TMI Blog2008 (10) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... he present notice has been issued u/s.147 by the ITO, Ward 25(4), when the jurisdiction over the assessee s case was with ITO, Ward 24(1), New Delhi. Thus, from this aspect of the matter also, the notice u/s.147 issued by ITO, Ward 25(4) was without jurisdiction. Moreover, the ITO, Ward 33(2) who passed the present assessment order without issuing any fresh notice u/s.148 cannot be said to have a valid jurisdiction over the assessee unless and until the case has been transferred to him from ITO, Ward 25(4), by an order passed u/s.147 by any competent authority. In the present case, the ITO, Ward 33(2) had exercised the jurisdiction merely on the basis of intimation given by the ITO, Ward 25(4), and merely on file being transferred by the ITO, Ward 25(4) of his own to the ITO, Ward 33(2). The Hon ble Delhi High Court in the case of CIT vs. Smt. Anjali Dua [ 2008 (7) TMI 958 - DELHI HIGH COURT] held that the notice issued u/s.148 by the then ITO, Ludhiana was without jurisdiction inasmuch as the assessee had shifted from Ludhiana to New Delhi and had been filing his return of income for AY. 1997-98 onwards at New Delhi. We are inclined to uphold the order of the CIT(A) in hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt No. 25/4202, SBI, Rohtak Road, Delhi, by using the address 487/107, New Ramlila Ground, Peera Garhi, Delhi. Having received the notice issued by the AO under s. 148 of the Act, the assessee raised an objection before the AO challenging the jurisdiction of the ITO, Ward 25(4) vide his letter dt. 30th April, 2002 and requested to drop the proceedings. Before the ITO, Ward 25(4) the assessee furnished his address as 1821/50, Naiwala, Karol Bagh, New Delhi. On the basis of this information as to the address of the assessee, the ITO, Ward 25(4) transferred the case to ITO, Ward 33(2), New Delhi. Thereafter, the ITO, Ward 33(2) issued notice under s. 142(1) of the Act to the assessee and then completed the assessment under s. 143(3)/148 of the Act vide order dt. 24th March, 2003. Being aggrieved with the action of the ITO, Ward 33(2), New Delhi in completing the assessment under s. 148 on the basis of the notice issued under s. 148 by the ITO, Ward 25(4), the assessee preferred an appeal before the CIT(A) challenging the validity of the proceedings initiated under s. 147 of the Act as well as the assessment so completed under s. 147 of the Act. Before the CIT(A), the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned ITO at para 4 of his order that challenge of territorial jurisdiction was not tenable because address of 487/107, near Ram Lila Ground furnished by the assessee in the bank account was with the intention to conceal the proper jurisdiction. In this connection, it is submitted that before Your Honour that assessee filed its IT return for the asst. yr. 1995-96 on 31st Oct.,1995 vide R. No. 4365 in Ward 24(1) where the assessee had the proper jurisdiction over the case and the assessee had given the same address i.e. 487/107, Peera Garhi. Photostat copy of the acknowledgement of IT return for the asst. yr. 1995-96 having been filed in Ward 24(1) is placed as per Annex. E. It is pertinent to mention here that both the learned ITOs had no earlier assessment records of the assessee and as such the reopening of the case is illegal. In this connection, it is brought to your kind notice that interest of ₹ 4,35,940 was charged under s. 234A against which assessee filed application under s. 154 on 5th May, 2003 claiming that assessee did file its return on 31st Oct.,1995 in Ward 24(1). Photostat copy of application under s. 154 on 9th May, 2003 and reduced the interest un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening of the case is illegal, arbitrary, without any jurisdiction, without any application of mind and against the facts and circumstances of the case and thus bad in law. Before the CIT(A), the assessee also cited number of decisions in support of his contentions, which have been mentioned by the CIT(A) at pp. 5 and 6 of his order. The assessee s contentions were intimated to the AO by the CIT(A) for his comments and explanation. The AO submitted a remand report to the CIT(A) which has been reproduced by the CIT(A) in para 7 of his order as under: 1. The information was received from Dy. Director of