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2008 (6) TMI 236 - ITAT DELHI-FAssumption of jurisdiction u/s 147 - notice u/s 148 issued - reassessment proceedings initiated on wrong notion and belief which are contrary to the facts on record - HELD THAT:- It is clear that the assessee was assessed to income-tax and as on 30th March, 2005, the ITO, did not have any jurisdiction over the assessee. Therefore, the notice issued u/s. 148 of the Act by the ITO, is without jurisdiction. Further, u/s. 149 of the Act, no notice u/s. 148 shall be issued for the relevant assessment year if four years, but not more than six years have elapsed from the end of relevant assessment year unless income chargeable to tax which has escaped assessment amounts to or is likely to amount to Rs. 1,00,000 or more for that year. Therefore, notice u/s. 148 could be issued for AY 1998-99 upto 31st March, 2005. The present AO when received the relevant file from ITO, containing material for proceedings initiated u/s. 147 in December, 2005, the time of six years had already elapsed. Therefore, he could not have issued further notice u/s. 148 of the Act. Accordingly, the assessment framed on the basis of notice issued without jurisdiction is bad in law and does not have legs to stand. The ld DR also contended that the defect in the notice can be ignored u/s. 292B of the Act. Sec. 292B of the IT Act, 1961 says that no return of income, assessment, notice, summons or other proceedings, etc. shall be invalid, or shall be deemed to be invalid merely by reason of any mistake or defect or omission in such return of income, assessment, notice, summons or other proceedings, if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or in according to the intent and purpose of this Act. The notice issued by the ITO is not in substance and effect in conformity with the provisions of s. 120 r/w s. 147 of the Act. The notice was issued without jurisdiction. Therefore, the provisions of s. 292B will not be of any help to the Revenue. The provisions of s. 292B could have been invoked if the ITO, was having jurisdiction over the assessee and some mistake was committed in the notice issued by him u/s. 148. Therefore, we do not find any force in the argument of the ld DR. Therefore, the notice issued by the AO, was without jurisdiction and consequentially the assessment made is bad in law and deserves to be quashed. We order accordingly. Since we have quashed the assessment on jurisdiction, we do not feel it necessary to decide the other grounds of appeal on merits. Now, coming to the Revenue's appeal, which relates to deleting the addition made on account of capital gains arising out of acquisition of land by the Government, since we have quashed the assessment on the ground of jurisdiction, the appeal filed by the Revenue becomes infructuous and dismissed as such. In the result, the appeal filed by the assessee is allowed and the Revenue is dismissed.
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