TMI Blog2020 (1) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Learned Commissioner of Income Tax (Appeals) Durgapur, (hereinafter the ld.CIT(A) ), passed u/s. 250 of the Income Tax Act, 1961 (the Act ), dt. 25/01/2019, for the Assessment Year 2015-16. 2. The assessee is an individual and has filed her return of income for the Assessment Year 2015-16 on 31/10/2015, declaring total income of ₹ 18,35,410/-. The assessment was completed u/s 143(3) of the Act on 26/01/2017 determining total income of ₹ 31,05,410/- interalia making an addition of ₹ 12,70,000/-, on the ground that the cash deposits in the bank account were not explained. Hence these cash credits and added u/s 68 of the Act. Aggrieved the assessee carried the matter in appeal without success. 3. Further aggrieved the assessee is in appeal before me, disputing the addition made u/s 68 of the Act. 4. The assessee filed an additional ground of appeal. The application for admission of additional ground, reads as follows:- 1. That your appellant had preferred the instant appeal being aggrieved by the appellate order passed by the Ld, Commissioner of Income Tax (Appeals) Durgapur who was pleased to uphold the purported action of the Ld. Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction over the assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the findings of the lower authorities. The ld. Counsel for the assessee relied on certain case-law, which I would be referring to as and when necessary. 6. The ld. D/R, on the other hand, submitted that the concurrent jurisdiction vests with the ITO as well as the ACIT and hence the assessment cannot be annulled simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and the assessment was completed by the ACIT. He further submitted that the assessee did not object to the issue of notice before the jurisdictional Assessing Officer and even otherwise, Section 292BB of the Act, comes into play and the assessment cannot be annulled. On merits, he relied on the orders of the lower authorities. 7. I 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, I hold as follows:- 8. I find that there is no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of ₹ 50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto ₹ 15 lacs; and if the returned income is above ₹ 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above ₹ 15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 2014 when the ACIT issued statutory notice which was beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Authority is not dependent on date of accrual of cause of action but on date when it is initiated - Held, yes - Whether once a particular jurisdiction is created, same must be prospective and cannot be retrospective and it has to be interpreted having regard to manner in which it has been sought to be created - Held, yes Assessee 9.3. The Hon ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), held as follows:- 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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