TMI Blog2022 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per Manish Borad, Accountant Member: This appeal filed by the assessee pertaining to the Assessment Year (in short AY ) 2015-16 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the Act ) by ld. Commissioner of Income-tax (Appeals), Burdwan [in short ld. CIT(A) ] dated 07.05.2019 arising out of the assessment order framed u/s 143(3) of the Act dated 25.10.2017. 2. The assessee is in appeal before this Tribunal raising the following grounds: 1. FOR THAT on a true and proper interpretation of the scope of the provisions of s. 68 of the Income Tax Act, 1961, the Ld. Commissioner of Income Tax (Appeals)-Burdwan was absolutely in error in upholding the impugned addition of Rs. 10,89,000/- resorted to by the Ld. Income Tax Officer, Ward 1(1), Burdwan by failing to consider that no adverse evidence was adduced on record against the appellant and the purported adverse conclusion reached on that behalf is wholly arbitrary, unreasonable and perverse. 2. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-Burdwan was remiss in upholding the impugned addition in the sum of Rs. 10,89,000/-made by the Ld. Income Tax Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in the additional ground. 5. Ld. Counsel for the assessee submitted that the case of the assessee was selected for scrutiny through CASS and notices u/s 143(2) of the Act dated 20.09.2016 was issued by ITO, Ward-1(3), Burdwan and duly served upon the assessee. Further, the assessee appeared before the ld. AO on 29.09.2016. Thereafter, on 16.04.2017 directions were received by ld. AO for transferring the assessment records to ITO, Ward-1(1), Burdwan who had the jurisdiction over the assessee. Ld. Counsel for the assessee submitted that after the case was transferred to ITO, Ward-1(1), Burdwan there was no issuance of fresh notice u/s 143(2) of the Act and since no such notice has been issued, the impugned assessment proceedings are null and void. In support of this claim reliance was placed on the judgment of Hon ble High Court of Calcutta in the case of PCIT vs. Nopany Sons reported in [2022] 136 taxmann.com 414 (Calcutta) dated 04.02.2022. 6. On the other hand, ld. D/R contended that a valid notice u/s 143(2) was issued to the assessee for initiating the scrutiny proceedings and the assessee has participated in the assessment proceedings and the transfer of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law. 9. I observe that Hon ble Jurisdictional High Court in the case of Nopany Sons (supra) adjudicated the similar issue and has held as follows: 4. This appeal by the revenue filed under section 260A of the Income-tax Act, 1961, (the Act, in brevity) is directed against the order dated 20-7-2016 passed by the Income-tax Appellate Tribunal, C Bench, Kolkata (Tribunal) in ITA Nos.1621 1301/Kol/2011 for the assessment year 2007-08. The revenue has raised the following substantial question of law for our consideration. a. Whether on the facts and in the circumstances of the case the Learned Income-tax Appellate Tribunal, C Bench, Kolkata is illegally justified to hold that since notice under section 143(2) was not issued by the ITO - Ward 56(4), Kolkata, the assessment order passed by him is a nullity and without jurisdiction? 5. We have heard Mr. Mitra, learned senior standing counsel for the appellant and Mr. Ananda Sen, learned counsel assisted by Ms. Atasi Sarkar for the respondent/assessee. 6. The short issue which falls for consideration is whether the assessing officer, who had jurisdiction over the assessee at the relevant time had issued not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the time prescribed by the assessing officer, who had jurisdiction over the assessment file of the assessee at the relevant time. The Commissioner of Income-tax (Appeals)-XXXVII, Kolkata, (CIT(A)) did not agree with the contentions raised by the assessee that there is failure to comply with the mandatory statutory requirement. The CIT(A) opined that the assessing officer, who originally dealt with the e-return filed by the assessee had issued notice under section 143(2) of the Act. With regard to the merits of the matter, the CIT(A) held it in favour of the assessee. Therefore, the revenue was on appeal before the Tribunal and cross-objection was filed by the assessee questioning that portion of the order of the CIT(A) which held that there is no procedural irregularity committed by the assessing officer. The Tribunal considered the correctness of the finding of the CIT(A) and, on facts, found that both the assessing officers, namely, the assessing officer, who had jurisdiction over the assessee till 6-4-2009 and the assessing officer, who had jurisdiction post the said date had not issued notice under section 143(2) of the Act within the prescribed period of six months from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer/Income Tax Officer, Ward-3(1) had no jurisdiction over the assessee at the relevant time. The Tribunal to support its conclusion placed reliance in the case of CIT v. Mukesh Kumar Agrawal [2012] 25 taxmann.com 112/345 ITR 29 (Allahabad), wherein it was held that the assessing officer did not have jurisdiction to proceed further and make assessment since notice under section 143(2) of the Act was admittedly not issued. As in the case on hand, the revenue sought to take coverage under section 292BB of the Act which was rejected on the ground that the very foundation of the jurisdiction of the assessing officer was on the issuance of notice under section 143(2) of the Act and the same having been complied with, the revenue cannot take shelter under the provisions of section 292BB of the Act. 7. Thus, we are of the clear view that the Tribunal was right in rejecting the revenue's appeal. In the result, this appeal is dismissed and the substantial question of law is answered against the revenue. 10. From perusal of the above finding of the Hon ble Jurisdictional High Court, I find that the same is squarely applicable in favour of the assessee as in the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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