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2018 (8) TMI 1793 - AT - Income TaxChallenge of jurisdiction u/s.120(4)(b) - limitation u/s.124(3) - transfer u/s.127(3) - transferring the jurisdiction from the ITO Ward-1(1) Thanjavur to JCIT Thanjavur Range Thanjavur for framing the assessment - validity of notice u/s.148 issued by the JCIT Thanjavur Range Thanjavur - HELD THAT - Once the time limit for challenging jurisdiction has expired the same cannot be challenged. Admittedly the provisions of the section 292BB introduced by the Finance Act 2008 would not apply insofar as the assessee is not challenging the notices or the service of the notices but the assessee has challenged the very jurisdiction and the challenge to the jurisdiction has to be within the time provided u/s.124(3) of the Act. What is before the Tribunal is not the transfer of jurisdiction but is a challenge to the jurisdiction u/s.120(4)(b). This challenge to the jurisdiction is completely different from the challenge to the transfer of jurisdiction which has been made in the Writ Petition and which has been dismissed by the Hon ble jurisdictional High Court. Admittedly no evidence of filing of writ appeal or pendency of the Writ Appeal or any orders passed by the Hon ble jurisdictional High Court in respect of the Writ Appeal has been produced before us. The challenge to the jurisdiction u/s.120(4)(b) has not been made within the prescribed time u/s.124(3) of the Act to the authority whose jurisdiction is being challenged. Consequently the issue of the challenge of the jurisdiction no more survives. Penalties levied u/s.272(A)(2)(e) - assessee has never filed its returns earlier Registration u/s.12AA - HELD THAT - Admittedly the assessee has submitted that the assessee was under the bona fide belief that the JCIT Thanjavur Range Thanjavur did not have jurisdiction. Admittedly the assessee has never filed its returns hitherto earlier. This being so the bona fide belief of the assessee cannot be disregarded. Further perusal of the assessment order also shows that the AO has completed the assessment with the presumption that the assessee does not have registration u/s.12AA. The assessee has been granted registration u/s.12AA of the Act by an Order of the Tribunal which has been given effect by the Commissioner of Income Tax-II Trichy in his order dated 17.11.2011 granting the registration u/s.12AA of the Act with effect from 01.07.1973. This being so the issues in the assessment orders passed by the AO would have to be re-adjudicated afresh after considering the registration granted to the assessee-trust u/s.12AA. In these circumstances the issues in these appeals in respect of the merits are restored to the file of ld. Assessing Officer for re-adjudication after considering the registration u/s.12AA of the Act granted to the assessee by Commissioner of Income Tax . After considering that bona fide belief as also the factum of the registration u/s.12AA grant to the assessee we have restored the issues raised in the quantum appeals to the file of ld. Assessing Officer for re-adjudication. This view of ours herein is also on account of undertaking given by the Authorized Representative of assessee is that the assessee would co-operate in the set-aside proceedings. This bona fide belief of the assessee has not been shown to be false. It is very much plausible belief though it has not been upheld either by the Hon ble Jurisdictional High Court of Madras in the Writ Petition or by us in the quantum appeals. However such refusal to accept the bona fide belief would not make the bona fide belief of the assessee to be false or improbable or implausible. This being so we accept the reasonable cause shown by the assessee and the penalties levied u/s.272(A)(2)(e) of the Act stand cancelled
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