TMI Blog2015 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... business declared by the assessee company. Therefore, in the light of expressed provisions of Section 124 and Section 147 of the IT Act, the only officer who could have exercised jurisdiction over the case of the assesse, even for the purposes of issue of notice should be the jurisdictional ITO who is at New Delhi. We, therefore, are of the considered opinion that the assessee was correct in holding that the notice issued by the ITO Ward-3, Gurgaon on 13/3/2008 was without jurisdiction Applicability of provision of Section 292BB - Held that:- Section 292 BB being prospective in nature cannot be applied to the facts of the present case. Further, we are agreeable to the findings of the Ld.CIT(A) that Section 292 BB cannot be applied in a case where the notice u/s 148 has been issued by the A.O without having proper jurisdiction. - Decided against revenue - ITA No. 578/Del/2010 - - - Dated:- 21-10-2015 - N K Saini, AM And Beena Pillai, JM For the Appellant : Shri S K Jain, Sr. DR For the Respondent : Shri Ved Jain, CA ORDER Per Beena Pillai, Judicial Member The present appeal has been filed by the Revenue, against the order dated 30/11/2009, passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. The Ld. CIT(A) dealt with the legal issues relating to the jurisdiction of ITO Ward-3, Gurgaon to issue notice u/s.148 of the act,. On going through the submissions and judgments relied upon by the assessee, the ld.CIT(A) held that the notice u/s 148, issued by the ITO Ward-3, Gurgaon was without jurisdiction. The Ld. CIT(A), quashed the assessment proceedings and held the subsequent actions including issuance of Section 143(2) and passing of the order u/s 147 read with 143 (3) as void ab initio. The Ld. CIT(A) held that Section 292 BB of the Act cannot be applied to the facts of the assessee s case on two grounds. Firstly, the provision of Section 292 BB have been applied w.e.f 1/4/2008, and not retrospectively, as held by Hon ble Special Bench of ITAT, Delhi in the case of Cuber Tobacco Products Pvt. Ltd Vs. DSCIT reported in 117 ITD 273. Secondly, the Ld. CIT(A) held that, the assessee s case is not a question of issue of notice u/s 148 without any jurisdiction; rather the main question is to decide whether the A.O could have exercised correct jurisdiction and form requisite belief/satisfaction to examine whether the Assessing Officer irrespective of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment has been completed by yet another officer, being ITO-5 (3), New Delhi on 30/12/2008. 13. The only issue before us is as to whether, the ITO Ward-3, Gurgaon was competent to exercises the jurisdiction over the case of the assessee company, and had powers to issue notice u/s. 147 148 of the Act ,on 13/3/2008. 14. At this stage, it may be beneficial to make a reference to the provisions of Sections 147 and 124 dealing with the re-assessment and the jurisdiction of Assessing Officer s respectively. Section 147 of the IT Act reads as under:- If the Assessing Officer has reason to believe that any income, subject to the provisions of Section 148 to 153, assesses or reassesses such income 15. Similarly, Section 124 of the IT Act defines the jurisdiction of the AOs in the following manner:- Jurisdiction of Assessing Officer Whereby virtue of any direction or order issued under sub-section (1) or sub-section (2) of Section 120, the Assessing Officer has been vested with jurisdiction over any area, within limits of such area, he shall have jurisdiction- (a) In respect of any person carrying on a business or profession, if the place at whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration was filed or by the A.O Ward 5(3) New Delhi who had been assigned with the jurisdiction over company assessee. Since, this is a case where the assessee had actually filed a return of income with the DCIT, Circle 5(1), New Delhi, on 30/4/2004, the Income Tax Officer, Ward 3, Gurgaon, could not have exercises jurisdiction over this case of the assessee, on the basis of his territorial jurisdiction. It is also not a case where the ld.Assessing Officer questions the principal place of business declared by the assessee company. Therefore, in the light of expressed provisions of Section 124 and Section 147 of the IT Act, the only officer who could have exercised jurisdiction over the case of the assesse, even for the purposes of issue of notice should be the jurisdictional ITO who is at New Delhi. 17. We, therefore, are of the considered opinion that the assessee was correct in holding that the notice issued by the ITO Ward-3, Gurgaon on 13/3/2008 was without jurisdiction. Hence, Ground No. 1 of the Revenue is dismissed. Ground no. 2: Issue of 292BB 18. The provision of Section 292BB will not be applicable in the present case as it is not a case of a service/defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich validates the notice in certain circumstances. The newly inserted section 292BB provides that where an assessee has appeared in any proceedings or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under the Act that the notice was not served upon him or not served upon him in time or served upon him in an improper manner. In the present case, the Tribunal has returned the findings that the notice under section 143(2) of the Act was admittedly not issued in this case. The assessing authority thus did not have jurisdiction to proceed further and make assessment. We do not find that the non-consideration of section 292BB, which is rule of evidence, and a deeming provision to validate the notice in certain circumstances, will have any effect on the judgment in Hotel Blue Moon (2010) 321 ITR 362 (SC). It was held in Hotel Blue Moon s case (2010) 312 ITR 362 (SC) that the very foundation of the jurisdiction of the Assessing Officer is on the issuance of the notice under section 143(2). 22. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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