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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: Shri J. Sudhakar Reddy, Hon’ble]
order : January 8th, 2020 O R D E R Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) – Durgapur, (hereinafter the “ld.CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 25/01/2019, for the Assessment Year 2015-16.
The assessee is an individual and has filed her return of income for the Assessment Year 2015-16 on 31/10/2015, declaring total income of Rs.18,35,410/-. The assessment was completed u/s 143(3) of the Act on 26/01/2017 determining total income of Rs.31,05,410/- interalia making an addition of Rs.12,70,000/-, on the ground that the cash deposits in the bank account were not explained. Hence these cash credits and added u/s 68 of the Act. Aggrieved the assessee carried the matter in appeal without success.
Further aggrieved the assessee is in appeal before me, disputing the addition made u/s 68 of the Act.
The assessee filed an additional ground of appeal
. The application for admission of additional ground, reads as follows:-
1. That your appellant had preferred the instant appeal being aggrieved by the appellate order passed by the Ld, Commissioner of Income Tax (Appeals) Durgapur who was pleased to uphold the purported action of the Ld. Assistant Commissioner of Assessment Year: 2015-16 Soma Roy Income Tax, Circle 1, Durgapur in the assessment order framed u/s. 143(3) of the Circle 1, Durgapur in the assessment order framed u/s. 143(3) of the Circle 1, Durgapur in the assessment order framed u/s. 143(3) of the Income Tax Act, 1961 on merits. Income Tax Act, 1961 on merits. 2. . That though verbal arguments on the validity of the assessment order framed ujs. 2. . That though verbal arguments on the validity of the assessment order framed ujs. 2. . That though verbal arguments on the validity of the assessment order framed ujs. 143(3) of the Act were advanced before the Ld. Commissioner of Incom 143(3) of the Act were advanced before the Ld. Commissioner of Incom 143(3) of the Act were advanced before the Ld. Commissioner of Income Tax (Appeals) Durgapur. However in the Grounds of Appeal
, no specific ground on this owever in the Grounds of Appeal, no specific ground on this owever in the Grounds of Appeal, no specific ground on this behalf was urged up before him for adjudication. Accordingly, your appellant with behalf was urged up before him for adjudication. Accordingly, your appellant with behalf was urged up before him for adjudication. Accordingly, your appellant with the leave of your Honour wishes to raise the following grounds as under: the leave of your Honour wishes to raise the following grounds as under: - "1. FOR THAT in the facts and circumstances of the instant case, the Ld T in the facts and circumstances of the instant case, the Ld T in the facts and circumstances of the instant case, the Ld Commissioner of Income Tax (Appeals) Durgupur acted unlawfully in Commissioner of Income Tax (Appeals) Durgupur acted unlawfully in Commissioner of Income Tax (Appeals) Durgupur acted unlawfully in not appreciating that the conditions precedent for issuance of notice not appreciating that the conditions precedent for issuance of notice not appreciating that the conditions precedent for issuance of notice u/s. 143(2) of the Income Tax Act; 1961 was not complied wi u/s. 143(2) of the Income Tax Act; 1961 was not complied with and/or th and/or fulfilled for the Ld Assistant Commissioner of Income Tax, Circle 1, fulfilled for the Ld Assistant Commissioner of Income Tax, Circle 1, fulfilled for the Ld Assistant Commissioner of Income Tax, Circle 1, Durgapur in passing the assessment order u/s. 143(3) of the Income Durgapur in passing the assessment order u/s. 143(3) of the Income Durgapur in passing the assessment order u/s. 143(3) of the Income Tax Act; 1961 and his purported findings 011 that behalf are Tax Act; 1961 and his purported findings 011 that behalf are Tax Act; 1961 and his purported findings 011 that behalf are absolutely is ab initio void ultra vires and null absolutely is ab initio void ultra vires and null in law"
3. That due to lack of legal opinion, the aforesaid ground was raised before the Ld.
3. That due to lack of legal opinion, the aforesaid ground was raised before the Ld.
3. That due to lack of legal opinion, the aforesaid ground was raised before the Ld. Commissioner of Income Tax (Appeals) Durgapur. In fact, the aforesaid Ground is Commissioner of Income Tax (Appeals) Durgapur. In fact, the aforesaid Ground is Commissioner of Income Tax (Appeals) Durgapur. In fact, the aforesaid Ground is purely legal in nature and goes to the root of the matter and as such. leave purely legal in nature and goes to the root of the matter and as such. leave to argue to argue the ground may please be granted in this regard. the ground may please be granted in this regard.
