TMI Blog2019 (6) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... who has to issue the notice u/s 148(1) whereas in the present case the reasons have been recorded by the jurisdictional AO, whereas the notice u/s 148(1) has been issued by an officer who did not have jurisdiction over the petitioner. Since the notice u/s 148 is a jurisdictional notice, any inherent defect therein cannot be cured u/s 292B. In the facts of the present case, while the reasons for reopening the assessment have been recorded by the jurisdictional Assessing Officer viz. the Dy. CIT, Circle 2, Jamnagar, the impugned notice u/s 148(1) has been issued by the Income Tax Officer, Ward 2(2), Jamnagar who had no jurisdiction over the petitioner, and hence, such notice was bad on the count of having been issued by an officer who had not authority in law to issue such notice. As a necessary corollary it follows that no proceedings could have been taken u/s 147 in pursuance of such invalid notice. In the aforesaid premises, the impugned notice u/s 148(1) as well as all the proceedings taken pursuant thereto cannot be sustained. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 230 of 2019 - - - Dated:- 9-4-2019 - MS HARSHA DEVANI AND MR BHARGAV D. KA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 148 of the Act, the charge over the petitioner's case was transferred to the Assistant Commissioner of Income Tax (ACIT) who is the current Assessing Officer of the petitioner . 4 . 2) Upon receipt of the reasons recorded, the petitioner found that the same had been recorded by the Deputy Commissioner of Income Tax (DCIT), Circle2, Jamnagar . It appears that in the meanwhile, the petitioner participated in the assessment proceedings . Thereafter, by a letter dated 20 . 12 . 2018, the petitioner raised objections against the initiation of proceedings under section 148 of the Act . Before such objections could be decided by the respondent, the petitioner has filed the present petition seeking reliefs noted hereinabove . 5 . Mr . Darshan Gandhi, learned advocate for the petitioner invited the attention of the court to the impugned notice to point out that the same has been issued by one Mr . Neeraj Kumar, Incometax officer, Ward 2(2), Jamnagar . Referring to the reasons recorded, it was pointed out that the same has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice . 6 . Opposing the petition, Mrs . Mauna Bhatt, learned senior standing counsel for the respondents, submitted that in this case the petitioner has responded to the notice issued under section 148 of the Act and has participated in the proceedings pursuant thereto, which have culminated into the impugned assessment order . It was submitted that the petitioner is, therefore, required to be relegated to the remedy of appeal under the relevant statutory provisions . It was further submitted that the petitioner has initially participated in the proceedings under section 147 of the Act and has belatedly raised the objections and before such objections could be dealt with, has approached this court, and hence, this court may not entertain this petition at this stage . 6 . 1) As regards the contention raised by the petitioner that the notice under section 148 of the Act having been issued by an officer other than the officer who recorded the reasons for reopening the assessment, the attention of the court was invited to the averments made in the affidavitinreply filed by the first resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the petition . 8 . In the present case, what is the subject matter of challenge is the notice issued under section 148 of the Act on the ground that the assumption of jurisdiction on part of the Assessing Officer by issuance of such notice is invalid . The sole contention on the basis of which such notice is challenged before this court is that the notice has been issued by the Income Tax Officer, Ward No . 2(2) Jamnagar, whereas the reasons have been recorded by the Deputy Commissioner of Incometax, Circle2, Jamnagar . In this regard, reference may be made to section 147 of the Act which provides that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently during the course of the proceedings under that section . Section 148 of the Act provides for issue of notice where income has escaped assessment and provides that before makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... last moment to the DCIT, Circle2 . But as the income of the assessee was more than Rs . 15 lakh, the DCIT/ACIT, Cir2, Jamnagar held the jurisdiction over the case as per CBDT Instruction . The notice u/s 148 was required to be issued by 31/03/2018 and the migration of the PAN was not possible in that short period . It is pertinent to mention that as per the prevailing scheme of eassessment, the assessment was required to be made as eAssessment and all the correspondences/notices needed to be done online through the ITBA application as the such correspondences/notices then goes to the efiling account of the assessee which enable the assessee to respond through his/her efiling account . As the PAN was lying in the jurisdiction of the Incometax Officer, Ward2( 2) Jamnagar, the notice was issued from petitioner's Assessing Officer code . However, the assessment was completed by DCIT/ACIT, Circle2, Jamnagar who was holding the jurisdiction over the case and who recorded the reasons for reopening and formed his belief for reopening u/s 147 . Since the assessment was completed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A notice under section 148(1) of the Act would be a valid notice if the jurisdictional Assessing Officer records the reasons for reopening the assessment as contemplated under subsection (2) of section 148 and thereafter the same officer namely the jurisdictional Assessing Officer issues the notice under section 148(1) of the Act . In the facts of the present case, while the reasons for reopening the assessment have been recorded by the jurisdictional Assessing Officer viz . the Deputy Commissioner of IncomePage tax, Circle2, Jamnagar, the impugned notice under section 148(1) of the Act has been issued by the Income Tax Officer, Ward 2(2), Jamnagar who had no jurisdiction over the petitioner, and hence, such notice was bad on the count of having been issued by an officer who had not authority in law to issue such notice . As a necessary corollary it follows that no proceedings could have been taken under section 147 of the Act in pursuance of such invalid notice . In the aforesaid premises, the impugned notice under section 148(1) of the Act as well as all the proceedings taken pursuant thereto cannot be sustained . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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