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TMI Blog2015 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee filed its return of income on 30/4/2004 declaring total income of Rs. 1,86,100/- on the basis of information received from the DIT Investigation. The Ld. Assessing Officer, being ITO Ward-3, Gurgaon issued notice u/s 148 of the Income Tax Act on 11/3/2008. 4. The assessee company was incorporated on 20/6/2003having principle place of business at New Delhi, and F.Y 2003-04 was the first year of its operation. The notice u/s 148 dated 11/3/2008 was issued by the ITO Ward-3, Gurgaon without providing any reasons for reopening the reasons recorded by the ITO Ward-3, Gurgaon for issue of notice under section 148 of the Income Tax Act. It was intimated by the assessee on receipt of the notice u/s 148 that, the jurisdiction in the case of the assessee for the relevant assessment year was Delhi. Subsequently, the A O transfers the case to Delhi. Notice u 143(2) dated 3/7/2008, notice under 143(3) dated 12/11/2008 was issued by ITO Ward-5(3), New Delhi and also provided with the reasons recorded for reopening the assessment on 08.12.2008. The jurisdictional A.O proceeded to complete the assessment u/s 147 read with 143(3) of the Income Tax Act vide his order dated 30/12/2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated above that the first response from the assessee's side after the issue of notice u/s 148 by the ITO, Gurgaon, was by way of its letter dated 5/12/2008. In these circumstances, I fail to understand as to how the Ld. A.O could issue a notice u/s 143(2) without there being a return filed in response to notice u/s 148 or even without getting return of income filed suo moto on 30/4/2004, regularized." 7. The Ld. CIT(A), therefore, annulled the assessment made in terms of 147 read with 143(3) of the Act. 8. Aggrieved by the order of the Ld. CIT(A) the Revenue is in appeal before us. 9. The Ld. DR supports the orders of the Ld.CIT(A) A.O. He submitted that the notice issued u/s 148 by the ITO Ward-3, Gurgaon was received by the assessee, and thereafter, the assessment has been transferred to the jurisdictional ITO at Delhi. The assessee has not objected to the action of the A.O and has himself opted for continuation of the re-assessment proceedings. 10. The DR submitted that Section 292 BB preclude such cases where the assessee has no objection to the continuation of assessment of re-assessment proceedings. 11. We have perused the records produced before us, the orders passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer - (a) Where he has made a return [under sub-section(1) of Section 115WD or] under sub-section(1) of Section 139, after the expiry of one month from the date on which he was served with a notice under sub section(1) of section 142 or [subs section(2) of section 115 WE or] sub-Section(2) of Section 143 or after the completion of the assessment, whichever is earlier. (b) Where he has made no such return, after the expiry of the time allowed by the notice under [sub section (2) of the Section 115WD or sub-Section (1) of Section 142 or under Sub-Section 115WH or under 148 or under Section 148 for the making of the return or by the notice under the first proviso to Section 115WF of under the first proviso Section 144] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer , whichever is earlier." 16. From the discussion, it may be seen that the words used in Section 147 of the Act are " the Assessing Officer " and which clearly means a particular officer who has the jurisdiction, over the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or reassessment.] 19. On going through the above it is to noted that this provision is regarding service of the notice. In the case of reassessment u/s 148 the AO having jurisdiction has to record reasons and also issue notice u/s 148. Thus both the conditions of recording reasons and issue of notice are to be satisfied. In the section 292BB there is no reference regarding recording of reasons. Thus in the absence of reasons being recorded by AO having jurisdiction, the reassessment proceedings will be void abinitio. 20. Further, 292BB cannot confer jurisdiction on a person, who is not the AO. In terms of notification issued u/s 120(1) of the Act. Secondly provisions of Section 292BB are applicable from assessment year 2008-09 as has been held by the jurisdictional High Court in the case of CIT vs. Mani Kakar (2009) 18 DTR (Del) 145. It may be important to note that in this case also the issue was of reassessment u/s 148 and the Court has held that no reliance can be on the provisions of Section 292BB since this provision was not applicable to the assessment year 2001-02. 21. Allahabad High Court in the case of CIT & Anr. Vs. Mukesh Kumar Agrawal 345 ITR 29 (All) has dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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