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TMI Blog2024 (1) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... were considered and verified by the Assessing Officer and ultimately, the Assessing Officer made the addition of Rs. 2,05,29,102/- under section 43CA of the Act by holding as under:- "4. Addition of Rs. /- u/s. 43CA of the I.T. Act. 1961. 4.1. The assessee is in the business of development of Real estate and developing one SRA project consisting of three buildings i.e. Evershine Cosmic( Jogeshwari Road, Oshiwara, C.T.S. No. 567,567-1, to 144), Gaurav Legend, Oshiwara, Off Infinity Mall, C.T. S. NO. 581 to 585) and slum Buildings. The Evershine Cosmic has been completed till 17th Floor and further construction upto 21st floor completed. Building Saurav Legend RCC work completed upto 8th floor. PTC building is also under construction and completed till 8th floor. The assessee has completed construction of 6 rehabilitation building of ground + 7th floor and possession has already given to unit holders. During the year, it has sold various flats of Building Evershine Cosmic & Gaurang Legend and registered the sale agreements made with buyers with Stamp Duty Authority. The details of sale of flats are reflected in the AIR information on the PAN database of the assessee. The copies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 102/- by holding as under:- "07. I have perused the facts of the appellant case, the order of the Assessing Officer and the submission mace by the appellant during the appellate proceedings. As per facts of the present case, the assessee firm is engaged in the business of real estate development and during the relevant previous years, sold three from its residential project Evershine Cosmic and Gaurav Legend and all flats were sold at the value less than Fair Market Value (FMV)/DLC as on the date of registration of the sale deed. However, according to the appellant, for all these flats, the assessee firm had entered into agreement to sell prior to the start of the relevant previous year i.e., 01/04/2013. It was further argued that the provisions of Section 43CA of the Act were not made applicable for the sales undertaken by the appellant firm, as those entire sale deeds were registered during the relevant year. 7.1 However, the agreement to sell wherein all the terms and conditions with respect to the sale were finalized, was entered before the relevant previous year and consideration was received through account payee cheque. 7.2 The appellant, had, although, relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the full value of the consideration: (2) The provisions of sub-section (2) ant: sub-section (3) of section 5UC shall, so far as may be, apply in relation to determination of the value adopted or assessed or assessable under sub-section (1). (3) Where the date of agreement fixing the value, of consideration for transfer of the asset and the date of registration of such transfer of asset are not the same, the value referred to in sub-section (1) may be taken as the value assessable by any authority of a State Government for the purpose of payment of stamp duty in ' respect of such transfer on the date of the agreement. (4) The provisions of sub-section (3) shall apply only in a case where the amount of consideration or a part thereof has been received by way of an account payee cheque or an account payee bank draft or by use of electronic clearing system through a bank account 93[or through such other electronic mode as may be prescribed94] on or before the date of agreement for transfer of the asset. 7.5 As per sub-section (3) and (4) of section 43CA, the benefit of prior agreement is granted if the consideration is received at the time of agreement other than cash. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration to the claim of the Assessee and observe that the additional ground raised by the Assessee is a jurisdictional ground / legal ground which goes to the root of the case and emanates from the orders passed by the authorities below as well as documents available on record, hence, we deem it appropriate to allow the Assessee to raise the said additional ground. 6. Coming to the merit of additional ground, the Assessee has claimed that the CBDT vide Instruction No.01/2011 (F.No.187/12/2010-IT(A-1)/dated 31/01/2011 (as reproduced herein below) specified the monetary limits for making the assessments. Order-Instruction - Income Tax References have been received by the Board from the large number of taxpayers especially from the mofussil areas, that the existing monetary limits for assigning cases to Deputy Commissioners / Assistant Commissioners and ITOs is causing hardship to the taxpayers. INSTRUCTION NO: 1/2011 [F.NO. 187/12/2010-IT(A-IT(A-1)] DATED 31-1-2011 References have been received by tine Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for-assigning cases to ITOs and DCs/ACs is causing hardship to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of Ashok Devichand Jain Vs UOI & Ors Writ Petition No.3489 of 2029 decided on 08/03/2022: 2. The primary ground that has been raised is that the Income Tax Officer who issued the notice under section 148 of the Act, had no jurisdiction to issue such notice. According to Petitioner as per instruction No. 1/2011 dated 31st January, 2011 issued by the Central Board of Direct Taxes, where income declared/returned by any Non-Corporate assessee is up to Rs. 20 lakhs, then the jurisdiction will be of ITO and where the income declared returned by a Non Corporate assessee is above Rs. 20 lakhs, the jurisdiction will be of DC/AC. 3. Petitioner has filed return of income of about Rs. 64,34,663/-and therefore, the jurisdiction will be that of DC/AC and not ITO. Mr. Jain submitted that since notice under section 148 of the Act has been issued by ITO, and not by DC/AC that is by a person who did not have any jurisdiction over Petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice. 4. We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Devichand Jain (supra), quashed the assessment order in the identical facts. 7.5 We further observe that Hon'ble co-ordinate bench of the Tribunal at Kolkata in the case of Bhagyalaxmi Conclave Pvt Ltd vs DCIT (ITA No.519/KOL/2019 & Ors decided on 03/02/2011) also dealt with the notice issued under section 143(2) of the Act and ultimately held the notice issued by the DCIT as defective and consequently quashed the assessment by holding that the assessing authority, who passed the order under section 143(3) of the Act i.e. DCIT-13(1), Kolkata has not issued notice under section 143(2) of the Act and also for the reason that the jurisdiction of these cases lies with the ITO and not the DCIT. 7.6 It is trite to say that as per dictum of the Hon'ble Apex Court in the case of ACIT VS Hotel Blue Moon (2010) 321 ITR 362 (SC), the notice under section 143(2) of the Act is mandatory for making the assessment and therefore the same is required to be issued by the Assessing Officer, who has jurisdiction and is empowered to issue the notice under section 143(2) of the Act and to make the assessment. Hence, considering the peculiar facts and circumstances in totality specific to the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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