IT (Inv.), Faridabad, that Shri Krishan Kumar Gupta had introduced the funds amounting to ₹ 4,75,000 through the accommodation entry in the form of agricultural income with the help of the Jai Trading Co. in his bank account No. 25/4202 with SBI, Rohtak Road, DSIDC, Delhi by using the address 487/107, Near Ramlila Ground, Peera Garhi. ITO, Ward 25(4) having territorial jurisdiction over the address 487/107, Peera Garhi, moved a proposal for initiating the proceedings under s. 148 and for obtaining the approval of the CIT vide letter dt. 26th March, 2002 which was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though ITO, Ward 24(1) has all the territorial jurisdiction over the 487/107, Peera Garhi, however, since the appellant had challenged the jurisdiction, the ITO, Ward 25(4) transferred the case to the present AO [ITO, Ward 33(2)] who had the right to issue notice. The appellant has also challenged the action of the ITO, Ward 33(2) in completing the case. It has been contended that the ITO, Ward 33 (2) should have issued fresh notice under s. 148 before going to make assessment proceedings under s. 144. This has not been done. The contention of the appellant appeared to be correct. The AO, Ward 25(4) who has issued notice under s. 148 did not have the appropriate jurisdiction to issue notice under s. 144. The AO, Ward 33(2) should have issued a fresh notice under s. 148 before passing the order under s. 143(3) r/w s. 147/148. This was not done, Hence appellant s contention that notice under s. 148 should be vitiated having been issued by an officer not having jurisdiction over the case is correct. Subsequently, the case has been transferred to ITO, Ward 33 (2) who has passed the order. He has also not bothered to issue fresh notice under s. 148. The appellant has only raised a fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave gone through the orders of the authorities below. It is not in dispute that the notice under s. 147 was issued by the ITO, Ward 25(4) on the basis of the address mentioned in the bank account of the assessee with the SBI, Rohtak Road, DSIDC, Delhi. Having received the notice under s. 148 issued by the ITO, Ward 25(4) the assessee raised objection challenging the jurisdiction of the ITO, Ward 25(4) vide letter dt. 30th April, 2002. The assessee mentioned that the assessee had addressed at 1821/50, Naiwala, Karol Bagh, New Delhi. The ITO, Ward 25(4) thereafter transferred the file to the ITO, Ward 33(2), New Delhi, who ultimately completed the assessment under s. 143(3)/148 of the Act on 24th March, 2003. The ITO, Ward 33(2) did not issue any fresh notice under s. 148 of the Act to the assessee. He had taken up the case from the stage of issuing the notice of hearing under s. 142(1) or 143(2) of the Act. From the aforesaid facts discussed above, it is clear that the ITO, Ward 25(4) had accepted the assessee s objection and then transferred the file to the ITO, Ward 33(2), New Delhi. Had the ITO, Ward 25(4) had valid jurisdiction over the assessee and validly issued the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, the ITO, Ward 33(2) had exercised the jurisdiction merely on the basis of intimation given by the ITO, Ward 25(4), and merely on file being transferred by the ITO, Ward 25(4) of his own to the ITO, Ward 33(2). The Hon ble Delhi High Court in the case of CIT vs. Smt. Anjali Dua (supra) has held that the notice issued under s. 148 on 28th March, 2003 by the then ITO, Ludhiana was without jurisdiction inasmuch as the assessee had shifted from Ludhiana to New Delhi in July, 1997 and had been filing his return of income for asst. yr. 1997-98 onwards at New Delhi. In the case of Ranjeet Singh vs. Asstt. CIT (supra), the Tribunal has held that the notice issued by the ITO, Ward 2(2), Ghaziabad, was not in substance and effect in conformity with the provisions of s. 120 r/w s. 147 of the Act as the notice was issued without jurisdiction . In that case, it was found by the Tribunal that having received the notice under s. 148, the assessee raised the objection immediately by saying that he was assessed to tax by Dy. CIT, Circle 21(2), New Delhi, and notice issued by the ITO, Ghaziabad, was invalid. In the light of the discussions made above, we are inclined to uphold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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