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2020 (11) TMI 310

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.... of Hon'ble I.T.A.T. in the case of AAA Paper Marketing Ltd. vide order dated 27/04/2018, prayed that the issues raised by the assessee in its application under Rule 27 of the I.T.A.T. Rules may be admitted and adjudicated first before taking up the appeal filed by the Revenue. Learned counsel for the assessee, in support of his arguments that the said application under Rule 27 can be admitted and adjudicated at I.T.A.T. level also, relied on a number of case laws besides its reliance on the case laws of Lucknow Bench of the Tribunal in the case of AAA Paper Marketing Ltd. Our specific attention was invited to the cases listed in the paper book at pages 7 and 8. Therefore, in view of the judicial precedents, Learned counsel for the assessee argued that the application, moved by the assessee under Rule 27 of the I.T.A.T. Rules, may be admitted and adjudicated. 3. Learned D. R., on the other hand, vehemently argued against acceptance of application under Rule 27 of the I.T.A.T. Rules and submitted that the issues raised in application do not arise either from the order of the Assessing Officer or learned CIT(A) and none of the authorities below have decided the issue against the....

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....675/Bang/2012, dated 08/01/2016 (vi) Great Wall Marketing (P) Ltd., I.T.A. No.660/Kol/2011, dated 03/02/2016 (vii) CIT vs. Edward Deventer (successors) Pvt. Ltd. 123 ITR 200 (Del) (viii) Deep Chand Kothari vs. CIT 171 ITR 381 (Raj) (ix) R. B. Construction, I.T.A. No.1537/Ahd/2011, datedl 10/04/2015 (x) IME International Pvt. Ltd., I.T.A. No.1873/Deol/2012, dated 08/01/2016 (xi) Thandi Ram Jai Narain, I.T.A. No.1289/Del/2013, dated 27/06/2017 (xii) Jolly Fantasy World Ltd. 373 ITR 530 Besides the above noted cases, Learned counsel for the assessee has also invited our attention to an order passed by Lucknow Bench of the Tribunal vide order dated 28/04/2017 in the case of AAA Paper Marketing Ltd. We find that in this order the Tribunal has considered the arguments raised by Learned D. R. and after considering the arguments and after relying on the case law of Jubiliant Enpro Pvt. Ltd. (supra), has decided the issue in favour of the assessee by holding as under: "2. We have heard argument of both the sides and carefully considered the relevant material available on record of the Tribunal. Ld. counsel of the assessee-respondent submitted that the assessee want to invok....

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.... Vs Nalwa Sons Investment Ltd. (2010) 327 ITR 543 (Del) to propel this submission. 14.2. Before proceeding with the matter on merit, it would be apposite to first decide about the maintainability or otherwise of such application. Rule 27ofITA T Rules, 1963 with its marginal note reads as under- 'Respondent may support order on grounds decided against him. The respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him.' 14.3. The effect of this rule is that a respondent has been entitled to support the order on the ground which has been decided against him. The underlying idea and the spirit of Rule 27 is to arm a respondent, in an appeal filed by the plaintiff, with an option to contest unfavorable decision of the CIT(A) on the aspect(s) of an issue, the final decision on which Issue has been delivered in his favor. Take an instance of first appellate authority deciding the legal issue of reopening of an assessment against the assessee but deleting the addition on merits in favor of the assessee. When the Revenue files appeal against this order before the tribunal, it will naturally assail the findin....

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.... him. In other words, the challenge can be made by a respondent only in respect of a ground decided against him' In such circumstances, a question arises that if there is no decision at all of the CIT(A) on a particular aspect, which is otherwise germane to the overall issue decided in favor of the respondent, can the respondent espouse such aspect under rule 27 in an appeal filed by the plaintiff. If we go by the literal interpretation of the Rule, then the answer is in negative that unless the ground is not decided against' the respondent, he cannot take recourse to this provision. However, it is of paramount importance to keep in mind the fundamental object of enshrining rule 27, being giving an opportunity to the respondent to support the impugned order in an appeal filed by the plaintiff A pragmatic approach on consideration of the object of such Rule, in our considered opinion, necessitates the adoption of liberal interpretation that when a particular issue is decided in favor of the respondent and the plaintiff has come up in appeal against such decision on the issue, then all the relevant aspects having bearing on the overall issue, even though not specifically deci....

