TMI Blog2022 (12) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the ITO-1(3), Raipur, i.e., an A.O who at the time of issuance of the aforesaid notice lacked inherent jurisdiction over the case of the assessee, therefore, the assessment so framed cannot be sustained and is liable to be quashed. Accordingly, quash the assessment framed by the ITO-1(1), Raipur vide his order passed u/s.143(3) r.w.s. 147 for want of valid assumption of jurisdiction on his part. Decided in favour of assessee. - ITA No. 84/RPR/2022 - - - Dated:- 29-11-2022 - SHRI RAVISH SOOD , JUDICIAL MEMBER Assessee by : Shri Sunil Kumar Agrawal Smt. Laxmi Sharma , CAs Revenue by : Shri G.N Singh , Sr. DR ORDER PER RAVISH SOOD, JM The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 14.03.2022, which in turn arises from the order passed by the A.O under Sec. 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short the Act ) dated 30.12.2018 for the assessment year 2011-12. The assessee has assailed the impugned order on the following grounds of appeal before us: 1. On the facts circumstances of the case and in law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee by raising the aforesaid additional ground of appeal has assailed the validity of the jurisdiction that was assumed by the ITO-1(1), Raipur for framing the assessment u/s.143(3) r.w.s. 147, dated 30.12.2018, which being a purely legal issue would not require looking any further beyond the facts available on record, therefore, I have no hesitation in admitting the same. The aforesaid view that where an additional ground of appeal involving purely a question of law requiring no further verification of facts is raised before the Tribunal, though for the first time, then, the same merits admission is supported by the judgment of the Hon ble Supreme Court in the case of National Thermal Power Company Ltd. Vs. CIT (1998) 229 ITR 383 (SC). 6. As the assessee has assailed before me the validity of the assessment framed by the A.O u/s. 143(3) r.w.s. 147 of the Act, dated 30.12.2018, therefore, I shall first deal with the same. 7. At the time of hearing of the appeal, it was submitted by the Ld. Authorized Representative (for short AR ) for the assessee that as the ITO-1(1), Raipur had framed the impugned assessment u/s.143(3) r.w.s. 147, dated 30.12.2018 in absence of any valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m business or procession, and other than those assessable by the DCIT/ACIT-1(1), Raipur and whose principal place of business was within the territorial area of Tehsil- Abhanpur. 7.1 It was submitted by the Ld. AR that as the assessee firm was carrying on its business of running a rice mill at 123, Jhanki, Abhanpur, Dist. Raipur , therefore, the jurisdiction over its case w.e.f 15.11.2014 was beyond doubt vested with the ITO-1(1), Raipur. It was submitted by the Ld. AR that the fact that the ITO-1(1), Raipur was vested with jurisdiction over the case of the assessee could safely be gathered from the fact that the assessment u/s.143(3) r.w.s. 147, dated 30.12.2018 was framed by him. On the basis of the aforesaid facts, it was claimed by the Ld. AR that as pursuant to the Notification No.1/2014-15, dated 15.11.2014 as the jurisdiction over the case of the assessee at the time of issuance of notice u/s.148 of the Act, dated 25.03.2018 was vested with the ITO-1(1), Raipur, therefore, the assessment so framed by him on the basis of notice u/s.148 of the Act, dated 25.03.2018 issued by the ITO-1(3), Raipur, Page 2 of APB could not be sustained and was liable to be quashed. It was ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct borne from record that the ITO-1(1), Raipur, i.e., the jurisdictional A.O had not issued any notice u/s.148 of the Act prior to framing of the impugned assessment. 8. Per contra, it was submitted by the Ld. Departmental Representative (for short DR ) that as the assessee on receipt of notice u/s.148, dated 25.03.2018 from the ITO-1(3), Raipur had not called in question his jurisdiction within the stipulated time period of one month from the date of receipt of the said notice, therefore, as per the mandate of Section 124(3)(b) of the Act he was precluded from challenging the same in the course of the present proceedings. The Ld. D.R in support of his aforesaid contention had relied on the judgment of the Hon ble High Court of Delhi in the case of Abhishek Jain Vs. ITO, Ward-55(1), New Delhi (2018) 94 taxmann.com 355 (Delhi) and that of the Hon ble High Court of Allahabad in the case of Shivaaditiya Jems and Jewellery Private Limited Vs. ITO-2(1) and Ors 2022 (9) TMI 89 (Allahabad). It was, thus, the claim of the Ld. DR that as the ITO-1(1), Raipur had validly assumed jurisdiction and framed the assessment vide his order passed u/s.143(3) r.w.s. 147 of the Act, dated 30.12.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merges and calls for my indulgence is as to whether the assessment order passed by the A.O u/s. 143(3) r.w.s 147, dated 30.12.2018 on the basis of notice u/s.148, dated 25.03.2018 issued by the ITO-1(3), Raipur, i.e., a non jurisdictional Officer can be sustained? 11. I find that involving identical facts a similar had come up before the Hon ble High Court of Bombay in the case of Ashok Devichand Jain Vs. UOI in W.P. No.3489 of 2019, dated 08.03.2022. In the case before the Hon ble High Court as the notice u/s.148, dated 30.03.2019 was issued by the ITO, Ward 12(3)(1), Mumbai, i.e., a non-jurisdictional Officer, therefore, the High Court on a writ petition filed by the assessee assailing the validity of the jurisdiction that was assumed by the A.O for reopening of its case on the basis of the aforesaid impugned notice, quashed the notice issued u/s.148 of the Act, 30.03.2019 for the reason that the same was issued by an A.O who at the relevant point of time had no jurisdiction over the assessee-petitioner. Also, I find that a similar view had been taken by the Hon ble High Court of Bombay in the case of in the case of Pavan Morarka Vs. ACIT-2, (2022) 136 taxmann.com 2 (Bombay). