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2007 (3) TMI 658 - AT - Income TaxValidity Of Assessment Order passed by CIT(A) - Determination status of assessee is resident or non-resident? - income from property at Primrose Road as deemed let out and the rent being taken on notional basis - Income accrued in India - Determination of jurisdiction of AO - determination of quantum of interest u/s 244A - In the instant case as the facts stand the assessee claimed the status of a non-resident for the reasons brought out in the earlier paragraph and had filed it with the Assessing Officer (International Taxation). In view of specific delegation of exercising the power as an Assessing Officer only on persons who could be called non-residents the Assessing Officer (International Taxation) on finding that the assessee does not satisfy the conditions of a non-resident. The proper course of action that was expected of him is to transfer the file to the Assessing Officer who had territorial jurisdiction over the assessee as a resident or to such officer who would have jurisdiction over the assessee. In the instant case the Assessing Officer having noted from the facts on record and on applying the principles of law that he would not have jurisdiction over the assessee he may express his reasons therefor in the order sheet which may form the basis for the Commissioner of Income-tax for transferring the file to the Officer who would have a jurisdiction over him. Since the very crux of jurisdiction is shaken in the instant case that is the Assessing Officer (International Taxation) having found the assessee to be a resident he exercised jurisdiction over him. Since he had exercised jurisdiction without authority and without any authorization therefor the order passed by him suffers from lack of jurisdiction. Such an order would therefore become an illegal order and non est in the eye of law. We hold accordingly and quash the order. Though it may not be necessary to go into the merits of the issue before us namely inclusion of rent on notional basis and the calculation error in interest under section 244A of the Act we would as an abundant precaution cover these two issues also. Working of interest u/s 244A - HELD THAT - CIT (A) may not be said to be justified in not accepting the claim. The assessee has claimed that interest is payable for a longer period goes to the very root of chargeability of interest in favour of the assessee and therefore it is only proper he should have considered the same and it is not an isolated ground from the other grounds. Since it is raised along with the other grounds the same should have been considered. However since it is a matter of examination and calculation also the Assessing Officer is directed to examine the same and rework the same in accordance with the provisions of law. The assessment not being in accordance with law is quashed subject to our observations as above - In the result the appeal is allowed.
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