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....ee is a jurisdictional issue therefore, he will be taking up the same first and invited our attention to the fact that the assessee had e-filed return of income on 26/09/2014 declaring income of Rs. 11,11,750/- and the case was selected for scrutiny u/s 143(2) vide notice issued by DCIT, Circle-4, Kanpur and DCIT-6, Kanpur on the same date i.e. 03/09/2015 and in this respect our attention was invited to pages 40 to 42 of the paper book where the fact of having filed the return for Rs. 11,11,750/- along with the two notices issued by DCIT, Circle-4, Kanpur and DCIT-6, Kanpur were placed. Learned counsel for the assessee submitted that as per assessment order dated 29/12/2016 read with transfer memo dated 16/05/2016, the present case was transferred from DCIT-6, Kanpur to Income Tax Officer -6(1), Kanpur on the ground of monetary limit vide Pr. CIT-2, Kanpur order dated 28/04/2016 and in this respect our attention was invited to pages 31 to 32 of the paper book. It was submitted that when the first notice u/s 143(2) was issued on 03/09/2015, Revenue was aware of the fact that as per monetary limit for ITR of Rs. 11,11,750/- only concerned and competent Assessing Officer to issue noti....

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....BDT, Learned counsel for the assessee argued that the competent person to issue notice u/s 143(2) was Income Tax Officer-6, Kanpur who had passed the assessment order as the income of the assessee was less than Rs. 20 lacs whereas the notice u/s 143(2) has been issued by DCIT and that too by two DCITs from Circle-4 & 6 and, therefore, it was argued that the assessment in this case is bad in law and is void ab initio and the appeal filed by the Revenue needs to be dismissed. At the asking of Bench regarding judgment of Hon'ble Supreme Court in the case of I-Ven Interactive Ltd, the Learned counsel for the assessee stated that in that judgment Hon'ble Supreme Court has held that notice issued to assessee u/s 143(2) at the address mentioned in the PAN database is a valid notice. Learned counsel for the assessee submitted that this judgment is not applicable in the case of the assessee as in this case the Hon'ble Supreme Court has decided the issue of service of notice u/s 143(2) at the address mentioned in PAN database of the assessee whereas in the present case the issue is not of the service of notice but the issue of notice issued by the Assessing Officer not having jur....

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....income declaring income of Rs. 11,11,750/- which is less than Rs. 20 lacs, the jurisdictional Assessing Officer was Income Tax Officer-6, Kanpur who was mandatorily required to issue notice u/s 143(2) and which he did not do. Therefore, it was prayed that since the statutory notice u/s 143(2) was not issued by jurisdictional Income Tax Officer, the assessment order is bad in law. As regards the reliance placed by Learned D. R. on sections 119, 120 and 127 are concerned, Learned counsel for the assessee submitted that section 119 in fact goes in favour of assessee which empowers the CBDT to issue instructions/orders etc. to income tax authorities and which are binding on Department therefore, Instruction No. 1/2011 issued by CBDT are binding instructions. Regarding section 120, the Learned counsel for the assessee submitted that this section deals with jurisdiction of income tax authorities which again says that income tax authorities will perform all the functions as may be assigned to them by CBDT. As regards section 127, Learned counsel for the assessee submitted that this section does not apply to the assessee as there is no order passed under that section. 9. We have heard the....

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....dice to the generality of the foregoing power,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of [sections [115P, 115S], [115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK]] [139,] 143, 144, 147, 148, 154, 155, [158BFA] [sub-section (1A) of section 201, sections 210, 211, 234A, 234B, 234C, [234E],] [270A,] 271 [,271C, 271CA] and 273 or otherwise), general or special orders in respect of [any class of incomes or fringe benefits] or class of cases, setting forth directions or instructions (not being prejudicial to assessees) as to the guidelines, principles or procedures to be followed by other income-tax authorities in the work relating to assessment or collection of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information; (b) the Board may, if it considers it desirable or expedie....

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....l or any of these authorities. The reliance placed by Learned D. R. on this section is also not helpful to Revenue as this section only binds the authorities to act in accordance with directions of CBDT and therefore, only the jurisdictional Assessing Officer as per instruction No.1/2011 should have issued the notice u/s 143(2) of the Act whereas the notices have been issued by non jurisdictional Assessing Officers. 9.3 Now coming to provisions of section 127 relating to transfer of cases. This is an important section and for the sake of completeness, the provisions of section 127 are reproduced below: "[SECTION 127. Power to transfer cases. (1) The [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdictio....

