TMI Blog2015 (6) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... r Yadav And Shri. A. K. Garodia JJ. For the Appellant : Shri. R. C. Jain, C.A. For the Respondent : Shri. Punit Kumar, D.R. ORDER Per Sunil Kumar Yadav: This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on various grounds which are as under:- 1.1 Because the notice u/s 143(2) having been served beyond the limitation period, the learned assessing officer lacked the jurisdiction for making the assessment and hence the order passed u/s 143(3) is liable to be cancelled. 1.2 Because the finding of the learned first appellate authority in regard to notice dated 30-09-2010 u/s 143(2) of the Income Tax Act, 1961 is erroneous as it pertains to the issue of notice by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority failed to appreciate that the Assessing Officer applied Rule 8D in a mechanical manner without application of mind and without regard to facts and reply of the assessee; so much so that the learned assessing officer recorded an erroneous finding by stating that the assessee submitted that no expenditure has been incurred on this account though the assessee on its own had determined expenditure of ₹ 41,837/- for earning the exempt income and made disallowance on its own and gave detailed submissions during hearing in this regard and even the disallowance of ₹ 41,8377- made by the assessee on its own was not excluded by the learned assessing officer from the total disallowance. 3. 3 Because the learned assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has invited our attention to the assessment order with the submission that the return was filed on 30.9.2008, which was later on revised by filing a revised return on 30.3.2010. In view of the provisions of section 143(2) of the Act, the notice under section 143(2) of the Act was required to be served upon the assessee latest by 30.9.2010, but the notice under section 143(2) of the Act was issued on 15.11.2010, though it has been mentioned in the assessment order that notice under section 143(2) of the Act was served on 30.9.2010. Since there was a dispute with regard to the issuance and service of notice under section 143(2) of the Act, the ld. D.R. was directed to obtain the assessment record and to furnish the copy of the notice alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, Smt. Ranu Biswas, DCIT, Range VI, Lucknow; whereas the earlier notice dated 30.9.2010 was issued by Shri. Manoj Nigam, Income Tax Officer 1(4), Lucknow. In fact DCIT-VI, Lucknow is having jurisdiction over the assessee. Therefore, the earlier notice dated 30.9.2010 was not issued by an Assessing Officer having jurisdiction over the assessee. 4. These facts were confronted to the ld. D.R. The ld. D.R. was asked to explain and establish that the notice dated 30.9.2010 was issued by an Officer having jurisdiction over the assessee. In response thereto, the ld. D.R. has submitted that the Income Tax Officer 1(4), Lucknow was PANIncome Tax Officer, therefore, he can issue notice under section 143(2) of the Act upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment framed consequent thereto cannot be held to be valid. If the notice under section 143(2) of the Act dated 30.9.2010 is held to be invalid, the other notice dated 15.11.2010 was time barred, as it was issued after the prescribed period. Therefore, in the light of both the notices issued under section 143(2) of the Act, it cannot be said that the Assessing Officer has validly assumed jurisdiction over the assessee for completing the assessment under section 143(3) of the Act. 7. We have also carefully examined various judgments rendered on the subject and in the case of CIT vs. Mukesh Kumar Agarwal, 345 ITR 29 (Alld), in which it has been held by the jurisdictional High court that the very foundation of jurisdiction of the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving fresh return submitted by the assessee in response to notice under section 148 of the Act, the entire procedure adopted for escapement of assessment was not valid. It was also held by the Hon'ble High Court that the provisions contained in section 143(2) of the Act is mandatory in nature and shall be obligatory for the Assessing Officer to apply his mind to the contents of the return filed in response to notice under section 148 of the Act and record reasons and thereafter issue notice under section 143(2) of the Act before proceeding to decide the controversy with regard to the escaped assessment. 10. In the light of the aforesaid judicial pronouncements, we are of the considered view that since notice under section 143(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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