorities.
However, from the scheme of these provisions, it is apparent that reference is to the territorial juri iction of the authorities.
Section 124(1) refers to direction or order issued under Section 120 vesting with juri iction in the Assessing Officer over any area, limits of an area, etc. Section 124(2) provides that where a question arises under this Section as to whether the Assessing Officer has juri iction to assess any person, the question will have to be determined by the authorities specified which will include, in a given case the Board. Section 124(3) then provides that no person shall be entitled to call in question the juri iction of an Assessing Officer, where an action has been taken under Section 132 or 132A after the expiry of one month from the date on which he was served with a notice under Section 153C or after the completion of the assessment, whichever is earlier. Now, this provision refers to mainly the territorial juri iction of the Assessing Officer. This provision cannot be interpreted to mean that an assessee is left without a remedy where the Assessing Officer invokes the provisions of Section 153C of the IT Act without fulfillment of the juri ictional parameters prescribed therein.
7. After having considered the facts and circumstances of the present case and also taking in to consideration the legal preposition as discussed by us above, we have no hesitation to quash assessment proceedings as the income of the assessee exceeds 30 lakhs since the assessment notice in the present case was issued and the assessment
6
Gajgamini Investment & Finance P. Ltd ., Mumbai.
order was passed by ITO who was vested with no juri iction. Accordingly this ground raised by the assessee stands allowed by holding assessment order u/s 143(3) of the Act in pursuant to notice issued u/s 143(3) of the Act as null and avoid.
8. Since we have allowed Ground No. 1 raised by the assessee and quashed the assessment order passed in the present case therefore there is no need to adjudicate other grounds raised by the assessee and the same are kept open.
9. In the result the appeal filed by the assessee stands allowed.
Order pronounced in the open court on 24.09.2025 (VIKRAM SINGH YADAV) (SANDEEP GOSAIN)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dated 24/09/2025
KRK, PS