TMI Blog2016 (9) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and otherwise also, if ITO is not considered to be competent to frame an assessment where return is filed u/s 139 (1) declaring income in excess of a specified limit, then how the ITO can be competent to assesss similar return but filed after survey u/sc 142 (1). Hence, this contention is rejected. We hold that the assessment order passed by the ITO in the present case is not a valid assessment order and hence, we set aside the same and restore the matter back for framing a de-novo assessment by a competent Officer being ACIT or DCIT. In view of our decision, other grounds raised by the assessee in its appeal and the appeal of the revenue do not require any separate adjudication at this stage. Appeal of the assessee is allowed for sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome declared by the assessee is ₹ 127,50,050/- and as per the instructions of the Board, if the income declared by the assessee is more than ₹ 30.00 lakhs in Metro Cities, the assessment has to be famed by the DCIT or ACIT. But in the present case, the assessment order has been passed by the ITO and therefore, this order is not valid and should be quashed. At this juncture, it was pointed out by the Bench that even if it is held that the ITO was not competent to pass the impugned order, then the matter has to go back for framing de-novo assessment by DCIT or ACIT and in reply, ld. AR of the assessee had nothing to say. As against this, the ld. DR of the revenue placed reliance on the judgment of the Hon ble Delhi High Court rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the return of income is ₹ 30.00 lakhs and the date of assessment order passed by the AO is 17-10-2011 and these instruction are applicable with effect from 01-04-2011. Therefore, this is an admitted position that the impugned assessment order passed by the ITO is not valid. But we feel that the assessment order is irregular but not illegal and therefore, we feel that the matter should go back for de-novo assessment by a competent Officer being ACIT or DCIT. 5. Regarding the judgment of the Hon ble Delhi High Court rendered in the case of Kapil Jain (Supra) on which reliance has been placed by the revenue, we find that in that case, the case of the assessee was transferred to Circle-36(1) and such transfer order was passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled u/s 139 91) and it is not applicable where return is filed u/s 142 (1) after survey, We feel that there is no merit in this contention because there is no such restriction in the circular and otherwise also, if ITO is not considered to be competent to frame an assessment where return is filed u/s 139 (1) declaring income in excess of a specified limit, then how the ITO can be competent to assesss similar return but filed after survey u/sc 142 (1). Hence, this contention is rejected. 6. In view of our above discussion, we hold that the assessment order passed by the ITO in the present case is not a valid assessment order and hence, we set aside the same and restore the matter back for framing a de-novo assessment by a competent Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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