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.... this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year.]" The analysis of above provisions clearly demonstrate that Principal Commissioner or Chief Commissioner can pass an order u/s 127 of the Act for transfer of assessment records from one Assessing Officer to another Assessing Officer and earlier assessment proceedings undertaken by earlier Assessing Officer will be deemed to be part of assessment proceedings continued by new Assessing Officer but the requirement of section is the passing of order u/s 127 of the Act which in this case has not been done. In the present case instead of order having been passed by Commissioner, the transfer memo has been prepared by DCIT-6 and records have been transferred to jurisdictional Assessing Officer. A copy of transfer memo is placed in paper book at page 31. The transfer memo does not talk about any order u/s 127 of the Act and instead talks about the reason for transferring the case which reads out as under:....

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....bove instructions shall be Ahmedabad, Banagalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011." The above CBDT instruction clearly states that for corporate assessees having income upto Rs. 20 lac, the assessment is to be done by Income Tax Officer. In the present case, admittedly the assessee is a corporate assessee and its returned income is less than Rs. 20 lac as the assessee had filed return for an income of Rs. 11,11,750/-. Therefore, as per the above instructions, the jurisdictional Assessing Officer was Income Tax Officer and not DCIT or ACIT who had issued noticed u/s 143(2) of the Act. It is also an admitted fact that jurisdictional Assessing Officer which is Income Tax Officer, Ward-6, Kanpur had not issued any notice u/s 143(2) of the Act. Therefore, in the case before us, the following final facts emerge: (i) The assessee is a corporate assessee. (ii) The assessee filed return of income declaring income of Rs. 11,11,750/-. (iii) The jurisdictional Assessing Officer was Income Tax Officer, Ward-6, Kanpur. (as per CBDT instructi....

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....ncome-tax authorities "as it may deem fit for proper administration of this Act". Such authorities and all other persons employed in execution of this Act are bound to observe and follow such orders, instructions and directions of the Central Board of Direct Taxes. The proviso to sub-section (1) of Section 119 recognizes two exceptions to this power. The first exception is that the CBDT cannot require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner. The second is with regard to interference with the discretion of the Commissioner of (Appeals) in exercise of his appellate functions. Sub-section (2) of Section 119 provides for the exercise of power in certain special cases and enables the CBDT, if it considers it necessary or expedient so to do for the purpose of proper and efficient management of the work of assessment and collection of revenue, to issue general or special orders in respect of any class of incomes or class of cases, setting forth directions or instructions as to the guidelines, principles or procedures to be followed by other income-tax authorities in the discharge of their work relating to assessmen....

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....of six months from the end of the financial year in which the return is furnished)." On a perusal of the foregoing provision, it is evident that the provisions of this section are mandatory in nature. If the Assessing Officer considers it necessary or expedient to verify the correctness and completeness of the return then he is bound to serve a notice under this sub section on the assessee requiring him, on a specified date, either to attend at the AO's office or to produce or cause to be produced any evidence on which the assessee desire to rely in support of his return. The above view gets fortified by the decision of the Hon'ble Madras High Court in the case of COMMISSIONER OF INCOME-TAX v. GITSONS ENGINEERING CO. reported in [2015] 370 ITR 87, wherein it is held that, "the word "shall" employed in section 143(2) of the Income tax Act, 1961, contemplates that the Assessing Officer should issue notice to the assessee so as to ensure that the assessee has not understated income or has not computed excessive loss or has not under paid the tax in any manner. It is therefore, clear that when the Assessing Officer considers it necessary and expedient to ensure that tax is ....

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....ithin the same locality. Therefore the validity of the assessment framed by the AO cannot be challenged on the ground of non-issuance of notice by the ITO. The ld DR also referred to the provisions of Section 129 of the Act which allows the succeeding income tax authority to continue the proceedings from the stage at which the proceeding was left by his predecessor. The ld DR vehemently supported the order of lower authorities. 8. We have heard rival submissions and gone through facts and circumstances of the case. We have also perused the assessment records. The crux of the issue in the case is that the notice under section 143(2) of the Act was not issued by the ITO in terms of the instruction No. 1/2011 [F.No. 187/12/2010-IT(A-I)], dated 31.1.2011. As per the instruction the notice was to be issued by the ITO but the notice was issued by the ACIT. Therefore in view of above the notice issued by the ACIT is invalid and consequently the assessment framed by the ITO becomes void. Now the issue before us arises so as to whether the notice issued by the ACIT u/s 143(2) of the Act is without jurisdiction in terms of the aforesaid instruction. In this connection we consider it fit ....