4. That your appellant has a strong prima facie case. The balance of convenience
4. That your appellant has a strong prima facie case. The balance of convenience
4. That your appellant has a strong prima facie case. The balance of convenience strongly favours your appellant in passing an order of admission of the additional strongly favours your appellant in passing an order of admission of the additional strongly favours your appellant in passing an order of admission of the additional ground. Your appellant will suff ground. Your appellant will suffer irreparable injury if the prayer is refused.”
5. After hearing rival contentions, After hearing rival contentions, I admit this additional ground as it is a legal admit this additional ground as it is a legal ground, raising a jurisdictional issue , raising a jurisdictional issue and does not require any investigation into and does not require any investigation into the facts. The ld. Counsel for the asse the facts. The ld. Counsel for the assessee submitted that as per Board Instruction ssee submitted that as per Board Instruction No. 1/2011 [F. No. 187/12/2010 No. 1/2011 [F. No. 187/12/2010-IT(A-I)], dt. 31/01/2011, the jurisdiction of the I)], dt. 31/01/2011, the jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, Circle assessee is with the Assistant Commissioner of Income Tax, Circle-1, Durgapur, as 1, Durgapur, as the assessee is a non-corporate assessee and the corporate assessee and the income returned is above income returned is above Rs.15,00,000/- and whereas, the statutory notice u/s 143(2) of the Act, was issued and whereas, the statutory notice u/s 143(2) of the Act, was issued and whereas, the statutory notice u/s 143(2) of the Act, was issued on 29/09/2016, by the Income Tax Officer, ward on 29/09/2016, by the Income Tax Officer, ward-1(1), Durgapur, who had no 1(1), Durgapur, who had no jurisdiction of the case. He submitted that the assessment order was pass jurisdiction of the case. He submitted that the assessment order was pass jurisdiction of the case. He submitted that the assessment order was passed by the ACIT, Circle-1(1), Durgapur, who had the jurisdiction over the assessee, but he had 1(1), Durgapur, who had the jurisdiction over the assessee, but he had 1(1), Durgapur, who had the jurisdiction over the assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed not issued the notice u/s 143(2) of the Act, within the statutory period prescribed not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the rits, he rebutted the findings of the lower authorities. The ld. Counsel the lower authorities. The ld. Counsel for the assessee relied on certain case for the assessee relied on certain case-law, which I would be referring to as would be referring to as and when necessary.
6. The ld. D/R, on the other hand, submitted that the The ld. D/R, on the other hand, submitted that the concurrent jurisdiction current jurisdiction vests with the ITO as well as the ACIT and hence the assessment cannot be ith the ITO as well as the ACIT and hence the assessment cannot be ith the ITO as well as the ACIT and hence the assessment cannot be Assessment Year: 2015-16 Soma Roy annulled simply because the statutory notice u/s 143(2) of the Act, was issued by annulled simply because the statutory notice u/s 143(2) of the Act, was issued by annulled simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and the assessment was completed by the ACIT. He further submitted that the ITO and the assessment was completed by the ACIT. He further submitted that the ITO and the assessment was completed by the ACIT. He further submitted that the assessee did not object to the issue of notice before the jurisdictional Assessing to the issue of notice before the jurisdictional Assessing to the issue of notice before the jurisdictional Assessing Officer and even otherwise, Section 292BB of the Act, comes into play and the Officer and even otherwise, Section 292BB of the Act, comes into play and the Officer and even otherwise, Section 292BB of the Act, comes into play and the assessment cannot be annulled. On merits, he relied on the orders of the lower assessment cannot be annulled. On merits, he relied on the orders of the lower assessment cannot be annulled. On merits, he relied on the orders of the lower authorities.
I have heard rival cont have heard rival contentions. On careful consideration of the facts and entions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the circumstances of the case, perusal of the papers on record, orders of the circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, authorities below as well as case law cited, I hold as follows:- 8. I find that there is no dispute in the fact that the notice u/ I find that there is no dispute in the fact that the notice u/s 143(2) of the Act s 143(2) of the Act dt. 29/09/2016 has been issued by the ITO, Wd dt. 29/09/2016 has been issued by the ITO, Wd-1(1), Durgapur. Later, the case 1(1), Durgapur. Later, the case was transferred to the jurisdiction of the ACIT on 11/08/2017 was transferred to the jurisdiction of the ACIT on 11/08/2017. Thereafter, no . Thereafter, no notice u/s 143(2) of the Act was issued by the Assessing Officer having jurisdic of the Act was issued by the Assessing Officer having jurisdic of the Act was issued by the Assessing Officer having jurisdiction of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, completed the assessment on 26/12/2017 i.e., ACIT, completed the assessment on 26/12/2017 i.e., ACIT, Circle-1(1), Durgapur. Under these circumstances, the question is whether the 1(1), Durgapur. Under these circumstances, the question is whether the 1(1), Durgapur. Under these circumstances, the question is whether the assessment is bad in law for want of issual of notice u/s 143(2) of the Act. assessment is bad in law for want of issual of notice u/s 143(2) of the Act. assessment is bad in law for want of issual of notice u/s 143(2) of the Act.
