M/S. BARIPADA URBAN COOPERATIVE BANK LTD.,BARIPADA vs. ACIT, BALASORE CIRCLE, BALASORE., BALASORE

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No. 532/CTK/2013 Assessment Year : 2009-2010 Baripada Urban Co-operative Vs. ACIT, Balasore Circle, Bank Ltd., At: Roxy Road, Balasore. Baripada PAN/GIR No. AABAT 2673 C (Appellant) .. ( Respondent)

Assessee by : Shri B.Panda/B.R.Panda, ARs Revenue by : Shri Kunal Singh, CIT DR

Date of Hearing : 05/07/ 2017 Date of Pronouncement : 11 /07/ 2017

O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against order of CIT(A),

Cuttack, dated 20.11.2012, for the assessment year2009-2010.

has filed condonation petition dated 21.11.2013 for condoning the delay

in filing the appeal. After going through the condonation petition, we find

that the assessee had reasonable cause for not filing the appeal within the

stipulated time. Ld D.R. did not have any objection for condoning the delay.

We, therefore, condone the delay of 179 days in filing the appeal before

the Tribunal and admit the appeal for hearing.

”1. For that notice u/s.143(2), neither was issued nor served on the appellant which is required in the statute and in absence of such notice, assessment made and orders passed is to be quashed and also to be annulled in toto. 2. For that the objections made as well as a failure of natural justice vis-à-vis unlawfully proceeded to complete the assessment caused illegality and irregularity. Thus, the order passed is to be quashed and vacated and accordingly the order of assessment is illegal, unlawful and also electric. 3. For that the appellant having shown the loss of Rs.1,34,27,156/- in the relevant year, then the prior period losses shown in the respective balance sheets, profit and loss account should have been duly considered and the total loss accrued in the facts of this case for the assessment year 2009-2010 should have been given credit to Rs.4,24,91,065.06. Thus, the order of assessment made in exparte manner, without examining details, hence the order passed ignoring the objections and other grounds will be urged at the time of argument.” 4. Ld D.R. had no objection to the admission of above additional grounds

of appeal taken by the assessee. Hence, the same were admitted and the

parties were allowed to make their submissions thereon.

authorities and materials available on record. In the instant case, the

assessee filed its return of income electronically on 25.3.2010 disclosing

loss of Rs.1,34,27,156/-. Assessment in pursuance to this return was made

by the ACIT, Balasore Circle, Balasore vide impugned order dated

11.11.2011 passed u/s.143(3) of the Act. The contention of the assessee

is that as no valid notice u/s.143(2) of the Act was issued by the

Jurisdictional Assessing Officer within the time limit prescribed under the

Act and, therefore, the impugned order of assessment is bad in law and

liable to be quashed.

u/s.143(2) was issued in the instant case on 26.8.2010 by the ITO, Ward-

1, Baripada, which was within the limit prescribed u/s.143(2) of the Act

and, therefore, the impugned order of assessment passed by the ACIT,

Balasore Circle, Balasore is valid.

dated 26.8.2010 issued by the ITO, Ward-1, Baripada is valid or not.

ITO Ward-1, Baripada dated 26.8.2010 i.e. on the same day on which

notice u/s.143(2) was issued, wherein, ITO, Baripada had admitted that he

had no jurisdiction over the case of the assessee and, therefore, he is

sending copy of notice to ACIT, Balasore Circle, Balasore.

notice issued by non-jurisdictional Assessing Officer u/s.143(2) cannot be

held as a valid notice.

Benches of the Tribunal in the case of ACIT vs Treadstone International in

ITA No.663/Lkw/2013 and ITA No.21/Lkw/2014 for the assessment year

2008-09 order dated 30.10.2015. In this case, the Tribunal has held as

under:

“Having carefully examined the order of the lower authorities, in the light of rival submission, we find that the assessee has contended that the assessment was not framed by the competent Officer as he has not issued a notice u/s 143(2) of the Act. From the careful perusal of the assessment order, we find that during the course of assessment proceeding, jurisdiction was changed from one Officer to other Officer. Initially, the notice u/s 143(2) was issued within the prescribed period by Assessing Officer having jurisdiction over the assessee. Therefore, it cannot be said that the notice u/s 143(2) was not issued upon the assessee within the prescribed period. It is also evidence from the assessment order that during the course of assessment proceeding, jurisdiction was transferred from one officer to other officer and the subsequent officer has completed the assessment. Under these circumstances, we find no merit in the contention of the assessee that every time new Officer should issue a notice u/s 143(2) of the Act. Whenever jurisdiction is transferred from one Officer to other Officer the subsequent officer shall continue with the proceeding from the stage left by the earlier officer. There is no requirement of law to issue a notice u/s 143(2) every time by the new Officer, we therefore, find no merit in the contention of the assessee and we accordingly reject the same.”

