TMI Blog2019 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant. Ajay Kumar, D.R for the Respondent. ORDER 1. This is assessee's appeal against the order of the ld. CIT(A)-2, Lucknow, dated 29/8/2018, confirming the Assessing Officer's action in making the addition of ₹ 3.45 lakhs, comprising of ₹ 3.15 lakhs paid as stamp duty and ₹ 30,000/- paid in cash, on purchase of a residential property. The following are the grounds raised: 1. BECAUSE the CIT(A) has erred in law and on facts in holding that the Dy. Commissioner of Income-tax, Range-6, Lucknow (in short Dy. CIT ), was validly vested with jurisdiction of Assessing Officer in the case of the appellant and on that basis in upholding the validity of re-assessment order dated 11.02.2015. 2. BECAUSE there being no valid transfer of jurisdiction from Income-tax Officer-1(3), Lucknow to Dy. CIT , as per provisions of law, the reassessment order passed by the latter was without jurisdiction and consequently the re-assessment order deserved to be held as illegal. 3. BECAUSE even if it is held that the Dy. CIT was vested with the jurisdiction of Assessing Officer in the case of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2013 (APB:8); and that during the course of assessment proceedings, the assessee had submitted to the ITO-1(3) that he was a Director in M/s Surat Construction Pvt. Ltd., which was assessed in Range-6 and that accordingly, the jurisdiction in the case of the assessee was with ITO-6(3). A copy of the submission dated 22/8/2014, in this regard, is placed at page No.88 of the APB-I. Reference has been made to copy of A.O. Code list downloaded from NSDL Tax Information Network (TIN), showing particulars of jurisdiction of the Assessing Officers in Lucknow, APB:III pages 159 to 164, the relevant portion at APB-III, page 159, the third item, which is as under: Income Tax PAN Service Unit NSDL Technology, Trust Reach AO Code search for PAN Select Ward/circle /range / Commissioner Description Area Code Assessing Officer Type Range Code Assessing Officer Number DCIT-6, Lucknow-NEW (i) All company cases starting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the case was transferred by the ITO-1(3), Lucknow, to the DCIT, Range-6, Lucknow; that the DCIT, Range 6 continued the proceedings initiated by the ITO-1(3); and that as such, the reassessment order passed by the DCIT, Range-6 does not suffer from any infirmity on this count. 5. Heard. The ITO-1(3) issued notice under section 148 of the Act. The ITO-1(3) undisputedly did not have jurisdiction over the matter. The matter was transferred, on the assessee's request, to the DCIT, Range-6, who, admittedly, was the Assessing Officer having jurisdiction. The DCIT, Range-6 passed the reassessment order, without issuance of any notice, either under section 148, or under section 143(2) of the Act. Thus, the first question is whether the assessment made by the Assessing Officer after transfer of the case from the stage when another Officer had already issued notice under section 148, though he had no jurisdiction in the matter, and the transferee Assessing Officer, who was actually vested with jurisdiction over the matter, did not issue any fresh notice, can be said to be valid. 6. Section 148(1) of the Act reads as follows: (1) Before making the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdships (relevant paras) are as under: '17. The sole ground found favour with Tribunal is that notice under Section 148 of Act, 1961 was issued by ITO-IV(1), Lucknow who had no jurisdiction in the matter and after transfer of case, ITO. V(2) who had jurisdiction in the matter, proceeded to make assessment without issuing notice under Section 148 of Act, 1961 which was mandatory, being a jurisdictional step. Earlier notice issued by an authority having no jurisdiction would vitiate the entire proceedings as said notice issued by an incompetent Authority will not be a valid notice under section 148 of the Act. ** ** ** 33. Notice under Section 148 was not issued by A.O. having jurisdiction over Assessee and instead it was issued by Designated Officer authorized to collect AIR information and make inquiry in this regard No notice was issued under Section 148 admittedly by Jurisdictional A.O. 34. Section 148 clearly talks of issue of notice by A.O. Meaning thereby, A.O. having jurisdiction over Assessee. In fact, it is his satisfaction which is to be recorded for justifying reopening of assessment/reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served provisions contained in Section 148 of Act, 1961 with regard to escaped assessment must be construed strictly with regard to procedure prescribed for escaped assessment. 43. The reason for issuance of notice by Competent A.O. is quite obvious inasmuch as such notice could have been issued only when concerned A.O. has reason to believe that some income has escaped assessment and recomputation/reassessment is needed. Now such satisfaction can be of that A.O. only who has jurisdiction in the matter and not of any third party. 44. We, therefore, hold that in the present case, no valid notice under Section 148 was issued by Jurisdictional A.O. before making assessment/reassessment and, therefore, proceedings of reassessment pursuant to notice issued under Section 148 by an incompetent Officer are void and ab initio. 45. When a notice under Section 147/148 issued is a jurisdictional step, it cannot be treated to be mere irregularity curable under Section 292BB. In fact, Section 292BB has no application to a case where no valid notice has been issued by Competent A.O. This is clear from a bare reading of Section 292BB of Act, 1961 which reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the income is returned under an erroneous impression or misconception of law. 52. It is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. 53. Even if, it can be said that Assessee submitted to jurisdiction of A.O., law is that Assessee cannot confer jurisdiction on an authority who did not have the same and we find support from Commissioner of Income Tax v. Hari Raj Swarup and sons (1982) 138 ITR 462 (Alld.). 54. In Mir Iqbal Husain v. State of U.P. 1963 50 ITR 40 (SC), it was held that requirement of valid notice cannot be waived. The mere fact that Assessee filed Return of Income pursuant to invalid notice would not render notice valid or validate subsequent proceedings which are vitiated in law for want of valid notice. 55. In Raza Textile Ltd. v. Income Tax Officer, Rampur (1973) 87 ITR 539 (SC), Court said that it is incomprehensible to think that a quasi-judicial authority like A.O. can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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