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....ncial Services Pvt. Limited Vs ITO in ITA No. 1426/Kol/2011. We consider it fit to incorporate the relevant portion of the Tribunal order which is as under :- "5. We find that the Hon'ble Chhatishgarh High Court in the case of DCIT Vs. Sunita Finlease Ltd. (2011) 330 ITR 491 (Chh) has considered the same Instruction No. 9/2004 dated 20.09.2004 which are applicable in the present case also and quash the selection of scrutiny and completion of assessment by holding as invalid. Hon'ble Chattishgarh High Court in Sunita Finlease Ltd.'s case (supra) has considered section 119 of the Act by stating that Section 119 of the Act, empowers the Central Board of Direct Taxes to issue orders, instructions or directions for the proper administration of the Act or for such other purposes specified in sub-section (2) of the section. Hon'ble High Court further held that such an order, instruction or direction cannot override the provisions of the Act. Direction by issuing instructions to the officers for the process of selection of cases for scrutiny for returns for a particular financial year and allowing time of three months for completion of the same cannot be considered to o....

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....hich can be properly categorized as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities." The facts and circumstances in the present case are that the selection of scrutiny in this case is also completed beyond the prescribed period as prescribed in Instruction No. 9/2004 dated 20.09.2004. The assessee's case was selected for scrutiny first time on 18.10.2004, as per copy of order sheet entry, and notice was issued fixing the hearing on 18.10.2004 itself. As per Instruction No. 9/2004 dated 20.09.2004, the process of selection of cases for scrutiny for returns filed up to 31.03.2004, in the present case assessee filed its return of income on 01.12.2003 must be completed by 15.10.2004. The factual position as noted by CIT(A) in his appellate order that notice u/s. 143(2) is dated 10.10.2004, is not supported by Ld. Sr. DR at the time of hearing rather assessee contested that this finding of fact is erroneous and actual case was selected by issuing notice as on 18.10.2004. Even the basis of recording this fact is only from the assessment order wherein it is mentioned that notice u/s. 143(2) is dated 10.....

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....he case of Sukumar Ch. Sahoo vs. ACIT in I.T.A. No.2073.Kol/2016, vide order dated 27/09/2017, has decided the similar issue by holding as under: "4. Brief facts of the case are that the assessee is an individual who filed his return of income for the year under consideration wherein he declared total income to the tune of Rs. 50,28,040/-. The Ld. AR for the assessee submitted that as per the CBDT Instruction No. 1/11 (F. No. 187/12/2010-IT(AT) dated 31.01.2011 CBDT fixed new monetary limit in Mufassil areas, according to which income above Rs. 15 lacs for 'non corporate assessee' and Rs. 20 lacs for 'corporate returns' has to be assessed by ACIT/DCIT. Thus, according to Ld. Counsel, since Haldia is a Muffasil area and instructions given by the CBDT is binding on the officers of the Department and since the assessee has declared more than Rs. 50 lacs as his returned income, then the scrutiny assessment can be done only by the ACIT/DCIT and not by the ITO who does not have the jurisdiction to do so. For ready reference, Instruction No. 1/2011 is reproduced below: "INSTRUCTION NO. 1/2011 (F. NO. 187/12/2010-IT(A-1), DATED 31- 1-2011 References have been received by the Board fr....

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....ce of the ACIT, Circle-27, Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: i) The assessee had filed return of income declaring Rs. 50,28,040/-. The ITO issued notice under section 143(2) of the Act on 06.09.2013. ii) The ITO, Ward-1, Haldia taking note that the income returned was above Rs. 15 lacs transferred the case to ACIT, Circle-27, Haldia on 24.09.2014. iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia. 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of Rs. 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 Rs. 15 lacs; and if the returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above Rs. 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 jur....

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....at case also the notice u/s 143(2) was issued by non jurisdictional Assessing Officer and the assessment records were transferred by a transfer memo and assessment was made by jurisdictional Assessing Officer. The Hon'ble Tribunal held the assessment order bad in law by holding as under: "5. We have heard the rival parties and have gone through the material placed on record. It is undisputed fact that the assessment order dated 11.03.2016 has been passed by DCIT 2, Kanpur who had issued notice u/s 143(2) on 07.09.2015. The provisions relating to time limit for issue of statutory notice u/s 143(2) are contained in the provisions to Section 143(2) itself which provides that no notice under this section shall be served on the assessee after the expiry of six months from the end of financial year in which the return is furnished. 6. In the present case, the return of income was furnished on 30.09.2013. The financial year in which the return was filed expired on 31.03.2014 and therefore, last date for issue of notice was 30.09.2014. The statutory period for issuance of notice u/s 143(2) expired on 30.09.2014 and by 30.09.2014 the notice u/s 143(2), which was within the prescribe....

