TMI Blog2019 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee by: Shri Manish Agarwal (CA) Revenue by: Smt. Neena Jeph (JCIT) ORDER PER VIJAY PAL RAO, JM : This appeal by the assessee is directed against the order dated 26.10.2016 of ld. CIT (A)-3, Jaipur for the assessment year 2006-07. The assessee has raised the following grounds :- 1. On the facts and in the circumstances of the case, the ld. CIT (A) has grossly erred in upholding the impugned reassessment order of ld. AO by ignoring the fact that the said order has been passed without jurisdiction and therefore is prima facie bad in law and deserves to be quashed. 1.1. That, the ld. CIT (A) has further erred in failing to appreciate the fact that the jurisdiction over the case of assessee lies with Income Tax Officer, Ward-1, Hanumangarh, and not with the Income Tax Officer, Ward 7(2), who has passed the impugned reassessment order. Thus, the order of ld. AO deserves to be quashed. 1.2. That, the ld. CIT (A) has further erred in rejecting the aforesaid objection of assessee merely on the ground that this ground was not raised before AO and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1. That, the ld. CIT (A) has further erred in ignoring the evidences and explanations furnished by the assessee in support of the source of deposits made by assessee. Thus, the addition of ₹ 22,50,161/- deserves to be deleted. 5. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal. Ground Nos. 1 to 1.2 are regarding validity of reassessment order passed by the AO for want of jurisdiction. 2. The assessee is an Individual and derives income from Salary and Agriculture. The assessee filed his original return of income under section 139 on 14.08.2007 with ITO Hanumangarh declaring total income at ₹ 1,16,960/-. The return of income was processed under section 143(1) on 20th March, 2008 by the ITO Ward-1, Hanumangarh. Subsequently, the ITO Ward 7(2), Jaipur issued a notice under section 148 on 26th March, 2013 to assess the long term capital gain arising from the sale of land. The reassessment proceedings were completed under section 144 read with section 147 of the IT Act at a total income of ₹ 44,75,323/- on 10th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that no person shall be entitled to call in question the jurisdiction of an Assessing Officer after expiry of one month from the date of notice under section 142(1) of the IT Act or under section 143(2) of the Act or after the completion of the assessment whichever is earlier. The ld. D/R has further contended that the assessee has not disputed the territorial jurisdiction of the AO Ward 7(2), Jaipur who has initiated the proceedings and completed the reassessment under section 147 of the IT Act. She has relied upon the findings of the ld. CIT (A) on this issue. 5. The rival contentions as well as the relevant material on record have been considered. There is no dispute as regards the original return of income filed by the assessee on 14.08.2007 with ITO Ward-1, Hanumangarh. The copy of the said return is available at pages 37 38 of the paper book. The said return was processed under section 143(1) on 20th March, 2008 as per the Acknowledgement at page 36 of the paper book. It is manifest from the intimation issued under section 143(1) of the IT Act by the ITO Ward-1, Hanumangrh that the processing is done in the computer system of the department. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the mere appearance before the AO in response to the notice under section 148 or 142(1) would not amount to bestowing the jurisdiction upon the AO who was otherwise not having the jurisdiction over the assessee. The Hon ble Bombay High Court in case of CIT vs. Income Tax Settlement Commission Others (supra) has held in para 11 and 12 as under :- 11. We have considered the rival submissions. The applicants have strongly contended before us that in view of the petitioner-Revenue having participated in the proceedings before the Commission post the impugned order dated April 8, 2013, it amounts to waiver of her rights to the question the jurisdiction of the Commission. We find, in view of section 245C(1) of the Act, the Commission can exercise jurisdiction under Chapter XIX-A of the Act only when there has been a true and full disclosure of income and also the manner in which the income has been derived, by the applicants. This is a condition precedent for the purpose of an applicant invoking the jurisdiction of the Commission and also for the Commission to act further on the application for settlement. It is the case of the petitioner that the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation proceeding for assessment before the Assessing Officer and authorities under the Act would have been without the evidence contained in the confidential folders of the applicants. The conduct of the petitioner-Revenue is unfair and the delay in filing the petition was only to obtain information which it would not have been entitled to had it not accepted the impugned order. In the subsequent decision of Hon ble Bombay High Court in case of M/s. Mavany Brothers vs. CIT (supra) has considered this issue in para 13 as under :- 13. We have considered the rival contentions. The jurisdiction under Section 147/148 of the Act is an extra ordinary jurisdiction and can only be exercised when condition precedent as provided in Sections 147/148 of the Act are satisfied. It is the appellant's case that the aforesaid conditions are not satisfied inasmuch as in the absence of the Assessing Officer having the original return of income available it would not be possible for him to have a reasonable belief that income chargeable to tax has escaped assessment. This issue of jurisdiction according to the respondent - Revenue could only have been raised bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities.' (Kiran Singh case [AIR 1954 SC 340 : [1955] 1 SCR 117] , AIR p. 342, para 6) Thus, it is open to the petitioner to raise the issue of jurisdiction before the appellate authorities. Thus the Hon ble High Court has held that mere participation by the party in the proceedings without jurisdiction will not bestow/confer jurisdiction on the authority. In the case in hand, it is clear that the ITO Ward 7(2) Jaipur was not having jurisdiction over the assessee when the return was already filed and processed by the ITO Ward -1 Hanumanga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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