TMI Blog2020 (6) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(3), NEW DELHI [ 2015 (3) TMI 572 - DELHI HIGH COURT] we hold that the notice dated 01/09/2011 issued by the CIT, Circle -37(1) was without jurisdiction and, thus, it was invalid and the notice dated 30/08/2012 issued by the ITO, Ward 38(2), New Delhi issued by the correct Jurisdiction Officer, was beyond the period of limitation and therefore, this was also invalid. Assessment order passed without acquiring the correct jurisdiction for a scrutiny by way of notice under section 143(2) is void ab initio and thus we quash the same. As we have already quashed, the assessment order we are not adjudicating on the issue raised on merit of the addition. - Decided in favour of assessee. - ITA No.1627/Del./2016 - - - Dated:- 24-2-2020 - Shri O.P. Kant, Accountant Member And Shri Kuldip Singh, Judicial Member For the Appellant : Shri J.S. Kochar, CA For the Respondent : Shri S.N. Meena, Sr. DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against order dated 27/01/2016 passed by the learned CIT(Appeals)-20, New Delhi [in short the Ld. CIT(A) ] for assessment year 2010-11 raising following grounds: 1. That the learned C1T(A) erred in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of deposit of ₹ 45,00,000 made by the assessee on the plea that the same had been filed towards the end of the appellate proceedings, despite the fact that such evidences were filed at the at the instance of C1T(A) himself, who required them to be filed long after the matter had been finally heard. 3.2 That at any rate, the learned CIT(A) erred in sustaining the addition of ₹ 45,00,000 made under Section 68 of the Act, when admittedly such amount was not found credited in the books maintained by the assessee. 2. Briefly stated facts of the case are that the assessee filed return of income electronically on 15/10/2010, declaring total income of ₹ 18,32,891/-. The case was selected for scrutiny assessment and notice under section 143(2) of the Income-tax Act, 1961 (in short the Act ) was issued on 01/09/2011 by the Deputy Commissioner of Income-tax, Circle 21(1), New Delhi ( DCIT ), which was served at the address of the assessee located at 239, Second Floor, Vardhman Mall, Outer Ring Road, Pritampura, Delhi-110034/-. Subsequently, the DCIT, issued show cause notice u/s 144 at the address located at 547/1, New Railway Road, Near Union Bank, Old Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electronically mentioning jurisdiction under Range 38, New Delhi. Thus, according to him, the jurisdiction of the assessee lies in Range- 38, New Delhi. The learned Counsel submitted that the notice under section 143(2) of the Act for the year under consideration could have been issued within six month from the end of the financial year i.e. 30/09/2011. He submitted that first notice under section 143(2) of the Act dated 01/09/2011 has been issued by the Deputy Commissioner of Income Tax, Circle - 21, New Delhi, which is not the jurisdictional Assessing Officer in the case of the assessee. He submitted that though case was transferred by the DCIT, Circle - 21, New Delhi subsequently to the correct jurisdiction and order was passed by the Assessing Officer having correct jurisdiction, however, no notice under section 143(2) has been issued by the jurisdictional Assessing Officer within the limitation period available as per the proviso to section 143(2) of the Act, and therefore, the assessment order passed is void ab initio and need to be quashed. 3.2 On the contrary, the learned DR relied on the order of the Ld. CIT(A) who has upheld the validity of the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sister on rent. And that Sh Manoj kumar is residing in Gurgaon and his office address is 547/1, New railway road, Near Union Bank, Gurgaon, Haryana. Thereafter, notice under section 143(2)/142(1) along with the questionnaire was issued at the Gurgaon address on 29/06/2012 requiring him to appear on 05/07/2012. No compliance was made. 6. That the appellant had chosen not to inform the department about the change of address. 7. Again a show cause was issued on 25/07/2012 requiring him to attend to the proceedings by 08/08/2012. In response to this show cause, the appellant had replied vide letter dated 08/08/2012 that his case is assessed in contractor s ward 38(2), CR Building, New Delhi and that he further requested to transfer the case to Income Tax Officer Ward 38(2) New Delhi. 8. Acting on the letter filed by the assessee, Deputy Commissioner of Income Tax, Circle 21(1) has transferred the file to Income Tax Officer Ward 38(2) who has issued notices under section 143(2)/142(1) on 30/08/2012. Assessee attended the proceedings. 9. That the appellant has never raised the issue of jurisdiction validity of the proceedings undertaken by the Income Tax Officer Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the assessee never challenged the validity of notices issued to him by Deputy Commissioner of Income Tax 21 (1) and rather attended the assessment proceedings till the order was passed under section 143(3). Therefore, even section 292BB of the Act is attracted in this case. The case laws cited by the appellant as reproduced in the previous para also is not of any help to the cause of the appellant as the facts and circumstances discussed here is quite distinguished from the facts of the cases cited in the judicial pronouncements relied upon by the appellant. In this particular case the assessee has not discharged his duty to inform the change of address to the authorities and that notices were indeed issued on the address given on the return of income. The premise is also occupied by the sister of the assessee and notices sent on the address have not returned back by the postal authorities. In view of foregone, the appellant s additional ground of appeal is dismissed as not tenable. 