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....aid Designated Officer was supposed to furnish entire material to Competent A.O. for further action. 33. In the present case, notice under Section 148 was not issued by A.O. having jurisdiction over Assessee and instead it was issued by Designated Officer authorized to collect AIR information and make inquiry in this regard. No notice was issued under Section 148 admittedly by Jurisdictional A.O. 34. Section 148 clearly talks of issue of notice by A.O. Meaning thereby, A.O. having jurisdiction over Assessee. In fact, it is his satisfaction which is to be recorded for justifying reopening of assessment/reassessment proceedings as contemplated under Section 147 and recording of reasons for the same purpose is mandatory. The satisfaction of A.O. could not have been hired or be delegated to any other authority. 35. In Commissioner of Income Tax, Kerala Vs. Thayaballi Mulla Jeevaji Kapasi 1967 (66) ITR 147 (SC), Court held that notice under Section 148 cannot be regarded as mere procedural requirement. It is a condition precedent for initiation of proceeding for assessment. 36. In Y. Narayana Chetty and another Vs. Income Tax Officer, Nellore and others. 1959 (35) ITR 388 (SC), ....

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....tional A.O. before making assessment/reassessment and, therefore, proceedings of reassessment pursuant to notice issued under Section 148 by an incompetent Officer are void and ab initio. 45. When a notice under Section 147/148 issued is a jurisdictional step, it cannot be treated to be mere irregularity curable under Section 292BB. In fact, Section 292BB has no application to a case where no valid notice has been issued by Competent A.O. This is clear from a bare reading of Section 292BB of Act, 1961 which reads as under:" 292BB. Where an assessee has appeared in any proceedings or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act 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: Provided that nothing contained in this section shall apply where the assessee has raised such objectio....

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....eturn of Income pursuant to invalid notice would not render notice valid or validate subsequent proceedings which are vitiated in law for want of valid notice. 55. In Raza Textile Ltd. Vs. Income Tax Officer, Rampur (1973) 87 ITR 539 (SC), Court said that it is incomprehensible to think that a quasijudicial authority like A.O. can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. 56. If an order is passed by a judicial or quasijudicial authority having no jurisdiction, it is an obligation of Appellate Court to rectify the error and set aside order passed by authority or forum having no jurisdiction. This is what was held in State of Gujarat Vs. Rajesh Kumar Chimanlal Barot and another AIR 1996 SC 2664. 57. In view of above discussion, we have no manner of doubt to answer all the four questions against Revenue and in favour of Assessee." 11. As regards the applicability of section 292BB of the Act, we find that under similar facts and circumstances, the Hon'ble Kolkata Bench of the Tribunal in the case of Soma Roy vs. ACIT in I.T.A. No.462/Kol/2019, examined this issue and relying on the judgment of Hon'ble Supreme Court in....

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....was not issued by the jurisdictional Assessing Officer and therefore, the reliance placed by Learned D. R. on 292BB is of no help to Revenue. 11.2 As regards the judgment of Hon'ble Supreme Court in the case of IVen Interactive Limited (supra), we find that though this judgment was not relied upon by Learned D. R. but at the asking of the Bench, Learned counsel for the assessee had clarified that this judgment is not applicable to the facts and circumstances of the case and we also hold that this judgment is not applicable to the facts of the present case as in that case Hon'ble Supreme Court has held the validity of notice u/s 143(2) if the same was served at the address mentioned in the PAN database whereas in the case before us, there is no dispute about service of notice but the dispute is regarding the issue of notice by a non jurisdictional Assessing Officer. Therefore, we agree with the arguments of Learned counsel for the assessee that this judgment is not applicable to the present facts. Under similar facts and circumstances in the case of K. A. Wires Pvt. Ltd. in I.T.A. No.1149/Kol/2019, the Kolkata Bench of the Tribunal examined the judgment of Hon'ble Supr....

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....e intimated to the Registrar of Companies in the prescribed format i.e., Form 18 and after completing the said requirement, the assessee is required to approach the Department with the copy of the said document and then the assessee is required to make an application for change of address in the departmental database of the PAN. In the present case the assessee has failed to do so. This judgment is on the issue of service of notice. It is not an issue as to whether the Assessing Officer has jurisdiction over the assessee. As already stated, it is not a case of notice being issued by a non-jurisdictional Assessing Officer. It is therefore clear that the issue in the case before the Hon'ble Supreme Court was not with regard to the jurisdiction of the officer in issuing the notice but was with regard to the service of notice on the proper address. The said judgment therefore does not help the department on this issue of jurisdiction now before us. Jurisdiction has to be conferred u/s 120 of the Act. Any act by an authority without jurisdiction is ab-initio void. 8.28. In view of the above discussion, as the Assessing Officer who had jurisdiction over the assessee i.e., ITO Ward ....