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Income Tax Appellate Tribunal, “C” BENCH KOLKATA
Before: Shri Sanjay Garg & Shri Rajesh Kumar
order : November 21, 2022 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 26.03.2019 of the Commissioner of Income Tax(Appeals)-15, Kolkata [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal:
“1.For that in view of the facts and in the circumstances the Ld. CIT(A) erred in confirming the action of the AO in disallowing trading loss of Rs.65,10,646/- suffered by the appellant in trading of shares and in view of the facts and in the circumstances it may kindly be held accordingly.
2. Without prejudice to Ground No. 1 above, the Ld. CIT(A) erred in confirming the action of the AO without appreciating the fact that the AO had wrongly disallowed the aforesaid sum and added unjustifiably the sum u/s 68 without disposing the onus lying on him and in view of the facts and in the circumstances the order of the Ld. CIT(A) may
Assessment Year: 2014-15 M/s Sachida Sales Pvt. Ltd kindly be quashed/ cancelled / set aside and it may be kindly held accordingly.
Without prejudice to Grounds No. 1 & 2 above, the Ld. CIT(A) erred in confirming the order of the AO without considering the fact that the AO had not made any investigation on its own and had merely and wrongly relied upon the report of DIT, Investigation Wing, Kolkata and in view of the facts and in the circumstances the order of the Ld. CIT(A) is liable to be quashed / cancelled / set aside and it may kindly be held accordingly. 4 Without prejudice to Grounds No. 1, 2 &3 above, the Ld. CIT(A) erred in confirming the order of the AO without considering the judgment of Jurisdictional Tribunal and the Jurisdictional High Court in the matter which were placed before the Ld. CIT(A) in course of hearing and in view of the facts and in the circumstances the order of the Ld. CIT(A) is liable to be quashed / cancelled set aside and it may kindly be held accordingly 5. For that your petitioner craves the right to put additional grounds and / or to alter / amend modify the present grounds at the time of hearing.” Apart from the above grounds of appeal, the ld. Counsel for the assessee for the first time before this Tribunal, has taken the following additional grounds of appeal:
For that in view of the fact and in the circumstances, the Ld. ITO, Ward-9(4), Kolkata did not possess the jurisdiction to pass the impugned order since the jurisdiction of the assessee vested with ITO, Ward-13(1), Kolkata and as such the impugned order passed by the ITO, Ward-9(4), Kolkata is void of jurisdiction and as such bad in law and it may be held accordingly.
Without prejudice to Ground No.1 above, the ITO, Ward-9(4), Kolkata was duly intimated by the app4ellant of the jurisdiction vested with ITO, Ward-13(1), Kolkata and as such the order so passed by the ITO, Ward-9(4), Kolkata is void ab initio and it may be held accordingly. 2. At the outset, the ld. Counsel for the assessee for the assessee has submitted that the issue on merits is relating to the penny stock and he has further submitted that the aforesaid issue on merits relating to bogus capital gains/loss on account of trading in penny stock has been settled by the Hon’ble Jurisdictional Calcutta High
Assessment Year: 2014-15 M/s Sachida Sales Pvt. Ltd Court in the case of PCIT vs. Swati Bajaj in IA No.GA/2/2022 and Others and in view of the said decision, the issues on merits are covered in favour of the Revenue and against the assessee. The ld. counsel, therefore, has not pressed his arguments on the grounds of appeal taken on merits. However, the ld. Counsel for the assessee has submitted that the impugned assessment order suffers from jurisdictional error. He has submitted that the concerned Assessing Officer, in fact, did not have territorial jurisdiction to frame the assessment and, therefore, the assessment framed by the Assessing Officer was void by ab initio. The ld. Counsel, in this respect, has relied upon certain documents to submit that the address of the assessee was changed and the information regarding change of address was duly given to the concerned Income Tax Authorities that the changed address of the assessee was also incorporated with the Registrar of Companies.
3. Since the issue raised by the ld. Counsel for the assessee by way of additional grounds hit at the very jurisdiction of the concerned Assessing Officer to frame the impugned assessment order, therefore, we are of the view that the aforesaid issue being vital is required to be adjudicated. However, since the issue has not been taken by the assessee before the lower authorities and has been taken for the first time before this Tribunal by way of additional grounds and the assessee relies upon certain document which he has claimed to have been submitted before the lower authorities, we, therefore, deem it proper to restore this issue to the file of the CIT(A) for adjudication in accordance with law. We accordingly restore the matter to the file of the ld. CIT(A) for the limited purpose for adjudication on the issue of jurisdiction as to whether the Assessing Officer had got territorial jurisdiction to frame the impugned assessment and as to whether the Assessment Year: 2014-15 M/s Sachida Sales Pvt. Ltd impugned assessment framed by the Assessing Officer was void ab initio being without jurisdiction. Needless to say that the ld. CIT(A) will give proper opportunity of hearing to the assessee considering the relevant material and documents and, thereafter decide the issue in accordance with law.
In the result, the appeal of the assessee is treated as allowed for statistical purposes.