TMI Blog2005 (6) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the period of limitation and secondly, that the authorised representative of the assessee were not within the jurisdiction to surrender the explained income of Rs. 3,00,000. 2. The relevant and material facts for the disposal of this ground of appeal are that the assessee had made an investment of Rs. 3,00,000 in FDRs, which were not shown in the balance sheet filed along with the original return of income. The Assessing Officer conducted enquiries in the case of the assessee and found that during the period relevant to assessment year 1995-96 the assessee had made investment of Rs. 3,00,000 in FDRs. The Assessing Officer issued notice dated 23-4-2001 to the assessee under section 148 to assess the escaped income in the form of unexp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee after the expiry of 12 months from the end of the month in which the return is filed. The proceedings conducted or the order passed in pursuance of such notice is null and void . He further contended that in the instant case in response to notice under section 148 he filed the return of his income on 8-5-2001. On 16-9-2002 the notice under sections 143(2), 142(1) was issued against the assessee. Since this notice under section 143(2) is issued by the Assessing Officer after the statutory period of limitation of 12 months so the notice issued under section 143(2) is invalid and hence, the assessment framed in pursuance of this notice by the Assessing Officer is also invalid and the same is required to be quashed. In support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdships at page 339 held as under : "The contention for the revenue that no appeal lay to the AAC against the ITO s assessment order because it was based on the concession made by the assessee s counsel could not be accepted. No such objection was taken before the AAC or the Tribunal. Further, the assessee was an aggrieved person because the assessment was framed by the ITO on a concession wrongly made on a question of law. Moreover, no reference had been made to the High Court on this point." In the case of Sterling Machine Tools v. CIT [1980] 123 ITR 181 (All.) their Lordships at page 182 held as under : "( ii )That the letter of S, a partner of the assessee-firm, being a voluntary one and the assessee having agreed to the cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y period of limitation of 12 months. Since this notice has been issued by the Assessing Officer in violation of the statutory provision of section 143(2), the same is liable to be cancelled/quashed and the assessment framed in pursuance thereof is also liable to be quashed along with the demand raised therein. In my above view I find support from the decision of the Special Bench of the Tribunal in the case of Raj Kumar Chawla v. ITO [2005] 94 ITD 1 (Delhi) wherein the Tribunal held as under: "4. Similar issue came up for consideration before the ITAT, Delhi Bench in the case of Whirlpool India Holdings Ltd., New Delhi v. Dy. DIT , International Taxation, Circle : 2(2), New Delhi, reported in (2005) 26 IT Rep. 214 (ITAT - Delhi) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the same was not voluntary and was against the evidence placed on record before the assessing authority. The other two citations are distinguishable on facts because in the instant case of the assessee since the assessing authority had failed to serve the notice under section 143(2) upon the assessee within the statutory period provided under section 143(2), hence the Assessing Officer had lost its jurisdiction to make assessment under section 143(3) read with section 147 which means that in this case the assessee has challenged even the assumption of jurisdiction by the Assessing Officer in framing the assessment under section 143(3) read with section 147 and so the surrender obtained by the Assessing Officer from the assessee durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully following the ratio laid down in this decision ( supra ) by the Hon ble Bombay High Court as the notice issued under section 143(2) by the Assessing Officer is invalid so assumption of jurisdiction by the Assessing Officer in completing the assessment under section 143(3) read with section 147 is also improver and so the assessee cannot be debarred from raising this legal issue before the Tribunal merely because a particular amount was surrendered by the representative of the assessee before the Assessing Officer and the same is also under challenge before the Tribunal. Hence, I find no force in the contention of the learned Departmental Representative for the Revenue and accordingly the same is rejected. For the reasons stated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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