We find that Kolkata Benches of the Tribunal in the case of Nopany 11.

and Sons, Kolkata in ITA Nos.1621 and 1301/Kol/2011 for assessment year

2007-08 order dated 220.7.2016 held as under:

“8. We have heard the rival parties and perused the materials available on record. From the foregoing discussion, we find that assessee has been filing its income tax return with DCIT Circle-XI in the earlier years including for the year under consideration. Thereafter the case was transferred to ITO Ward- 56(4) by the order of Commissioner of Income Tax passed u/s 127 of the Act. However for the year under consideration a notice under section 143(2) of the Act was issued by the ITO of ward 3(1) for scrutiny assessment. The assessee challenged the validity of the notice on the ground that the jurisdiction on the assessee vests with the ITO of ward 56(4). On bringing this anomaly to the notice of the income tax authorities, the lower authorities rejected the same and framed the assessment u/s 143(3) of the Act by observing that the e-return was filed and the case was selected for selected on the basis of CASS system. Now the question before us arises so as to whether the non-issue of notice under section 143(2) of the Act by the competent authority shall make the assessment invalid. At this juncture, we want to produce the relevant portion 143(2) of the Act.

"[Assessment 143.[(1)..... [(2).Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claimed of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: [Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003;] (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not under stated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the as may rely in support of the return:

[Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.]] ITA No. 1621 & 1301/Kol/2011 A.Y 2007-08 ITO Wd-56(4) Kol. v. M/s Nopany & Sons Page 18 From a plain reading, we find that it is mandatory for the Assessing Officer having jurisdiction over the assessee to serve the notice on assessee. So from the above provision, we find that it is mandatory for Competent Authority before making the scrutiny assessment to issue notice u/s. 143(2) of the Act. In the instant case, we find that notice has not been issued by the Competent Authority as required in the Statute. In this connection, we are putting our reliance in the judgment of Hon'ble High Court of Delhi in the case of Principal Commissioner of Income Tax vs. Silver Line (2016) 283 CTR 148 (Del), wherein the extract portion reproduced below:-

"With the legal position being abundantly clear that a reassessment order cannot be passed without compliance with the mandatory requirement of notice being issued by the AO to the Assessee under Section 143(2) of the Act, the ITAT was in the present case right in concluding that the reassessment orders in question were legally unsustainable. In view of the settled legal position on all the issues raised by the Revenue in these appeals, HIGH Court was of the view that no substantial question of law arises for determination. Revenue's Appeal was thus dismissed. A reassessment order cannot be passed without compliance with mandatory requirement of notice being issued by AO to assessee u/s 143(2).

In support of the above, reliance is placed on the judgments of Hon'ble Supreme Court in the case of ACIT v. Hotel Blue Moon (2010) 321 ITR 362 (SC) in the said case, the Hon'ble Supreme Court observed as under (page

369) "Omission on the part of the assessing authority to issue notice under section 143(2)cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with."

Further the Hon'ble Allahabad High Court in the case of CIT And Another vs. Mukesh Kumar Agrawal (2012) 345 ITR 29 (All), in this case, the Hon'ble Allahabad High Court held as under :

"The Tribunal returned the findings that the assessing authority did not have jurisdiction to proceed further and make assessment since notice under section 143(2) of the Income-tax Act, 1961, was admittedly not issued. On appeal contending that the Commissioner (Appeals) and the ITA No. 1621 & 1301/Kol/2011 A.Y 2007-08 ITO Wd-56(4) Kol. v. M/s Nopany & Sons Page 19 Tribunal decided the issue in favour of the assessee relying upon a judgment of the Hon'ble Supreme Court but that judgment was not applicable to the facts of the present case as the judgment had not taken into consideration the provisions of section 292BB of the Act: Held, dismissing the appeal, that the very foundation of the jurisdiction of the Assessing Officer was on the issuance of the notice under section 143(2) of the Act."