9. This Bench of the Tribunal in the case of he Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT in Shri Sukumar Ch. Sahoo vs. ACIT in order dt. 27.09.2017, ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows:- “5. From a perusal of the above Instruction of the CBDT it is evident that the “5. From a perusal of the above Instruction of the CBDT it is evident that the “5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non corporate returns' filed where income declared is only upto Rs.15 lacs ; and the corporate returns' filed where income declared is only upto Rs.15 lacs ; and the corporate returns' filed where income declared is only upto Rs.15 lacs ; and the ITO doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. the jurisdiction to conduct assessment if it is above Rs 15 lakhs. the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above Rs. 15 lacs income declared by a non Above Rs. 15 lacs income declared by a non- corporate person i.e. like assessee, corporate person i.e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corp assessee an individual (non corporate person) who undisputedly declared orate person) who undisputedly declared income of Rs.50,28,040/ income of Rs.50,28,040/- in his return of income cannot be assessed by the ITO in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it as per the CBDT circular (supra). From a perusal of the assessment order, it as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was reveals that the statutory notice u/s. 143(2) of the Act was issued by the then issued by the then ITO, Ward-1, Haldia on 06.09.2013 and the same was served on the assessee on 1, Haldia on 06.09.2013 and the same was served on the assessee on 1, Haldia on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. The AO noted that since the returned income is 19.09.2013 as noted by the AO. The AO noted that since the returned income is 19.09.2013 as noted by the AO. The AO noted that since the returned income is more than Rs. 15 lacs the case was transferred from the ITO, Ward more than Rs. 15 lacs the case was transferred from the ITO, Ward-1, Haldia to 1, Haldia to ACIT, Circle-27 and the same was received by the office of the ACIT, Circle 27 and the same was received by the office of the ACIT, Circle 27 and the same was received by the office of the ACIT, Circle-27, Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: on the same day. From the aforesaid facts the following facts emerged: on the same day. From the aforesaid facts the following facts emerged:
Assessment Year: 2015-16 Soma Roy i) The assessee had filed r i) The assessee had filed return of income declaring Rs.50,28,040/- -. The ITO issued notice under section 143(2) section 143(2) of the Act on 06.09.2013. ii) The ITO, Ward-1, Haldia taking note that the income returned was above Rs. 1, Haldia taking note that the income returned was above Rs. 1, Haldia taking note that the income returned was above Rs. 15 lacs transferred the case to ACIT, Circle erred the case to ACIT, Circle-27, Haldia on 24.09.2014. iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia.
We note that the CBDT Instruction is dated 31.01.2011 and the assessee has 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on filed the return of income on 29.03.2013 declaring total income of 29.03.2013 declaring total income of Rs.50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an . As per the CBDT Instruction the monetary limits in respect to an . As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate assessee who is an individual which falls under the category of 'non corporate assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto Rs.15 returns' the ITO's increased monetary limit was upto Rs.15 lacs; and if the lacs; and if the returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above Rs.15 lakh, then the jurisdiction to income by assessee an individual is above Rs.15 lakh, then the jurisdiction to income by assessee an individual is above Rs.15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice had the jurisdiction to assess the assessee. It is settled law that serving of notice had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he did not have the pecuniary jurisdiction to assume 1, Haldia when he did not have the pecuniary jurisdiction to assume 1, Haldia when he did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not jurisdiction and issue notice. Admittedly, when the ITO realized that he did not jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the had the pecuniary jurisdiction to issue notice he duly transferred the file to the had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 2014 when the ACIT issued statutory notice Haldia on 24.09. 2014 when the ACIT issued statutory notice Haldia on 24.09. 2014 when the ACIT issued statutory notice which was beyond the time limit prescribed for issuance of notice u/s. 143(2) of which was beyond the time limit prescribed for issuance of notice u/s. 143(2) of which was beyond the time limit prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by assuming the jurisdiction after the time the Act. We note that the ACIT by assuming the jurisdiction after the time the Act. We note that the ACIT by assuming the jurisdiction after the time prescribed for issuance of notice u/s. 1 prescribed for issuance of notice u/s. 143(2) of the Act notice became qoarum 43(2) of the Act notice became qoarum non judice after the limitation prescribed by the statute was crossed by him. non judice after the limitation prescribed by the statute was crossed by him. non judice after the limitation prescribed by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, Circle Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the 27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) of limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, the Act has set in, goes to the root of the case and makes the notice bad in the eyes of law and goes to the root of the case and makes the notice bad in the eyes of law and goes to the root of the case and makes the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the consequential assessment order passed u/s. 143(3) of the Act is not valid in the consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law. Therefore, t eyes of law and, therefore, is null and void in the eyes of law. Therefore, t eyes of law and, therefore, is null and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment issue raised by the assessee is allowed. Since we have quashed the assessment issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised
and the appeal of assessee is allowed on the legal issue, the other grounds raised and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. by the assessee need not to be adjudicated because it is only academic. by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. additional ground raised by the assessee is allowed.
