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2019 (6) TMI 799 - HC - Income TaxReopening of assessment u/s 147 - reasons recorded by DCIT whereas notice issued by ITO - Notice issued by an officer other than the officer who recorded the reasons for reopening - curable defect u/s 292B - HELD THAT:- It was not possible for the jurisdictional AO viz. the Dy. CIT to issue the notice u/s 148 on or before 31. 3. 2018 as migration of the Permanent Account Number was not possible within that short period. Therefore, the Income tax officer has issued notice u/s 148 instead of the jurisdictional Assessing Officer. Thus there is an admission on part of the first respondent that the Dy. CIT, Circle 2, Jamnagar who had jurisdiction over the petitioner had not issued notice u/s 148 but it is the Income tax officer, Ward 2(2), Jamnagar, who did not have any jurisdiction over the petitioner, in respect of the present case, who had issued such notice. As held in case of Hynoup Food & Oil Industries Ltd. [2008 (7) TMI 192 - GUJARAT HIGH COURT] it is the officer who records the reasons who has to issue the notice u/s 148(1) whereas in the present case the reasons have been recorded by the jurisdictional AO, whereas the notice u/s 148(1) has been issued by an officer who did not have jurisdiction over the petitioner. Since the notice u/s 148 is a jurisdictional notice, any inherent defect therein cannot be cured u/s 292B. In the facts of the present case, while the reasons for reopening the assessment have been recorded by the jurisdictional Assessing Officer viz. the Dy. CIT, Circle 2, Jamnagar, the impugned notice u/s 148(1) has been issued by the Income Tax Officer, Ward 2(2), Jamnagar who had no jurisdiction over the petitioner, and hence, such notice was bad on the count of having been issued by an officer who had not authority in law to issue such notice. As a necessary corollary it follows that no proceedings could have been taken u/s 147 in pursuance of such invalid notice. In the aforesaid premises, the impugned notice u/s 148(1) as well as all the proceedings taken pursuant thereto cannot be sustained. - Decided in favour of assessee.
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