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act, dated 25.03.2018 issued by the ITO-1(3), Raipur ,i.e., a non jurisdictional A.O being devoid and bereft of any of force of law cannot be sustained and is liable to be vacated on the said count itself. 13. We shall now deal with the rejoinder of the ld. D.R to the challenge thrown by the assessee s counsel as regards the validity of the jurisdiction assumed by the ITO-1(1), Raipur for framing the assessment vide his order passed u/s.143(3) r.w.s. 147, dated 30.12.2018 on the basis of notice u/s.148 of the Act, dated 25.03.2018 issued by the ITO-1(3), Raipur, i.e., a non jurisdictional A.O. Controverting the aforesaid claim of the assessee s counsel, it was averred by the ld. D.R that now when the assessee on receipt of notice u/s.148 of the Act, dated 25.03.2018 from the ITO-1(3), Raipur had as per the mandate of Sec. 124(3) of the Act not called in question the jurisdiction of the ITO-1(3), Raipur within the stipulated time period of one month from the date of receipt of such notice, therefore, he was precluded from assailing the same in the course of the present proceedings. 14. Apropos the contention of the department that now when the assessee as per the mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly, on the basis of our aforesaid observations, I am of the considered view that as the Income-Tax Officer, Ward-1(3), Raipur was at the time of issuing notice u/s.148, dated 25.03.2018 not having jurisdiction over the case of the assessee, and thus, did not fall within the meaning of Assessing Officer as defined in Section 2(7A) of the Act, therefore, no obligation was cast upon the assessee to have called in question the assumption of jurisdiction by him to issue the said notice. 16. In so far the reliance placed by the Ld. DR on the judgment of the Hon ble High Court of Allahabad in the case of Shivaaditiya Gems and Jewellery Private Limited Vs. ITO-2(1) and Ors. 2022 (9) TMI 89 (Allahabad) and that of the Hon ble High Court of Delhi in the case of Abhishek Jain Vs. ITO, Ward-55(1), New Delhi (2018) 94 taxmann.com 355 (Delhi) is concerned, the same in my considered view being distinguishable on facts will not further the case of the department. I, say so, by referring to the facts involved in the respective cases, as under: (A) Shivaaditiya Gems and Jewellery Private Limited Vs. ITO-2(1) and Ors. 2022 (9) TMI 89 (Allahabad HC.):- 17. In the case before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e validity of jurisdiction assumed by the A.O was not maintainable. 19. Contrary to the facts involved in the aforesaid case relied upon by the department, I may herein observe that in the present case the ITO-1(3), Raipur who had issued notice u/s.148 dated 25.03.2018 was at the time of issuance of the said notice not vested with any jurisdiction over the case of the assessee. In sum and substance, as the ITO-1(3), Raipur in the present case before me at the time of issuing the notice u/s 148, dated 25.03.2018 was undeniably a nonjurisdictional officer, therefore, he as observed by me at length hereinabove could not have been brought within the meaning of Assessing Officer as defined in Section 2(7A) of the Act, which would have otherwise cast an obligation upon the assessee to have called in question his jurisdiction as per the mandate of Section 124(3) of the Act on receipt of notice u/s.148 of the Act, dated 25.03.2018. 20. Accordingly, as the facts involved in the case before me are distinguishable as against those in the case of Shivaaditiya Gems and Jewellery Private Limited Vs. ITO-2(1) and Ors. (supra), therefore, the reliance placed by the ld. D.R on the said judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year in question, i.e, A.Y.2009-10 with the ITO, Ward-36(1), Delhi. On the basis of his aforesaid claim, the assessee assailed before the Hon ble High Court the validity of the notice issued u/s.148 of the Act, dated 18.02.2016 that was issued by the ITO, Ward-1(1), Noida. 23. It was observed by the Hon ble High Court, viz. (i). that the assessee-petitioner had accepted that he was holding SB account with ICICI Bank Ltd, Sector 27, Branch Noida, Uttar Pradesh with the communication address, viz. A-32, Sector-5, Noida-201 301 , i.e., a factory where he was working; (ii). that the assessee had also furnished a copy of employees Identity card and a letter from the employer confirming his aforesaid Noida address; and (iii). that the KYC form of the assessee with the bank mentioned the address of the assesseepetitioner as A-32, Sector-5, Noida . Considering the aforesaid facts, it was observed by the Hon ble High Court that it cannot be held that the ITO, Ward-1(1), Noida per-se lacked jurisdiction over the case of the assessee, albeit he had concurrent jurisdiction with the ITO, Ward 36(1)/58, Delhi. On the basis of the aforesaid facts, the Hon ble High Court observing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 27. On the basis of my aforesaid deliberations, I am of the considered view that as the ITO-1(1), Raipur had framed the impugned assessment u/s.143(3) r.w.s. 147 of the Act, dated 30.12.2018 on the basis of a notice u/s.148 of the Act, dated 25.03.2018 issued by the ITO-1(3), Raipur, i.e., an A.O who at the time of issuance of the aforesaid notice lacked inherent jurisdiction over the case of the assessee, therefore, the assessment so framed cannot be sustained and is liable to be quashed. Accordingly, I quash the assessment framed by the ITO-1(1), Raipur vide his order passed u/s.143(3) r.w.s. 147 of the Act, dated 30.12.2018 for want of valid assumption of jurisdiction on his part. 28. As I have quashed the assessment framed by the A.O for want of valid assumption of jurisdiction, therefore, I refrain from adverting to and therein adjudicating the other grounds that have been raised by the assessee as regards the sustainability of the addition on the merits of the case, which, thus, are left open. 29. In the result, appeal of the assessee is allowed in terms of the aforesaid observations. Order pronounced in open court on 29th day of November, 2022. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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