7. In the result, appeal of assessee is allowed.
7. In the result, appeal of assessee is allowed. 9.1. This Bench of the Tribunal in the case of This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO Krishnendu Chowdhury vs. ITO reported in [2017] 78 taxmann.com 89 (Kolkata reported in [2017] 78 taxmann.com 89 (Kolkata-Trib.) held as follows:- “Return of income of assessee was Rs. 12 lakhs Return of income of assessee was Rs. 12 lakhs - As per CBDT instruction, As per CBDT instruction, jurisdiction for scrutiny assessment vested in Income jurisdiction for scrutiny assessment vested in Income-tax Officer and notice tax Officer and notice Assessment Year: 2015-16 Soma Roy under section 143(2) must be issued by Income under section 143(2) must be issued by Income-tax Officer, Ward- -I, Haldia and none other - But, notice was But, notice was issued by Asstt. Commissioner, Circle Haldia much issued by Asstt. Commissioner, Circle Haldia much after CBDT's instruction and knowing fully well that he had no jurisdiction after CBDT's instruction and knowing fully well that he had no jurisdiction after CBDT's instruction and knowing fully well that he had no jurisdiction over assessee - Whether, therefore, notice issued by Asstt. Commissioner was Whether, therefore, notice issued by Asstt. Commissioner was Whether, therefore, notice issued by Asstt. Commissioner was invalid and consequently assessment framed by Income invalid and consequently assessment framed by Income-tax Officers becomes tax Officers becomes void since issue of notice under section 143(2) was not done by Income void since issue of notice under section 143(2) was not done by Income void since issue of notice under section 143(2) was not done by Income-tax Officers as specified in CBDT instruction No. 1/2011.” Officers as specified in CBDT instruction No. 1/2011.”
9.2. The Hon’ble High Court of Calcutta in the case of The Hon’ble High Court of Calcutta in the case of West Bengal State West Bengal State Electricity Board vs. Deputy Commissioner of Income Tax, Special Range Electricity Board vs. Deputy Commissioner of Income Tax, Special Range Electricity Board vs. Deputy Commissioner of Income Tax, Special Range – I, reported in [2005] 278 ITR 218 (Cal.) has held as follows: has held as follows:- “Section 254 of the Income Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of Powers of - Assessment years 1983-84 to 1987- -88 - Whether a question of law arising out of facts found by Whether a question of law arising out of facts found by authorities and which went to root of jurisdiction can be raised for first time before authorities and which went to root of jurisdiction can be raised for first time before authorities and which went to root of jurisdiction can be raised for first time before Tribunal - Held, yesWhether jurisdiction of Assessing Authority is not dependent on Held, yesWhether jurisdiction of Assessing Authority is not dependent on Held, yesWhether jurisdiction of Assessing Authority is not dependent on date of accrual of cause of action but on date when it is initiated f cause of action but on date when it is initiated - Held, yes Held, yes - Whether once a particular jurisdiction is created, same must be prospective and cannot be once a particular jurisdiction is created, same must be prospective and cannot be once a particular jurisdiction is created, same must be prospective and cannot be retrospective and it has to be interpreted having regard to manner in which it has retrospective and it has to be interpreted having regard to manner in which it has retrospective and it has to be interpreted having regard to manner in which it has created - Held, yes – Assessee” been sought to be created 9.3. The Hon’ble Supreme Court in the case of The Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal CIT vs. Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), [2019] 108 taxmann.com 183 (SC), held as follows:- “7. A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly proceedings it shall be deemed that any notice which is required to be served upon was duly proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the no served and the assessee would be precluded from taking any objections that the no served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section Respondent had participated in the proceedings, the provisions of Section 292BB would be a 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident submitted that the notice under Section 143(2) of the Act was never issued which was evident submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as wel from the orders passed on record as well as the stand taken by the Appellant in the memo of l as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. prerequisite, in the absence of such notice, the entire proceedings would be invalid. prerequisite, in the absence of such notice, the entire proceedings would be invalid.
