TMI Blog2018 (5) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... and the time limit allowed to serve notice u/s 143(2) gets barred by 30.09.2014. Hence, the notice issued u/s 143(2) by the AO, Guntur on 14.11.2014. The prerequisite for making the assessment u/s 143(2) is service of valid notice. Non service of valid notice makes the assessment illegal and void-ab-initio. Hon’ble Supreme Court in the case of Bluemoon Hotels [2010 (2) TMI 1 - SUPREME COURT OF INDIA] held that the service of valid notice is prerequisite for making the assessment u/s 143(3). Since the notice issued u/s 143(2) in this case by the jurisdictional ITO held to be barred by limitation and the notice issued by ITO, Ward-1(1), Siliguri is without jurisdiction, we hold that the assessment made u/s 143(3) consequent to the notice issued u/s 143(2) by ITO, Ward-1(1) dated 14.11.2014 required to be squashed. - Decided in favour of assessee. - I.T.A.No.339/Viz/2016 And Cross Objection No.51/Viz/2016 - - - Dated:- 9-5-2018 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER For The Revenue : Shri Deba Kumar Sonowal, DR For The Assessee : Shri G.V.N.Hari, AR ORDER PER D.S. SUNDER SINGH, Accountant Member: This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the opportunity to the assessee. 5. Against the order of the Ld.CIT(A), the revenue filed appeal before this Tribunal challenging the powers of Ld.CIT(A) u/s 251 to remit the matter back to the file of the AO. 6. The assessee filed cross objection stating that the assessment order framed u/s 143(3) is barred by limitation. The cross objections raised by the assessee in this case reads as under : 1. The learned Commissioner of Income Tax (Appeals)1, Guntur ought to have held that the assessment based on the notice u/s 143(2) dt 14.11.2014 issued beyond the stipulated time period is barred by limitation. 2. Without prejudice to the above, the learned Commissioner of Income Tax (Appeals)-1, Guntur erred in upholding the action of the assessing officer in making the assessment ex-parte u/s 144 of the Act. 3. The learned Commissioner of Income Tax (Appeals) -1, Guntur ought to have deleted the entire additions of ₹ 15,20,36,691/- made by the assessing officer in the assessment made u/s 143(3) r w s 144 of the Act, Dt: 17-03-2015. 4. Any other ground of cross-objection that may be raised at the time of hearing. 7. The revenue s case is that the Ld.CIT(A) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.AR argued that the notice has to be issued by the jurisdictional AO and the jurisdiction cannot be conferred on another officer without having passed the orders u/s 127 of the act. Therefore, argued that the notice issued u/s 143(2) by the ITO,Siliguri is invalid. 10. We have heard both the parties and perused the material placed on record. The assessee is regularly assessed with the ITO, Ward-1(2), Guntur. He is residing and carrying on the business in Guntur and filed the returns of in come showing the AO as ITO, Guntur. Therefore, territorial jurisdiction and the regular jurisdictions are vested with the ITO, Ward- 1(2), Guntur. As per the provisions of the I.T.Act, notice u/s 143(2) is required to be issued by the AO having jurisdiction. For ready reference, we extract relevant part of the section u/s 143(2) ( 2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r] [or Deputy Director] or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the [Additional Commissioner or] [Additional Director or] [Joint Commissioner or Joint Director] who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer. 10.3. The AO is an authority who has been conferred with powers and functions to act as AO under the I.T.Act. The powers and functions and the AO s jurisdiction is notified by the CBDT/Pr.CCIT/Pr.CIT from time to time. In this case, the jurisdiction of the AO falls with the ITO, Ward-1(2), Guntur which was not disputed by the department. The ITO, Ward-1(1), Siliguri was not conferred with any powers u/s 127 against the assessee. The AO in relation to assessee means, the AO who is entrusted with the relevant jurisdiction as per the notification issued in this regard. There is no denying fact that the jurisdiction of the assessee is vested with the ITO, Ward-1(2), Guntur and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(2) gets barred by 30.09.2014. Hence, the notice issued u/s 143(2) by the AO, Guntur on 14.11.2014was barred by limitation. On the same facts, Hon ble ITAT, Delhi in the case of ITO Vs. NVS Builders Pvt. Ltd. in ITA No.3729/Del/2012 dated 08.03.2013 for the assessment year 2006-07 held that the entire assessment proceedings are vitiated because of non service of jurisdictional notice u/s 143(2) within the period of limitation by the AO having jurisdiction over the case. For the sake of clarity, we extract the relevant paragraph of the order of the Tribunal which reads as under : 5. We have considered, the rival submissions. It is not in dispute that return of income has been filed on 20th November, 2006 with ITO at New Delhi having jurisdiction over the case of the assessee. The La. DR. also brought on record same which support the claim of the assessee that assessee filed the original return of income at Delhi. The record also reveal that even for earlier and subsequent years, the assessee filed return of income at Delhi. The assessment in the present case has been framed by ITO, Ward-130), New Delhi, having jurisdiction over the case of the assessee, The ITO, Ward-1 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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