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2023 (3) TMI 1145 - AT - Income TaxValidity of Revision u/s 263 - validity of transfer order u/s 127 - Validity of assessment order paased by non jurisdictional AO - as argued assessment order passed by AO is void, illegal and non-est - As per assessee initial notice of assessment was issued by the ITO Ward-4 Palanpur and without completing the procedure as laid out u/s 127 for transfer of jurisdiction without any prior intimation to the assessee, the case file of the assessee was transferred to ITO Ward 3(3)(2) Ahmedabad and therefore the assessment order itself was bad in law - HELD THAT:- DR has not been able to bring forth any material on record to substantiate that the procedure as envisaged under section 127 of the Act for transfer of files was fulfilled in the instant set of facts. It is a well-settled principle of law that power of transfer is a quasi-judicial function and was be exercised in a fair and reasonable manner and not in an arbitrary or mechanical way. The opportunity of being heard must be given to the assessee not only when the case is to be transferred despite the objection of the assessee, but also when it is not to be transferred despite his request. Needless to say, the objections raised by the assessee must be appropriately dealt with by the Commissioner and an order that does not consider the objections is liable to be quashed. As decided in case of Melco India (P.) Ltd. [2002 (1) TMI 11 - DELHI HIGH COURT] held that since no notice u/s 127 of the Act was issued to petitioners giving them an opportunity of being heard, impugned order passed by Commissioner was invalid and liable to be set aside - we are of the considered view that since the necessary procedure for transfer of case was not followed in the instant set of facts, the assessment order in the instant set of facts is null and void. Also no fresh notice of assessment was issued by ITO Ward 3(3)(2) and for this reason also, the assessment order passed by ITO Ward 3(3)(2) is null and void since there is a legal requirement to issue a separate notice of assessment to the assessee. Once it is held that the assessment order itself is null and void, can such assessment order be the subject matter of revision u/s 263? - It is a well-settled principle of law that once the assessment order passed itself is null and void, the same cannot be the subject matter revision under section 263 of the Act. In the case of Inder Kumar Bachani (HUF) [2005 (12) TMI 240 - ITAT LUCKNOW-A] ITAT held that as the order of the Assessing Officer passed under section 147 / 143(3) was itself void, the order of PCIT passed under section 263 for quashing this order was without jurisdiction. Thus we are of the considered view that since the assessment order passed by ITO Ward 3(3)(2), Ahmedabad itself was null and void, the same could not be the subject matter of revision under section 263 of the Act. Appeal of the assessee is allowed.
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