Again Hon'ble Allahabad High Court in the case of CIT vs. Salarpur Cold Storage Private Limited (2015) 228 taxmann 48 (Mag.) (All), the Hon'ble Allahabad High Court has held that:-

"Where there is a failure apparent to issue a notice under section 143(2) within prescribed period, it cannot be cured by taking recourse to section 292BB of the Income Tax Act, 1961."

Further again Hon'ble Kerala High Court in the case of Romi vs. CIT (2014) 363 ITR 311 (Ker), the Hon'ble Kerala High Court has held that "Where no notice as issued under section 143(2) to assessee, assessment made under section 143(3) was to be set aside."

Respectfully following the aforesaid precedents and various case laws, we find that statutory notice as required to Sec. 143(2) of the Act was to be issued by the Competent Authority and within the time. The Tax Administrators cannot confer jurisdiction on an officer which the statute itself does not confer. As per the provisions of the statute the power was vested with the ward of DC Circle XI and later transferred to Ward 56(4). The AO of Ward 3(1) was not empowered to issue the notice under section 143(2) of the Act. However the notice u/s 143(2) was issued by the AO of Ward 3(1). The AO of Ward 3(1) was having no jurisdiction over the assessee. We also find that the ld. DR also failed to bring anything contrary to the arguments advanced by the ld. AR with regard to the jurisdiction of the AO for the issue of notice. The provisions of section 292BB of the Act shall also not be applicable in the instant case as the assessee objected on the validity of the notice issued under section 143(2) of the Act. The AO has been defined u/s 2(7A) of the Act who is having ITA No. 1621 & 1301/Kol/2011 A.Y 2007-08 ITO Wd-56(4) Kol. v. M/s Nopany & Sons Page

20 jurisdiction over the assessee by virtue of the provisions of section 120 of the Act. In the instant case, the ld. CIT(A) has clearly observed the fact that at the time of return filing, the DCIT Central Circle XI was the jurisdictional Assessing Officer and on a later date the case was transferred to Ward 56(4) in pursuance of the order passed under section 127 of the Act. The findings of the ld. CIT(A) is reproduced below:-

"3.3. The submission of the Ld. AR of the appellant have been considered in the light of materials brought on record and the case laws referred to. It appears form the record that the appellant firm had filed its return belatedly u/s. 139(4) of the Act, on 17/01/2009. The return was filed electronically with digital signature. At the time of filing return, the DCIT, Central Circle- XI, Kolkata was the jurisdictional Assessing Officer. Subsequently, the Ld. CIT, Crentral-1, Kolkata passed an order u/s. 127 of the Act on 06/04/2009., transferring the jurisdiction of the appellant to ITO, Ward- 54(4), Kolkata."

From the above facts, it is clear that the jurisdiction was vested with the AO of DCIT Circle XI and thereafter it was transferred to Ward 56(4) in pursuance of the order passed under section 127 of the Act. In the instant case the assessment notice has been issued by the ITO Ward 3(1) having no jurisdiction on the assessee. The Income Tax Authorities can exercise their powers within the provisions of the Act. The Income Tax Authorities cannot confer jurisdiction on an officer which the statute itself does not confer. Therefore, in view of above, we have no hesitation to reverse the orders of Authorities Below on this legal point. As the legal issue has been decided in favour of assessee, we are not adjudicating other grounds of appeal of the assessee. AO is directed accordingly.”

issued by the ITO, Ward-1, Baripada dated 26.8.2010, who is not the

Jurisdictional Assessing Officer of the assessee cannot be held as a valid

notice. Consequently, we find that in absence of any valid notice

u/s.143(2) of the Act having been issued in the instant case, the impugned

order passed u/s.143(3) of the Act cannot be sustained. Accordingly, we

hereby set aside the impugned order passed u/s.143(3) of the Act by the

ACIT, Balasore Circle, Balasore and allow the additional ground of appeal

of the assessee.

has become infructuous and, accordingly, same are not adjudicated upon

separately.

Order pronounced in the open court on 11 /07/2017 in the presence of parties. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 11 /07/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The appellant: Baripada Urban Co-operative Bank Ltd., At: Roxy Road, Baripada 2. The Respondent. ACIT, Balasore Circle, Balasore. 3. The CIT(A) Cuttack 4. Pr.CIT- Cuttack 5. DR, ITAT, Cuttack BY ORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack