TMI Blog2013 (8) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... t decided by the A.O - Mandatory for the A.O. to decide objections and that the exercise of discretion on the objections would in any case not validate the notice under Section 147/148 of the Income Tax Act – Decided against the Revenue. - Income Tax Appeal Defective No. - 90 of 2012, Income Tax Appeal Defective No. - 84 of 2012, Income Tax Appeal Defective No. - 85 of 2012, Income Tax Appeal Defective No. - 86 of 2012, Income Tax Appeal Defective No. - 87 of 2012, Income Tax Appeal D - - - Dated:- 5-8-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant :- Dhananjay Awasthi ORDER We have heard Shri Dhananjay Awasthi, learned counsel for the income tax department. The income tax appeal nos.84 of 2012, 85 of 2012, 86 of 2012, 87 of 2012, 88 of 2012, 89 of 2012 and 90 of 2012 are reported to be defective for want of certified copy of the order. The certified copy of the common order has been filed in the connected income tax appeal. The application for exemption is allowed in all the cases. The office will give regular number to the defective income tax appeal nos.84 of 2012, 85 of 2012, 86 of 2012, 87 of 2012, 88 of 2012, 89 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure in property and had estimated the income from salary. The assessee filed appeal against the order and also filed writ petition in the Lucknow Bench of Allahabad High Court. Since there was no interim order from the High Court, the CIT (A) by his order dated 22.1.2009 dismissed the appeal both on the ground of non-prosecution as well as on merits. In the second appeal filed by the assessee before the ITAT, New Delhi the assessee again pleaded that issue of jurisdiction was still subjudice before the High Court and therefore ITAT, New Delhi by its order dated 9th October, 2009 restored the appeal to the file of CIT (A) for fresh adjudication after decision of the High Court, Allahabad with directions that he will inform the office of CIT (A) in regard to decision of the High Court at Allahabad, and shall cooperate in the appellate proceedings and in the event of non-cooperation, the CIT (A) will draw adverse inference against the appellant. While appeals were pending, the High Court decided the writ petition with directions as follows:- "In view of above, the writ petition is disposed of finally directing the CIT (Appeals) to consider and decide petitioner's appeal on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitely with A.C.I.T., Circle, Noida which is clear from the PAN allotted to the appellant. Further, the order of the D.G.I.T. (Inv.), Lucknow is clear on this aspect wherein it has been held that the appellant's territorial jurisdiction is also with the A.O. under the Commissioner of Income-tax, Ghaziabad. The appellant in all his legal documents filed before the various authorities including Hon'ble Courts have shown the addresses at Noida/Ghaziabad. Further, more all the bank accounts were maintained at-Noida only. It is important to note that the appellant although has challenged the issue of jurisdiction but neither he has come out why he was using the address of Delhi as referred above in his returns of income nor he has been able to explain with details/ evidences as to how the impugned property at Delhi was used by him for the business purposes so as to substantiate the claim of filing of return in Delhi. All the above facts reinforce the conclusion that the appellant should have filed his returns of income in Noida. In other words, the correct territorial/ legal jurisdiction of the appellant was in Noida, department was very much within its right to treat the appellant's ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on 27.3.2003 and in the case of Smt. Urmila Gupta also notice u/s 142 (1) for A.Y. 2002-03 were issued on 27.3.2003 and in the case of Smt. Urmila Gupta also notice u/s 142 (1) for the A.Y. 2002-03 was issued on 27.03.2003. From the perusal of the record it is seen that these notices were served by affixture and there was no regular service on notices. However prior to this, as reported by ACIT Noida, Sh. Deepak Gupta and Smt. Urmila Gupta have been filing returns regularly in the respective wards at Delhi. The information in this regard was communicated to ACIT, Noida and the same is as follow: Name of Assessee A.Y. Date of filing the return Ward/Circle Sh. Deepak Gupta 00-01 26.09.2000 Ward-33 (2), Delhi -Do- 01-02 20.09.2001 -Do- -Do- 02-03 10.09.2002 -Do- Smt. Urmila Gupta 00-01 29.09.2000 Ward-27(4), Delhi -Do- 01-02 26.09.2001 -Do- -Do- 02-03 08.10.2002 -Do- From the above facts it is obvious that Sh. Deepak Gupta Smt. Urmila Gupta had voluntarily submitted them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng within the jurisdiction of CIT, Ghaziabad. The ITAT concluded as follows:- "6.1 Adverting tot he first issue, from the entire record and particularly the letter from the office of the CCIT, Meerut addressed by Addl. Commissioner, Head Quarters, Meerut dated 3.3.2004, it clearly emerges that till 3.3.2004 the assessee and his wife have been filing their returns regularly with AO, Delhi and were assessed by ITO Delhi. There is no accusition in this letter that the Delhi and jurisdiction was based on misrepresentation of facts. This letter further clarifies that the assessment of jurisdiction assumed by ACIT Noida was not on good grounds and he should not have issued the notice without the prescribed procedure of inter charge change of jurisdiction between two regions of income tax department with the endorsement of both the commissioner. This letter clinches the issue and belies the observations of CIT (A) that Delhi and Noida are practically same locality and that the assessee wrongly got himself assessed at Delhi. With this authoritative communication of CIT, Delhi on the record issued to all the officers, we are unable to sustain any finding of the AO or Ld. CIT (A)'s there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as ITA No.1562/Del/11-Smt. Alka Tiwari giving rise to Income Tax Appeal (D) No.86 of 2012, the ITAT observed that the case of Smt. Alka Tiwari is similar to that of Deepak Gupta except for some details. In her case ACIT Noida's request letter for transfer of jurisdiction is dated 22.3.2004 and the transfer order of jurisdiction under Section 127 (2) was passed within three days i.e. 26.3.2004. There is small variation in the date of notice under Section 148. Further facts and circumstances are the same and that notice under Section 148 also could not have been given prior to transfer of jurisdiction. Shri Dhananjay Awasthi appearing for the department submits that in the present case there is valid transfer of jurisdiction by the Commissioner of Income Tax and that the orders under Section 127 can be passed after giving reasonable opportunity of being heard in the matter, wherever it is possible to do so after recording reasons for transfer of case. He submits that since the orders under Section 127 (2) were not challenged by the assessee and that the order has not been set aside, the ITAT could not have interfered in the matter. He has relied upon the words 'wherever it is ..... 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