TMI Blog2023 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... lid jurisdiction cannot be cured and it is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. Therefore the contention of DR regarding applicability of section 292BB also does not hold water in favour of the revenue. Thus impugned reassessment order u/s. 143(3)/147 is not validly sustainable in absence of a valid notice u/s. 148 by the Assessing Officer having jurisdiction over the assessee therefore the same deserves to be quashed being bad in law - Decided in favour of assessee. - ITA No. 1997/Del/2022 - - - Dated:- 31-5-2023 - Shri Chandra Mohan Garg, Judicial Member For the Assessee : Shri Ankit Gupta, Adv. For the Revenue : Shri Om Parkash, Sr. DR ORDER PER CHANDRA MOHAN GARG, J.M. This appeal has been filed against the order of CIT(A),NFAC dated 03.06.2022 for AY 2011-12. Condonation of delay of 22 days 2. The assessee has filed an application in both the appeals seeking condonation of delay of 22 days. The learned counsel submitted that the assessee company has fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 28 of the P/B; e) That, the assessee company has also moved an application for the request of migration of PAN. Number to DCIT/ ACIT, Circle -2, Muzaffarnagar vide application dated 24.08.2013 and also informed the DCIT, Circle Hardwar, during the assessment proceeding for Assessment Year 2012-13, that the jurisdiction of the assessee company. is with DCIT ACIT, Circle -2, Muzaffarnagar vide letter dated 24.11.2014 Page No.23 and 24 of the P/B; f) Thereafter, the DCIT, Circle-3(1), Hardwar has transferred the case to ITO, Ward- 2(2), Muzaffarnagar without any order passed U/s 127 of the Act, which itself proves, that, the assessee is always under the jurisdiction of the ACIT, Circle-2, Muzaffarnagar and regularly assessed under the ACIT, Circle-2, Muzaffarnagar, therefore, the notice issued Us 148 by the DCIT, Circle-3(1), Haridwar is beyond the his jurisdiction, hence, the notice issued Us 148 and initiation of proceedings Us 147 is illegal, bad in law and without jurisdiction. g) Moreover, the said objection raised by the assessee has been never disposed off and the action of the department, itself proves, that, the notice issued Us 148 and assumption of jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that impugned reassessment order dated 31.12.2018 u/s. 143(3)/147 of the Act has been passed by the ITO Ward 2(2) Muzaffarnagar, therefore such order cannot be held as invalid and being passed without having valid jurisdiction as the assessee himself in the letter dated 24.08.2013 informed the Assessing Officer i.e. DCIT, Circle 3(1), Hairdwar that his jurisdictional Assessing Officer is ITO Ward 2(2) Muzaffarnagar and immediately after receiving said letter he transferred the case to the jurisdictional Assessing Officer who passed the reassessment order therefore no allegation regarding validity of assuming of jurisdiction for passing reassessment order can be made. 8. On careful consideration of above submissions, first of all, from the copy of notice u/s. 148 of the Act, available at page 12 of the assessee paper book it is clear that the notice u/s. 148 of the Act, dated 30.03.2018 was issued by ACIT, Circle 3(1) Haridwar and on receipt of notice the assessee vide letter dated 24.04.2018 informed the said Assessing Officer that his jurisdictional Assessing Officer is ITO, Ward 2(2) Muzaffarnagar. On receipt of said application the Assessing Officer of Haridwar transferred th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), it was held, that, if notice issued is invalid or not properly served, any proceeding taken by A.O. to back assess, would be illegal and void. 37. A Constitution Bench, in Sardar Baldev Singh Vs. Commissioner of Income Tax, Delhi (1960) 40 ITR 605 (SC), a pari materia provision, i.e., Section 34 under old Indian Income Tax Act, 1922 (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2BB. 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 co-operated 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 objection before the completion of such assessment or reassessment. 46. The curability permitted under Section 292BB is with regard to service of notice upon Assessee and not with regard to competence of authority who has issued notice. 47. A similar question was considered in Commissioner of Income Tax, Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... think that a quasi-judicial 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 quasi-judicial 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. 10. Therefore under identical facts and circumstances of the present case respectfully following the proposition rendered by the Hon ble jurisdiction High Court of Allahabad in the case of PCIT vs. Mohd. Rizwan(supra)I have no hesitation to held that the Assessing Officer having jurisdiction over the assessee is only validly entitle to initiate reassessment proceeding u/s. 147 of the Act and to issue notice u/s. 148 of the Act and consequent thereof is eligible to pass reassessment order on conclusion of proceedings. Since in the present case the Assessing Officer w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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