TMI Blog2024 (2) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... K.A. wires Ltd. ( 2020 (3) TMI 418 - ITAT KOLKATA] - AO had acted beyond the jurisdiction. We also relied the order of M/s Rupasi Bangla Agro Industries Pvt ltd [ 2023 (12) TMI 930 - ITAT KOLKATA] 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. Decided in favour of assessee. - Shri Anikesh Banerjee, Judicial Member Shri Girish Agrawal, Accountant Member For the Appellant : Shri Sunil Surana, A.R For the Respondent : Md. A.H. Chowdhury, CIT D.R ORDER Per Anikesh Banerjee, Judicial Member: The instant appeal of the assessee and the cross-appeal were filed against the order of Ld. Commissioner of Income Tax (Appeals)-Dhanbad [in brevity ld. CIT(A) ] dated 13.08.2020 passed u/s 250 of the Income Tax Act, 1961 (in brevity the Act ) for assessment years2016-17. The impugned order was emanated from the order of the ACIT/DCIT, Circle-3, Deoghar (in brevity the AO ) passed u/s 143(3) of the Act dated 20.12.2018. 2. The assessee has taken the following gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is reproduced as below: The Ld. A.R pleaded that the address of the assessee is 101, Tower No. 10 Triumph Omex Heights, Vibhuti Khand, Gomti Nagar, Uttar Pradesh-226010 The address of Uttar Pradesh is mentioned both in assessment appeal orders But without any reason the Ld. AO had passed the order who has not at all jurisdiction u/s 127 of the Act 6.1. The Ld. A.R relied on the order of jurisdictional Tribunal and other Tribunals which are as follows: i) Judgment of Kolkata ITAT M/s Rungta Irrigation Ltd. vs. ACIT in ITA No. 1224/Kol/2019 pronounced on 06.09.2019, [2020] 113 taxmann.com 330 (Kolkata 35. Coming back to the admitted facts in the present case, we hold that the ACIT, Central Circle-3(1), Kolkata framed the assessment order, dated 29.12.2017, pursuant to transfer of case ordered by PCIT, Central Patna, dated 03.11.2017, u/s. 127 of the Act, without there being valid issuance of notice u/s. 143(2) of the Act. In our opinion such an order is bad in law as held by the Hon'ble Supreme Court in Hotel Blue Moon (supra) wherein the Hon'ble Supreme Court has held that issue of a legally valid notice u/s. 143(2) is mandatory for usurpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961? 27. The case of the Revenue is that the expression so far as may be, apply indicates that it is not expected to follow the provisions of Section 142, subsections (2) and (3) of Section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression so far as maybe, apply . In our view, where the Assessing Officer in repudiation of the return filed under Section 158-BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143. 6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008, has effected any change. Said Section 292BB is to the following effect: 292BB. Notice deemed to be valid in certain circumstances. Where an assessee has appeared in any proceeding or cooperated 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended to cure complete absence of notice itself. 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered. by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter.' 36. For the reasons set out above therefore, we uphold the objections raised by the appellant against the validity of the impugned order u/s. 143(3) for Assessment year 2015-16. We accordingly hold that since in the present case no valid notice u/s. 143(2) was issued by the Assessing Officer who held jurisdiction over the case of the appellant, the consequent order passed u/s. 143(3) dated 29.12.2017 was legally unsustainable and therefore is null in the eyes of law and therefore quashed. The assessee accordingly succeeds on the preliminary legal issue raised before us. ii) M/s K.A Wires vs. ITO in ITA No. 1149/KOL/2019 pronounced on 22.01.2020. The relevant part is extracted below: 5.2. In reply, the ld. Counsel for the assessee relied on certain case case-law law and submitted that Section 124(3) of the Act, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. So the additional ground should be rejected. 8. We heard rival submissions and considered the documents available in the record. For relating to issue of jurisdiction of the assessee first look at Section 124(3) of the Act. The relevant part is extracted as below: - Jurisdiction of Assessing Officers. 124. (3) No person shall be entitled to call in question the jurisdiction of anAssessing Officer (a) where he has made a return [under sub-section (1) of section 115WD or] under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or 63[subsection (2) of section 115WE or] sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under 64[sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144] to show cause why the assessment shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or violation of the jurisdiction. We fully rely on the order of Coordinate Bench in case of Rungta irrigation Ltd. (supra) and M/s K.A. wires Ltd. (supra). The ld. AO had acted beyond the jurisdiction. The ld. DR relied on Order of the Hon ble Supreme Court of Indiain the case of Deputy Commissioner of Income-tax (Exemption)v.Kalinga Institute of Industrial Technology, [2023] 151taxmann.com434 (SC). The ld. AR argued that the same verdict of Hon ble Apex Court is duly distinguished and discussed in the order of ITAT Kolkata bench in the case of M/s Rupasi Bangla Agro Industries Pvt ltd vs ITO, 38(1), Midnapur, ITA No. 909/Kol/2023 date of pronouncement 14/12/2023.The relevant paragraph is inserted below: - 10. Perusal of the above decision indicates that issuance of notice u/s 143(2) of the Act by the Assessing Officer not having jurisdiction over the assessee renders the assessment proceedings as a nullity. However, the case of the assessee before us is on a much stronger footing because leaving aside the issuance of notice u/s 143(2) of the Act, even the final assessment order has been framed by the Assessing Officer not having jurisdiction over the assessee. Though the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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