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TMI Blog2020 (6) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer of the assessee) on the ground that the address given in the return came under his jurisdiction, when special jurisdiction had been vested in Circles/Wards of Range 38 for assessing the cases of contractors and where the assessee was regularly assessed in the past and even the designation of the Assessing Officer generated by the Central Processing Centre in case of e- filed return of the assessee was "Circle 38(2), C.R. bid. New Delhi" 2. That the learned CIT(A) erred in sustaining the addition of Rs. 25,1 1,087 out. of Rs. 42,16,362 on account Wages and Salaries paid by the assessee to the manpower deployed with its various customers, on a presumptive basis, without finding any specific payment to be non genuine or not for the purpose of business of the assessee. 2.1 That the learned CIT(A) erred in sustaining the addition of Rs. 25,1 1,087 out of Rs. 42,16,362 on account Wages and Salaries paid by the assessee to the. manpower deployed with its various customers, by wrongly calculating the rate of Gross Profit. 2.2 That the learned CIT(A) erred in sustaining the addition of Rs. 25,1 1,087 out of Rs. 42,16,362 on account Wages and Salaries paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the validity of the notice issued on the ground that it was the moral duty of the assessee to bring the fact of jurisdictional Assessing Officer within the limitation period for issue of notice under section 143(2) of the Act and failure in doing so, it was the fault on the part of the assessee. The Ld. CIT(A) partly allowed the appeal. Aggrieved with the finding of the Ld. CIT(A), the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. In the ground Nos. 1 to 1.2, the assessee has challenged validity of the notice issued under section 143(2) of the Act by the non-jurisdictional Assessing Officer. In ground nos. 2 to 3.2, the assessee has challenged additions on merit. 3.1 Before us, the learned counsel of the assessee filed a paperbook containing pages 1 to 49 and referred to various pages to support the ground No. 1 to 1.2. The learned counsel contended that the assessee is a labour contactor and was engaged in supply of the manpower. He submitted that per master notification dated 03/07/2001 issued by the Central Board of Direct Taxes (CBDT) and subsequent order by the Joint Commissioner of the Income-tax dated 01/08/2001, the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(2) of the Act. According to the Ld. CIT(A), this conduct of the assessee was neither correct technically nor morally. The finding of the Ld. CIT(A) on the issue in dispute is reproduced as under: "5.3 I have considered the additional ground of appeal filed on 27/01/2015 questioning the jurisdiction of the A.O to issue notice under section 143(2) by Deputy Commissioner of Income Tax, Circle 21(1) and subsequent order passed under section 143(3) by Income Tax Officer, Ward 38(2), New Delhi. I have gone through the assessment records and following facts have emerged; 1. The appellant had filed the return of income for A.Y:2010-11 on 15/10/2010 through e-filing. 2. That the address given by the appellant in the return of income was 239, 2nd Floor, Vardhman Premium Mall, Outer Ring Road, Pitampura, New Delhi-110034. 3. As per the territorial jurisdiction, the A.O i.e Deputy Commissioner of Income Tax, Circle 21(1), New Delhi issued notice under section 143(2) and dispatched with proper evidence of service to the address given by the appellant in the return of income requiring him to attend to his office on 12/09/2011 to file details in support of the return filed by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take the plea that he did not get the notice. The notices sent on the address never returned back hence it is presumed that the appellant had got the notices. Strangely, the appellant did not respond to the notices till after 31/03/2012, when it was quite evident to him that last date for issue of notice under section 143(2) had elapsed on 31/03/3012. It is only on 08/08/2012 that the appellant had sent the letter submitting that he is filing regular return in Ward 38(2), New Delhi. The Deputy Commissioner of Income Tax 21(1), had promptly transferred the assessment record to Income Tax Officer Ward, 38(2). The appellant had never raised the validity of notices under section 143(2)/142(1) sent earlier to him. Rather he had attended the assessment proceedings till the order is passed by the Income Tax Officer Ward 38(2). Even in the original appeal filed under section 250 of the Act, the appellant had not raised this issue. It is only subsequently i.e on 25/01/2015 that the appellant had filed additional ground of appeal challenging the validity of order passed under section 143(3) of the Act. I have considered the entire gamut of the facts and circumstances. