TMI Blog2014 (1) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... t Srinagar and accordingly present assessment cannot be made by the AO, Srinagar and the same is therefore, held to be invalid. - ITA No. 362/Asr/2013 - - - Dated:- 30-1-2014 - H. S. Sidhu (Judicial Member) and B. P. Jain (Accountant Member) For the Assessee : Upender Bhat For the Revenue : Mahavir Singh ORDER This appeal of the assessee arises from the order of the CIT(A), Jammu dt. 8th March, 2013 for the asst. yr. 2003-04. The assessee has raised following grounds of appeal : 1. That on the basis of facts and circumstances of the case the learned CIT(A) has erred in not deleting the addition made by the AO by treating the assessment as bad in law as no jurisdiction vested with the AO as required by law. In any view of the matter and in any case the action of the learned CIT(A) in not deleting the additions/setting aside the order of the AO is bad in ^ law as the same was passed without assuming proper jurisdiction. 2. That on the basis of facts and circumstances of the case the learned CIT(A) has erred in not deleting the addition made by the AO by treating the assessment as bad in law as no proper approval of competent authority i.e. Jt. GIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in response to notice under s. 148 of the Act. Thereafter, a detailed questionnaire along with notices under s. 142(1) was issued on 17th Sept., 2009 fixing the case of the assessee on 5th Oct., 2009. In above referred questionnaire, the assessee was asked to explain the following : 'In this connection you are requested to intimate the undersigned whether any return in response to the notice under s. 148 of the Act dt. 30th March, 2009 has been filed by you or not. If yes, please give the number and date of acknowledgement receipt and furnish a photo copy of the same. As per your bank account No. SB 332 maintained with J K Bank Ltd., Chanapora, Srinagar there are aggregate credits of ₹ 2427,518 credited on different dates. In this regard you are requested to intimate the source of such credits. Also intimate your source of income.' 2. On the date of hearing, none attended the proceedings nor any reply was received in this office. To be fair and reasonable to assesee, a show cause dt. 9th Oct., 2009 was issued and sent through speed post, asking the assessee to furnish the requisite information on or before 23rd Oct., 2009. It was also intimated to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Receipt No. Date 2005-06 No. not eligible 25-8-2005 2. 2006-07 4640003353 19-7-2006 3. 2007-08 4640017494 July, 2007 4. 2008-09 11314901022310 22-3-2010 5. 2009-10 113141460220310 22-3-2010 6. 2010-11 202419560250311 25-3-2011 However, there is no proof of the returns for the asst. yrs. 2003-04 and 2004-05. 5. Rejoinder to the remand report from the appellant dt 5th March, 2013 In response to the hearing conducted by your honour in the above case and further to the remand report issued/received by your honour from the ITO, Ward 3(1), Srinagar, we would like to submit our observations on the remand report submitted by him. 5.1 That the proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier reply before your honour. 5.6 That the assessee during the course of assessment proceedings brought the jurisdiction issue to the notice of the kind AO who refused to accept the same for the reasons best known to him and the assessee has compelled to send the reply on 15th Dec., 009 by post/courier which has been received on 16th Dec., 2009 and inspite of having received the letter, the learned AO proceeded to pass the order on 18th Dec., 2009. Necessary proof for receipt of letter by the AO intimating therein the proceedings beyond his jurisdiction stand already forwarded to your honour along with our earlier replies. 5.7 That the assessee asserts that there has been no non co- operation/non-compliance of notices issued to her since the earlier notices, if any, have been issued at her Srinagar address and no notice has been addressed at her residence at Neelpadam Kunj, Vaishali, Ghaziabad, UP except for notice received on 20th Nov., 2009 when the assessee was incidentally in Srinagar for a short visit. 5.8 That the assessee has already filed detailed reply before your honour dt. 11th May, 2005 wherein the assessee has agitated the action of the AO not only with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Considering the issue of jurisdiction the appellant has challenged order of the AO on the ground that jurisdiction of her case lies with ITO Ward 46 (4), New Delhi and not with the AO at Srinagar. It is found that the appellant had filed her returns for the asst. yrs. 2005-06, 2006-07, 2008- 09 and 2010-11 at Delhi. When the AO in the remand report pointed out that prior to asst. yr. 2005-06 no return was filed at Delhi, the appellant commented that it was because of the fact that her income was below the taxable limit. Here, I would like to point out that the jurisdiction of the case is generally decided by the place of residence. There is no denial that the appellant has a place of residence at Srinagar and was also operating a bank account over there. The AO at Srinagar has rightly assumed the jurisdiction. So far filing of return at Delhi is concerned it must be out of the assumed