TMI Blog2022 (12) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... Ward-2(1), Bhilai, i.e., jurisdictional officer had not issued any notice u/s.148 of the Act but had acted upon that as was issued by the ITO, Ward1(1), Raipur i.e. a non-jurisdictional officer on 23.03.2015. It is not the case of the department that the jurisdiction over the case of the assessee was transferred from ITO, Ward-1(1), Raipur to ITO, Ward-2(1), Bhilai vide an order passed by the appropriate authority u/s.127 of the Act. Also, no material had been placed before me by the Ld. DR which would reveal that as the ITO, Ward-1(1), Raipur at the time of issuance of notice u/s.148 dated 23.03.2015 was duly vested with the jurisdiction over the case of the assessee, which, thereafter, had validly been transferred to the ITO, Ward-2(1), Bhilai, therefore, as per Section 129 of the Act the assessment framed by the latter on the basis of notice u/s.148 dated 23.03.2015 issued by the ITO, Ward-1(1), Raipur could not be faulted with. On the basis of the aforesaid facts, as stated by Mr. R.B Doshi, the Ld. AR, and, rightly so, the framing of the impugned assessment u/ss.143(3)/147 dated 25.03.2016 by the ITO, Ward-2(1), Bhilai on the basis of notice issued u/s. 148 dated 23.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e u/s.148 of the Act dated 23.03.2015 was issued by the ITO, Ward-1(1), Raipur after obtaining the approval of the Jt. CIT, Range-1, Raipur. The case record of the assessee was thereafter transferred by the ITO, Ward1(1), Raipur to ITO, Ward-2(1), Bhilai. As the assessee had failed to file his return of income in compliance to the aforesaid notice u/s.148 of the Act dated 23.03.2015, therefore, the ITO, Ward-2(1), Bhilai issued notice u/s.142(1) dated 08.07.2015 calling upon him to file his return of income in compliance to the aforesaid notice. However, as the assessee still failed to file his return of income, therefore, the A.O once again vide his notice u/s.142(1) dated 19.06.2015 called upon him to file his return of income in compliance to the notice that was issued u/s.148 of the Act. In absence of any compliance on the part of the assessee who failed to come forth with any return of income u/s.148 of the Act, the A.O issued a show cause notice (SCN) u/s.144 dated 08.12.2015, therein, calling upon him to explain as to why best judgment assessment may not be framed in his case. After receiving the aforesaid show cause notice issued u/s.144 of the Act the assessee filed his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined and was liable to be struck down on the said count itself. It was averred by the Ld. AR that as the assessment framed u/ss.143(3)/147 dated 25.03.2016 had been framed by the ITO, Ward-2(1), Bhilai, i.e., the jurisdictional officer not on the basis of any notice u/s.148 of the Act issued by him but on the basis of that issued by the ITO, Ward-1(1), Raipur on 23.03.2015, therefore, the impugned assessment could not be sustained for want of valid assumption of jurisdiction on his part. In order to fortify his aforesaid claim that jurisdiction over the case of the assessee was vested with ITO, Ward-2(1), Bhilai, it was submitted by the Ld. AR that the assessee is both residing and carrying on his business as that of a general commission agent at Durg and was in no way connected with Raipur. The Ld. AR in order to buttress his aforesaid claim had drawn support from the fact that the address mentioned on the notice u/s.148 dated 23.03.2015 was the residential address of the assessee at Durg i.e. H No.75, Hospital Ward No.22, Parchri Para, Durg-491 001, Chhattisgarh Page 8 of APB. Also, it was stated by the Ld. AR that the aforesaid residential address of the assessee was found men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberated at length on the contentions advanced by the ld. authorized representatives of both the parties which hinges around two aspects viz. (i) the validity of jurisdiction that was assumed by the A.O for framing of assessment u/ss.143(3)/147 dated 25.03.2016; and (ii) the sustainability of the addition in the backdrop of the merits of the case. As the Ld. AR has assailed the validity of jurisdiction that was assumed by the A.O for framing of the assessment by the ITO, Ward-2(1), Bhilai vide order u/ss.143(3)/147 of the Act dated 25.03.2016, therefore, I shall first deal with the same. 10. Admittedly, it is a matter of fact borne from record that the assessee who is engaged in the business of a general commission agent is a resident of Durg, viz. H No.75, Hospital Ward No.22, Parchri Para, Durg-491 001, Chhattisgarh (as mentioned in the body of notice u/s.148 dated 23.03.2015). The fact that the assessee is a resident of district Durg is also fortified on a perusal of the respective purchase/sale agreements dated 01.10.2007 on the basis of which his case was reopened u/s.147 of the Act, Page 10-15 of APB. In order to dispel any doubt as regards the address that was provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice u/s.148 dated 23.03.2015. Subsequently, the ITO, Ward- 1(1), Raipur had transferred the case record of the assessee on 12.05.2015 to ITO, Ward-2(1), Bhilai. The ITO, Ward-2(1), Bhilai had, thereafter, on the basis of notice u/s.148 dated 23.03.2015 (supra) proceeded with and framed the assessment vide his order u/ss.143(3)/147 dated 25.03.2016. Ostensibly, the ITO, Ward-2(1), Bhilai, i.e., jurisdictional officer had not issued any notice u/s.148 of the Act but had acted upon that as was issued by the ITO, Ward1(1), Raipur i.e. a non-jurisdictional officer on 23.03.2015. At this stage, I may herein observe that it is not the case of the department that the jurisdiction over the case of the assessee was transferred from ITO, Ward-1(1), Raipur to ITO, Ward-2(1), Bhilai vide an order passed by the appropriate authority u/s.127 of the Act. Also, no material had been placed before me by the Ld. DR which would reveal that as the ITO, Ward-1(1), Raipur at the time of issuance of notice u/s.148 dated 23.03.2015 was duly vested with the jurisdiction over the case of the assessee, which, thereafter, had validly been transferred to the ITO, Ward-2(1), Bhilai, therefore, as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of such notice issued by the non-jurisdictional A.O. Also, a similar view had been taken by the Hon ble High Court of Allahabad in the case of Pr. Commissioner of Income Tax-II Vs. Mohd. Rizwan, Prop. M/s. M.R Garments Moulviganj, Lucknow, ITA No. 100 of 2015 dated 30.03.2017. In the case before the Hon ble High Court, notice u/s.148 was issued by the ITO-(IV)(1), Lucknow who at the relevant point of time had no jurisdiction over the case of the assessee, as the same was already transferred to ITO-V(2), Lucknow. Thereafter, as the ITO-V(2), Lucknow proceeded with and framed the assessment without issuing any notice u/s.148 of the Act, therefore, the Hon ble High Court treating the notice u/s 148 issued by the ITO-(IV)(1), Lucknow as invalid upheld the quashing of the assessment by the Tribunal for want of valid assumption of jurisdiction by the jurisdictional A.O., i.e, ITO-(IV)(1), Lucknow. Apart from that, a similar view had earlier been taken by the Hon ble High Court of Allahabad in the case of MI Builders (P) Ltd. (2014) 349 ITR 271 (Allahabad). It was observed by the Hon ble High Court that as the jurisdiction of the A.O was transferred before issuance of notice u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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