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2019 (10) TMI 344 - AT - Income TaxValidity of notice u/s 143(2) - no notice by AO who held valid jurisdiction over the appellant’s case given - transfer of jurisdiction of a case u/s 127 - curable defect - HELD THAT:- contention put forth by the ld. CIT, DR that provisions of Section 124(5) being overriding in nature, the ACIT Circle 21(1), New Delhi simultaneously held concurrent jurisdiction is devoid of any merit. Such interpretation is not in accord with the extant provisions of Section 124(5) read with Section 127 of the Act. The legal proposition pre-supposes that the original notice u/s 143(2) was issued by an officer who held valid jurisdiction over the ‘case’ of the assessee. We however find that although in June 2016, the jurisdiction over the assessee’s case was vested in ACIT, Central Circle 1, Ranchi, he never issued notice u/s 143(2). On the contrary the notice was issued by the ACIT, Circle 21(1), Delhi who, as held earlier, ceased to have jurisdiction over the appellant’s case after 08.10.2008. - in the given facts of the case, the appellant’s case was not saved by the provisions of Section 124(5) as also by Section 127(4). There was no necessity for the assessee to have questioned the jurisdiction of AO at Delhi, as envisaged under sub-sec. (3) of sec. 124 of the Act since in the first place AO at Delhi legally enjoyed jurisdiction u/s. 124 of the Act over the assessee’s case. In our opinion such an order is bad in law as held by the Hon’ble Supreme Court in CIT V Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] wherein has held that issue of a legally valid notice u/s. 143(2) is mandatory for usurping jurisdiction to frame scrutiny assessment u/s. 143(3) of the Act and absence of a valid notice u/s 143(2) is not a curable defect. This view was reiterated by the Hon’ble Apex Court in the case of CIT Vs Laxman Das Khandelwal [2019 (8) TMI 660 - SUPREME COURT] . The decision of the Hon’ble Bombay High Court in the case of Fiat India Automobiles Ltd Vs Vijender Singh [2012 (11) TMI 287 - BOMBAY HIGH COURT] support the legal ground canvassed by the appellant before us. We uphold the objections raised by the appellant against the validity of the impugned order u/s 143(3) for AY 2015-16. We accordingly hold that since in the present case no valid notice u/s 143(2) was issued by the AO who held jurisdiction over the case of the appellant, the consequent order passed u/s 143(3) dated 29.12.2017 was legally unsustainable and therefore is null in the eyes of law and therefore quashed. - Decided in favour of assessee.
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