TMI Blog2015 (1) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... partment : Shri. Y. P. Srivastava, D.R. For the Assessee : Shri. K. R. Rastogi, Advocate ORDER PER SUNIL KUMAR YADAV: These appeals are preferred by the Revenue against the respective order of the ld. CIT(A), inter alia, on the following grounds:- GROUNDS IN I.T.A. No. 756/LKW/2011: 1. The CIT(A) has erred in law and on facts of the case is not appreciating that the assessee voluntarily filed his return of income at Kashipur for A.Y. 2007-08 giving a local residential address and therefore, the jurisdiction was with ITO, Kashipur 2. The CIT(A) has erred in law and on acts and failed to appreciate that the assessee's representative complied with the notice u/s!48 and asked for the reasons and on the subsequent date of hearing he has stated that the return filed earlier may be treated as return filed u/s!48. Further, he has not challenged/objected to the AO's jurisdiction, as the provisions of section 292BB of the I.T. Act, before the completion of assessment. 3. The CIT(A) has erred in law and on facts in failing to appreciate that an order u/s!27 was passed after completion of the assessment by the CIT, Haldwani transferring the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t giving correct legal advice and information about the case. GROUNDS IN C.O. No. 02/LKW/2012: 1. The Ld. C.I.T. (A)-II, LKO. did not appreciated that Ld. A. O. made the addition of Rs. 141068-00 being disallowance of Depreciation, inspite of the fact, Net Profit from Contract Work has been shown at Rs.382576-00 out of Gross Receipts of Rs.3852648/-. 2. The Ld. C.I.T. (A)-II, LKO. did not appreciated that Ld. A. O. erred on facts and in law in making an addition of Rs. 108560-00 as Unsecured Loan. 3. The Ld. C.I.T. (A)-II, LKO. did not appreciated that Ld. A. O. erred on facts and in law in making addition of Rs.4108952-00 as Sundry Creditors. 4. The Ld. C.I.T. (A)-II, LKO. did not appreciated that Ld. A. O. erred on facts and in law in making addition of Rs.514595-00 as Peak Cash Deposits in Bank, inspite of the fact, the deposits were made out of the withdrawals and funds received from Contract Work. 5. The Ld. C.I.T. (A)-II, LKO. did not appreciated that Ld. A. O. did not appreciated that there was a reasonable cause for not making the proper compliance, as appellant is residing at Lucknow and his C.A. had not giving correct legal advice and information ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent Officer is a condition precedent. When valid notice is not served upon the assessee, the assessment framed consequent thereto deserves to be annulled, as the same is not sustainable in the eyes of law. 8. Having given a thoughtful consideration to the rival submissions and from a careful perusal of the orders of the authorities below, we find that undisputedly the assessee has been filing returns of income with JCIT, Range IV, Lucknow and the ld. CIT(A) has observed in his order that returns of income for assessment years 2000-01 to 2006-07 were filed with JCIT, Range IV, Lucknow. Even for assessment year 2008-09, the return was filed with JCIT, Range IV, Lucknow and it was processed under section 143(1) of the Act by the Income Tax Officer-IV(3), Lucknow. The Income Tax Officer-III, Kashipur has issued notice under section 148 of the Act on the basis of the return incorrectly filed with him by the assessee, but before issuing notice to the assessee, the Assessing Officer should have verified from the PAN whether he has jurisdiction over the assessee, and if it I found that the return is not filed with the concerned Assessing Officer, the return filed with him should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 25.10.2004 showing income of Rs. 1,67,105/-. 9. Return of income for the assessment year 2006-2007 was filed with JCIT, Range-4, Lucknow on 31.07.2008 showing income of Rs. 2,37,600/- and was processed under section 143(1) of the Act and refund of Rs. 8,215/- was issued by Shri R.D. Shukla, ITOIV( 3), Lucknow. 10. Return of income for the assessment year 2008-2009 was filed with JCIT, Range-4, Lucknow on 23.10.2008 showing income of Rs. 2,37,600/- and was processed under section 143(1) of the Act on 10.05.2009 and refund of Rs. 15,590/- was issued by Shri Virendra Singh, ITO-IV(3), Lucknow. 4(4) It would appear from the facts narrated above that the jurisdiction of the assessee lies with Range -IV, Lucknow (Range- VI, Lucknow post change of jurisdiction). However, the notice under section 148 of the Act has been issued and served by affixture at Kashipur by the Income Tax Officer-3, Kashipur. Before, I examine the legality of assessment completed by the Income Tax Officer-3, Kashipur, it is imperative to examine the status of return of income for the impugned assessment year 2007-2008 which was filed by the appellant on 24.03.2008 at Kashipur showing total incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred from Pune to Jalandhar even though, the assessee has shifted his residence from Pune to Jalandhar. Similarly, Hon'ble Gauhati High Court in Naginmara Veneer and Saw Mill Pvt. Ltd. v. DCIT (Supra), relied on by the l.d. A.R. of the assessee, held that notice issued Under Section 148(1) by DCIT was invalid as he did not have jurisdiction to do so even though his ITO did have jurisdiction to issue such notice. 28. The argument of Learned D.R. that since the assessee has not objected to the assessment framed for the assessment year 2001- 02 and, therefore, ACIT. Range-IV. Lucknow can validly issue notice Under Section 148(1) is not sustainable in law. As discussed above, protection of the proceedings and assessment thereafter on account of failure of the assessee to object within the time allowed Under Section 124(3) is available to specific proceeding and not to every proceedings. Erroneous assumption of jurisdiction cannot, in general, be validated. Such validation is specific in Section 124(3). Secondly, principles of estoppel are not applicable to Income tax proceedings. What may be acceptable or held in one year or in one proceeding cannot be in general held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present assessee. Therefore, on this legal ground, assessment made by the AO, New Delhi, is void ab initio and without jurisdiction. We, therefore, cancel the assessment refer now to the decision of Hon'ble High Court of Kerala in the case of P.A. Ahammed Vs CIT (2006) 282 ITR 334 (Kerala) where it has been held as under: - 'IT authorities-transfer of case-jurisdiction of AO-Explanation to s. 127 clarifies that 'case' means the entire proceedings under the Act-When a transfer is effected the entire files, old as well as pending, and the returns filed get transferred to the new officer to whom the file is transferred-Contention of the petitioner that the earlier officer continues to retain jurisdiction to made assessments even after transfer of raid files to another officer has no merit-Two AOs cannot retain concurrent jurisdiction over the same assessee in any case. 4(6) The cases of the appellant for the earlier Assessment Years have been completed by AO having jurisdiction at Lucknow. The impugned assessment for Assessment Year 2007 -2008 has been completed by ITO-3, Kashipur without jurisdiction. I therefore find that the ITO-3, Kashipur has, complet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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