jurisdiction. So far filing of return at Delhi is concerned it must be out of the own volition and not by specific assignment of jurisdiction by any IT authority. Regarding change of her residence from Srinagar to Neelpadam Kunj Vaishali, Ghaziabad UP is concerned, in normal parlance the jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er important issue to be noted is that the learned CIT(A) has tried to- cover the issue by wrongly referring to the attendances of the assessee on 7th Dec., 2009 and his submissions on 15th Dec., 2009 to be the ground for rejecting the plea of the assessee regarding non-service of notice as referred to in AO's order referring to the date 30th March, 2009. The learned CIT(A) while referring to their attendances of the assessee on 7th Dec., 2009 and 15th Dec., 2009 referred to in the above has ignored the fact that the assessee had tried to impress upon the AO that the assessee is filing his return at Delhi and that the AO has no jurisdiction over the case. Thus, it is established that there has been no service of the notice and at the time of issuance of notice no approval of the Addl. CIT had been obtained. The learned CIT(A) taken recourse to s. 292BB of the IT Act, 1961 ignoring the fact that the assessee did not co-operate in assessment proceedings and always objected on the points : (i) That there has been no valid service of the notice. (ii) That the AO has no jurisdiction over the assessee. Further s. 292BB is not applicable to asst. yr. 2003-04 and there has been n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icability of s. 69A of the Act. Accordingly, the learned counsel for the assessee prayed to allow the appeal of the assessee. 7. The learned Departmental Representative, on the other hand, relied upon the orders of both the authorities below. 8. We have heard the rival contentions and perused the facts of the case. There is no dispute to the facts, as is evident from the order of the AO that a notice under s. 148 of the Act was issued on 30th March, 2009 after recording the reasons and after obtaining approval from the Addl. CIT vide letter No. 1147 dt. 30th March, 2009. In this regard, there is no dispute to the fact that the approval of Addl. CIT, Range-Ill, Srinagar, was obtained vide letter No. 1147 dt. 30th March, 2009 only. There is no reference of any earlier notice under s. 148 of the Act. The learned counsel for the assessee, Mr. Upender Bhat, chartered accountant invited our attention to the letter dt. 1st Nov., 2008 issued by the ITO Ward-1, Sringar, which clearly refers to the notice issued by the said office under s. 148 for the impugned assessment year which is dt. 23rd Jan., 2009 and letter dt. 8th Nov., 2007 in this regard. For the sake of convenience, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at my office at Raj Bagh on 27/11/2008 at 11.30 AM/PM the accounts and/or documents specified below/overleaf. (c) furnish in writing and verified in the prescribed manner information called for as per annexures and on the points or matters specified thereinbefore me at my office at......... on ...at AM/PM. Yours faithfully, Sd/ AO, ITO, Srinagar. 8.2 Therefore, in the facts and circumstances of the present case and the notices issued by the Department reproduced hereinabove, which have not been denied by the learned Departmental Representative, the AO Srinagar had issued notice under s. 148 on 23rd Jan., 2008 without obtaining the approval from the Addl. CIT, which approval, in fact, was taken vide letter No. 1147 dt. 30th March, 2009 which is evident from p. 1 of AO's order as reproduced hereinabove. As per s. 151(2), no notice under s. 148(1) can be issued by an AO, who is below the rank of Jt. CIT, after the expiry of four years from the end of the relevant assessment year, unless the Jt. CIT is satisfied, on the reasons recorded by such AO, that it is a fit case for the issue of such notice. In the present case, such satisfaction of Jt. CIT/Addl. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ambica Industries, which could enable us to take a view different. It was a well accepted principle that there could be only one AO in respect of a case. At the point of time, when the present appeals were filed, the AO insofar as all the cases of the respondent were concerned, was the AO at Delhi. It was held that the fact that the Amritsar Bench of the Tribunal had passed the impugned orders or the fact that the initial assessment orders were passed by the AO at Jammu would not be relevant for the purposes of determining the jurisdiction of the Court at the point of time at which an appeal under s. 260A was filed. It was the date on which the appeal was filed which would be the material point of time for considering as to in which Court the appeal was to be filed. On the dates on which the present appeals were filed, the AO of the assessee was the AO at New Delhi and therefore, High Court, Delhi would have jurisdiction to entertain these appeals. In view of the foregoing, it was held that the present appeals were maintainable before High Court, Delhi. When the AO itself has been changed from One place to another, the High Court exercising jurisdiction in respect of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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