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TMI Blog2024 (2) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... that upon the facts and circumstances of the case the Ld. CIT(A) was not justified in enhancing the assessed income by Rs. 80,46,083/- b. For that upon the facts and circumstances of the case the Ld. CIT(A) was not justified in invoking power of enhancement u/s 251(1)(a) of the Act. c. For that upon the facts and circumstances of the case the Ld. CIT(A) was not justified in disallowing Rs. 53,50,000/- out of depreciation and Rs. 29,96,083/- out of interest for the house property relating to business. 3. The assessee also raised additional ground which is reproduced as under: 3. For that the notice issued u/s 143(2) and assessment completed by ACIT, Circle-3, Deoghar were without jurisdiction and therefore bad in law. 4. Tersely, we advert the fact of the case is that the assessee individual capacity filed the return. The assessment was completed by ACIT, Circle-3, Deoghar, Jharkhand whereas the assessee's residential place is in Gomti Nagar, Uttar Pradesh which is covered in database of Income tax. The grievance of the assessee is that the assessee has no territorial jurisdiction or any other jurisdiction u/s 127 before the Ld. AO, Deoghar, Jharkhand. So, the entire asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are as follows: 5. At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case2 the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was observed:- "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the following two questions of law were raised for consideration and decision of the High Court, they were: "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income-tax Act, 1961, within the prescribed time limit for the purpose of making the assessment under Section 143(3) of the Income-tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections 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. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: 7. The address of the assessee as given in the return of income and as given in the PAN Card, has not undergone any change for the previous assessment years, this year and for the subsequent assessment years.. A perusal of the copy of return of income field by the assessee for the Assessment Yea Year 2010-11, 2011-12, 12, 2012- 13 2012 & 2013-14, demonstrate that it was filed with the same address, before the ITO, Ward-8(3), Ward Kolkata. There is no dispute that it was only the ITO, Ward Ward-8(3), 8(3), Kolkata, who had and continued to have the jurisdiction over the assess assessee company. The PAN card also has the same address for all these years. T There is no change in address of the assessee company. 7.1. It is also not in dispute that the notice u/s 143(2) of the Act dt. 06/08/2013 was issued by the ITO Ward-33(1), 33(1), Kolkata. The assessee does not fall under the jurisdiction of this officer. A perusal of the order sheet entries demonstrate that, after issuance of notice u/s 143(2) of the Act on 06/08/2013, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made." A bare reading of the foregoing provisions reveals that an AO has been vested with the jurisdiction by virtue of directions or orders issued by the Board under sub-section (1) or sub-section (2) of Section 120 of the Act. The direction u/s 120(1) is given by the Board, for the exercise of powers and performance of the functions by all or any of the other Income Tax Authorities specified u/s 116 of the Act. As per sub-section (2) of Section 120 of the Act, the Board may delegate its power to Income Tax Authorities as specified in Section 116 for issuing the orders in writing, for exercise of powers and performance of function by all or any of the other income tax authorities who are subordinate to the authority. Here we also consider the concurrent jurisdiction which can be vested in more than one AO which is discernible by conjoint reading of Section 120(5) with Section 120(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the provisions of Section 124(3) of the Act since the assessee did not object within 30 days of the receipt of notice u/s 143(2) of the Act, the assessee could not question the jurisdiction of the AO. But since the issue before us relates to the jurisdiction of the AO framing the assessment order, the ratio laid down by the Hon'ble Apex Court will not be applicable on the facts of the instant case. Thus, to conclude, we allow the additional ground raised by the assessee and hold that the assessment order framed in the case of the assessee for AY 2013-14 dt. 26/03/2016 is without jurisdiction and is a nullity and is hereby quashed as the AO framing the said assessment did not have jurisdiction over the assessee as mandated in the CBDT Instruction No. 1/2011 (supra)". We also relied the order of ITAT Kolkata Bench in the case of M/s Rupasi Bangla Agro Industries Pvt ltd(supra). The notice which was issued U/s 143(2) by the ld. AO is beyond jurisdiction. The said notice is not curable U/s 292BB of the Act.The ld. DR was unable to show any different facts. The ld. AO has framed the assessment beyond the jurisdiction. Accordingly, we quash the assessment order which is beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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