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Government of India, Central Board of Direct Taxes, notifications number 679 dated 29lh July, 1974; 1031 dated 12lh August, 1975; 862 dated 26th March, 1975; 548(E) dated 9* July, 1990; S.O. 1062(E) dated 28th November, 2000 and 19/2001 dated I8lh January, 2001, except as respects things done or omitted to be done before such supersession, the Central Board of Direct Taxes, hereby,- (a) directs that the Commissioners of Income-tax specified in column (2) of the Schedule-I hereto annexed, having their headquarters at the places specified in the corresponding entries in column (3) of the said Schedule-I, shall exercise the powers and perform the functions in respect of such cases or classes of cases specified in the corresponding entries in column (6) of the said Schedule-I, or of such persons or classes of persons specified in the corresponding entries in column (5) of the said Schcdule-1, in such territorial areas specified in the corresponding entries in column (4) of the said Schedule-I, and in respect of all incomes or classes of income; (b) directs that the Commissioners of Income-tax specified in column (2) of the Schedule-11 hereto annexed, having their headquarters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mn (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 (a) of column (4); (b) persons referred to in item (a) of column (6), being other than companies deriving income from business or profession and whoso, principal place of business is within the territorial area mentioned in item (a) of column (4); c) persons referred to in item (a) of column (6), being companies registered under the Companies Act, 1956, and having registered office in the area mentioned In item (a) of column (4). (a) Persons whose principal source of income is from legal, medical, engineering or archueclural profession or the profession of accountancy or technical consultancy or interior decoration or any other profession as is notified by the Board in Official Gazette under sub section (1) of section 44AA of the Income-tax Act, 1961 (b) persons having income business of contractor ship, including supply of labour for carrying out any work, b) Municipal Wards of Municipal Corporation of Delhi; (i) Qusab Pura (No 113); (ii) Paharganj (No.108); (iii) Sadar Bazar (No. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding supply of the labour for carrying out any work in that territorial area of the National Capital Territory of Delhi to the Joint Commissioner of Income-tax, Range-38, New Delhi. The assessment in the case of the assessee for assessment year 2007- 08, was completed by the Assistant Commissioner of Income Tax, Circle 38(1), New Delhi, who falls under the jurisdiction of Range -38, New Delhi. A copy of the assessment order is placed on page 12 to 14 of the paper-book. The assessment for assessment year 2009-10 has also been completed by the Income Tax Officer, Ward - 38(2), New Delhi, who also falls under the jurisdiction of Range-38, New Delhi. In view of the notification and assessment orders passed by the Income Tax Department, it is undisputed that during relevant period jurisdiction 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer not having jurisdiction over the assessee. The notice under section 143(2) by the correct jurisdiction Assessing Officer has been issued on 30/08/2012, whereas the limitation for issue of the notice under section 143(2) of the Act expired on 30/09/2011 and therefore, this notice being beyond the period of limitation, it is not a valid notice. 3.10 The contention of the Revenue is that the assessee did not bring the fact of correct jurisdiction before the expiry of the limitation period and, therefore, this mistake is curable under section 292BB of the Act. We do not agree with the contention of the Revenue, because, the fault of mistake of issue notice on 01/09/2011 by the non-jurisdictional officer lied with the Department. There is no law, which 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate, New Delhi-110002 Madam/sir, Sub: Transfer of scrutiny assessment records in the case of M/s Sunworld Infrastructure Pvt. Ltd-reg. ** ** The above mentioned case was selected for scrutiny under CASS for A.Y. 2012-13 & 2013-14 notices u/s. 143(2) was issued at the address available as per PAN data. On verification it is noticed that the jurisdiction of the vests with your office. Accordingly, case record is transferred herewith for necessary action at your end. Yours faithfully, (LOKESHA) Income-tax Officer. Ward-6( 1)(1), Bangalore" 3.12 In the facts of the case, the Hon'ble High Court held that the purported notice under section 143(2) dated 10/09/2003 was without jurisdiction. 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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