The law on the point as regards applicability of the requirement of notice under Section t as regards applicability of the requirement of notice under Section t as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. that however needs to be considered is the impact of Section 292BB of the Act. that however needs to be considered is the impact of Section 292BB of the Act.
According to Section 292BB of the Act, if the assessee had participated in the proceedings, g to Section 292BB of the Act, if the assessee had participated in the proceedings, g to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as by way of legal fiction, notice would be deemed to be valid even if there be infractions as by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notic detailed in said Section. The scope of the provision is to make service of notice having certain e having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. infirmities to be proper and valid if there was requisite participation on part of the assessee. infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For It is, however, to be noted that the Section does not save complete absence of notice. For It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanat Section 292BB to apply, the notice must have emanated from the department. It is only the ed from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not infirmities in the manner of service of notice that the Section seeks to cure. The Section is not infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.” intended to cure complete absence of notice itself.
Assessment Year: 2015-16 Soma Roy 10. Respectfully following the propositions of law laid down in al Respectfully following the propositions of law laid down in al Respectfully following the propositions of law laid down in all these case- law and applying the same to the facts of the case, we hold that the assessment law and applying the same to the facts of the case, we hold that the assessment law and applying the same to the facts of the case, we hold that the assessment order is bad in law for the reason that the Assessing Officer order is bad in law for the reason that the Assessing Officer having having jurisdiction over the assessee, has not issued a notice u/s 143(2) of the Act as required by t , has not issued a notice u/s 143(2) of the Act as required by t , has not issued a notice u/s 143(2) of the Act as required by the statute. Notice issue by the officer having no jurisdiction of the assessee is null and statute. Notice issue by the officer having no jurisdiction of the assessee is null and statute. Notice issue by the officer having no jurisdiction of the assessee is null and void. When a notice is issued by an officer having no jurisdiction, Section 292BB of When a notice is issued by an officer having no jurisdiction, Section 292BB of When a notice is issued by an officer having no jurisdiction, Section 292BB of the Act, does not comes into play. Coming to the argument of the ld. D/R that the Act, does not comes into play. Coming to the argument of the ld. D/R that the Act, does not comes into play. Coming to the argument of the ld. D/R that objection u/s 124(3) of the Act has to be taken by the assessee on rectifying notice jection u/s 124(3) of the Act has to be taken by the assessee on rectifying notice jection u/s 124(3) of the Act has to be taken by the assessee on rectifying notice u/s 143(2) of the Act from a non u/s 143(2) of the Act from a non-jurisdictional assessing officer, i am of the view jurisdictional assessing officer, i am of the view that I need not adjudicate this issue, as I have held that non that I need not adjudicate this issue, as I have held that non-issual of statutory issual of statutory notice/s 143(2) of the Act by the jurisdictional Assessing Officer makes the /s 143(2) of the Act by the jurisdictional Assessing Officer makes the /s 143(2) of the Act by the jurisdictional Assessing Officer makes the assessment bad in law. Under these circumstances, we allow this appeal of the Under these circumstances, we allow this appeal of the Under these circumstances, we allow this appeal of the assessee.
In the result, appeal of the assessee is allowed. In the result, appeal of the assessee is allowed.
Kolkata, the Kolkata, the 8th day of January, 2020. Sd/- [J. Sudhakar Reddy] Accountant Member Dated : 08.01.2020 {SC SPS} Assessment Year: 2015-16 Soma Roy Copy of the order forwarded to: opy of the order forwarded to:
1. 1. Soma Roy C/o. S.N. Ghosh & Associates, Advocates Associates, Advocates “Seben Brothers’ Lodge” P.O. Buroshibtala P.S. Chinsurah Dist. Hooghly West Bengal – 712 105 2. Asstt. Commissioner of Income Tax, Circle Asstt. Commissioner of Income Tax, Circle-1, Durgapur 3.
4. CIT(A)- 5. CIT- , Sent through e-mail.
6. CIT(DR), Kolkata Benches, Kolkata. . CIT(DR), Kolkata Benches, Kolkata.