TMI Blog2020 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ), passed u/s. 250 of the Income Tax Act, 1961 (the Act ), dt. 18/07/2019 for Assessment Year 2015-16. 2. As the issues arising in both these appeals are common, they are heard together and disposed off by way of this common order. 3. In both these appeals the assessee has raised a common additional ground of appeal, which reads as follows:- 1. For that, in the facts and circumstances of the instant case, the Ld. Commissioner of Income Tax (Appeals)-6, Kolkata acted unlawfully in not appreciating that the conditions precedent for framing the assessment order u/s 143(3) of the Income Tax Act, 1961 was not complied with and/or fulfilled by the Ld. Assistant Commissioner of Income Tax, Circle-23(1), Hooghly in the present case and the assessment order so framed is absolutely ab initio void, ultra vires and null in law. 4. The ld. Counsel for the assessee submitted that this is a legal ground challenging the jurisdiction of the Assessing Officer and that all the facts are on record and hence the same may be admitted as it is a pure legal ground. The ld. D/R could not dispute the fact that this is a legal issue. Under these circumstances, we admit this legal ground rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the ITO, Ward-23(4), Hooghly. The ITO,Ward-23(4), Hooghly, has issued a notice u/s 143(2) of the Act on 29/07/2016 in the case of Smt. Dipti Sahana and on 01/08/2016 in the case of Shri Sanat Sahana, as the jurisdiction lied with him. But the assessment in question in both the cases was completed by the ACIT, Circle-23(1), Hooghly. The issue is whether the ACIT, Circle-23(1), Hooghly, has jurisdiction to passed the assessment order in question or not. 7. The ld. D/R could not produce any order or circular to prove that there was change in jurisdiction of the officers. Despite being given opportunity, he could not demonstrate that the ACIT, Circle-23(1), Hooghly, had jurisdiction. 8. This Bench of the Tribunal in the case of K.A. Wires Ltd. vs. ITO in ITA No. 1149/Kol/2019, order dt. 22/01/2020, while adjudicating and identical issue on jurisdiction, held as follows:- 6. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 7. The address of the assessee as given in the return of income and as given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub-section (1). (2) The directions of the Board under sub-section (1) may authorise any other income-tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income- tax authorities who are subordinate to it. (3) In issuing the directions or orders referred to in sub-sections (1) and (2), the Board or other income-tax authority authorised by it may have regard to anyone or more of the following criteria, namely:- (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and (d) cases or classes of cases. (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein, - (a) authorise any 1 [Principal Director General or] Director General or 14[Principal Director or] Director to perform such functions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification. 8.2. From a plain reading of the above, it is clear that u/s 120(1) of the Act, the Income Tax Authorities will have to exercise Acts only in accordance with the jurisdiction conferred by the Board. U/s 120(3) of the Act, such powers can be conferred by the Board having regard to the territorial area, class of person, income or class of the cases. The CBDT under sec. 120(5) of the Act, can also confer jurisdiction on two or more Assessing Officers (concurrent jurisdiction). The CBDT can also by notification confer powers on the authorities for the purpose of assessment as may be notified in the notification. This shows that concurrent jurisdiction can be exercised only when CBDT confers such jurisdiction u/s 120(4) and 120(5) of the Act. 8.3. In accordance with the powers conferred u/s. 120 (1) and 120(2) of the Act, the CBDT issued notification on no. 191/2002(F.No.187/9/2002-ITA-1 dated 30.7.2002) whereby the CBDT conferred the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or subsection (2) of section 115WE or sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144 to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (c) where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under subsection (1) of section 153A or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income for the last few years. The notice under sec. 143(2), however, was issued in this case by ITO, Ward 33(1), Kol who has not been vested with the jurisdiction over the assessee company by CBDT. 8.9. Under the scheme of e filing of return, the assessee has to fill PAN on the return. It has to also fill its address and some of the details are picked-up by the assesse. If the Department's system fails to correctly transfer the return to the jurisdictional Assessing Officer and transfer the same to a Assessing Officer though who has no jurisdiction as per the CBDT's notification, such mistake cannot confer the jurisdiction on such an Assessing Officer. Jurisdiction can be conferred only by notification u/ s 120(1) and 120(2) of the Act only. 8.10. The Ld DR submitted that there was transfer order of the assessee s case for the assessment year in question, from ITO Ward 33(1) to ITO Ward 8(3). There can be a valid transfer order from ITO Ward 33(1) only if he was vested with the jurisdiction over the assessee. As he was never vested with the jurisdiction either by the notification of the CBDT or by any order of the Commissioner of Income tax earlier to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, Kol dated 28.7.2006 wherein the Tribunal considered the notification dated 30.7.2002 and held that after issue of the notification the Assessing Officer who was earlier vested the jurisdiction lost the jurisdiction and even though the order of the CIT(A) was received by him at the time when he was having jurisdiction, yet the Assessing Officer who has been divested of the jurisdiction on 30.7.2002 cannot file the appeal after the said date. In that case even the authorization was also granted for filing the appeal by the CITXIII, Kolkata who lost the jurisdiction after the notification. In that case after the dismissal of the appeal of the Department by the Tribunal on the aforesaid ground of jurisdiction, the Revenue filed an appeal before the Hon'ble High Court but the same was dismissed. The Revenue thereafter came up with condonation petition and a filed fresh appeal before the ITAT but the same was also dismissed in ITA No. 1768 and 1769/Kol/2006, B-Bench on 15.9.2014. The Revenue filed an appeal before the Hon'ble High Court which was dismissed with the following observations: The appeal carried by theACIT-39 to the Appellate Tribunal was dismissed as not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or completion of assessment by such authority is illegal. 8.20. In the case of P.V. Doshi Vs CIT the Gujarat High Court held that the jurisdictional issue can be taken up at any stage of the proceedings. 8.21. In the case of Rajmandir Estates (386 ITR 162) the Hon'ble Calcutta High Court held that if the Commissioner Income tax issuing notice u/ s. 263 has lost the Jurisdiction then the notice and order issued by him is a nullity. 8.22. The Lucknow Bench of the ITAT in ITA No. 89 and 90/LKW /2015 dated 16.4.2015 in the case of Md Rizwan held that notice u/ s 143(2) issued by non-jurisdictional Assessing Officer is a nullity. 8.23. Same view have been taken a number of other cases some of which are under:- 1. A.L. Ahuja v/s. DCIT SOT (2003) page 475 at page 480 If at the time of issue of notice u/s. 158BC the Assessing Officer had no jurisdiction the assessment is illegal. 2. Income Tax officer vs. Sarkar Co. 1954 AIR 613 Calcutta. If at the time of filing, of the appeal the ITO had no seisin over he assessee s case and case is transferred by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limited (Civil Appeal No. 8132 of 2019 dated 18.10.2019). This judgement is not on the issue of jurisdiction of the Assessing Officer. In that case, there is no dispute that the assessing officer issuing notice had jurisdiction over the assessee. In that case the selection of the return for scrutiny was generated under automated system of the Income Tax Department which picks up the address of the assessee from the PAN database. The notice u/ s 143(2) was sent at the assessee's address available as per the PAN database. Intimation for further hearing and three more notices were sent at the same address as available in the PAN. Finally, the assessee appeared before the tax authority but challenged the notices saying that these notices were not served upon him and that he never received notice u/s 143(2) of the Act and that further subsequent notices served and received by the assessee were beyond the period of limitation prescribed under the law. The assessee submitted that he changed his address and the new address was mentioned in the return of income filed for subsequent years. The assessee also submitted that he filed Form No.18 with Registrar of Companies, regarding chang ..... 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