3.4 Before us, the learned Counsel has referred to the master notification SO 732(E) dated 03/07/2001 issued by the Central Board of Direct Taxes (CBDT). The said Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue orders in writing for the exercise of the powers and performance of the functions by the Joint Commissioners of Income-tax, who are subordinate to them, in respect of such cases or classes of cases specified in the corresponding entries in column (6) of the Schedule-I and Schedule-II of such persons or classes of persons specified in the corresponding entries in column (5) of the said Schedules, in such territorial areas specified in the corresponding entries in column (4) of the said Schedules, and in respect of all incomes or classes of income; (d) authorizes the Joint Commissioners of Income-tax referred to in clause(c) of this notification, to issue orders in writing for the exercise of the powers and performance of the functions by the Assessing Officers, who are subordinate to them, in respect of such specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, in respect of which such Joint Commissioners of Income-tax arc authorised by the Commissioner of Income-tax under clause(c) of this notification. Explanation.- For the purposes of this notification, - residing means,- (a) in the case of an ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Manakpura (No. 132); d) all cases of persons referred to in item (c) of column (6). being other than companies deriving income from sources other than income from business or profession and residing within the -territorial area mentioned in item (b) of column (4); (c) all eases of persons referred lo in item (c) of column (6). being other than companies deriving income from business or profession and whose principal place of business is within the territorial area mentioned in item (b) of column (4). (c) All cases of persons referred to in corresponding entries in items (d) and (e) of column (5). 34 Commissioner of Income-lax, Del hi-XIV Delhi National Capital Territory of Delhi Persons referred to in column (6), being other than companies deriving income from sources other than income from business or profession and residing within the territorial area mentioned in column (4); Persons being employees of (a) Central Government (b) Government of Notional Capital Territory (c) Hospitals situated withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion over the assessee being a labour contactor lied with Range-38, New Delhi. 3.6 The assessee filed return of income electronically mentioning the correct jurisdiction, however, the case was selected for scrutiny and first notice under section 143(2) of the Act for commencing scrutiny assessment was issued on 01/09/2011 by the Deputy Commissioner of Income, Circle -21(1), New Delhi. A copy of notice is placed on page 19 of the paper-book. This is also the admitted position that this notice has been issued by the Assessing Officer not having jurisdiction over the case. 3.7 The assessee did not make compliance of the above notice issued under section 143(2) of the Act and subsequent show cause notice under section 144 of the Act dated 25/07/2012 has been issued at another address. In response to this show-cause-notice, the assessee filed letter dated 08/08/2012 and submitted that correct jurisdiction over the assessee lied with ward 38(2), New Delhi. The case was, accordingly then transferred to Income Tax Officer, Ward -38(2), New Delhi, who issued the notice under section 143(2) on 30/08/2012, a copy of which is available on page 22 of the paper-book. Thereafter, subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich requires the assessee to intimate the correct jurisdiction to the Income Tax Department and it is the responsibility of the Department to ensure that notice has been issued in accordance with the law. This responsibility cannot be shifted to the assessee although the assessee intimated as soon as the show cause notice was received at address at Gurgaon. As far as section 292BB is concerned, objection as to service of notice ( not served upon the assessee, not served upon the assessee in time or served upon the assessee in improper manner) stands waved if the assessee has participated in the assessment proceeding. But in the instant case, as per the proviso to section 143(2) of the Act, no notice could have been served on the assessee after the expiry of the sixmonth from the end of the financial year in which return is filed. The relevant provision is reproduced as under: Provided that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. 3.11 The learned Counsel of the assessee before us has relied on the decision of the Hon ble Delhi High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction. The relevant finding of the Hon ble Delhi High Court is reproduced as under: 4. It s evident from the aforesaid letter that it is only the records of the case which were transferred and the case itself had been transferred, the same would have to be directed under Section 127 of the s id Act. No such order of transfer has been made and the above letter dated 16.12.2014 is indicative of the fact that the Bangalore Office of the Income Tax Department did not have junction in this case. 5. That being the position, the purported notice under Section 143(2) issued on 10.09.2013 was one without jurisdiction and cannot be regarded as a valid notice. The first notice, therefore, which was issued by an Officer having jurisdiction was on 24.12.2014. This was issued clearly beyond the period of limitation which has been prescribed, i.e., beyond 30.09.2013 in this case. As such, the impugned notice dated 24.12.2014 issued under Section 143(2) of said Act is barred by time. The same is quashed. 3.13 Thus, respectfully following the finding of the Hon ble Delhi High Court, we hold that the notice dated 01/09/2011 issued by the CIT, Circle -37(1) was without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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