TMI Blog2024 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 149(1)(d) of the Act no notice under Section 148 of Act could be issued. Petitioner also brought to the notice of Assessing Officer ( AO ), i.e., Respondent No. 1 that Petitioner has been an NRI since last six years and has been filing his Income Tax Returns as NRI and even the e-filing portal shows Petitioner s residential status as Non-resident . Hence, the jurisdiction would lie with Income Tax Officer (International Taxation), Ward-3(2)(1). In effect Assessee/Petitioner informed Respondent No. 1 that he had no jurisdiction to issue the notice under Section 148A(b) of the Act. AO has, in our view, taken an unacceptable stand that Assessee has not proved with substantial evidence and documents and has not been able substantiate his claim as an NRI. We also fail to understand what evidence Assessee has to show when Assessee makes the statement that in the income tax returns filed by him, his residential status appears as Non-resident . So also, in the income tax portal, his residential status shown as Non-resident . In fact the intimation under Section 143(1) of the Act issued to Assessee for AYs 2019-2020, 2021-2022, 2022-2023 and 2023-2024, all show the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he has been NRI since Assessment Year ( AY ) 2017-2018. For the year under consideration, i.e., AY 2016-2017, Petitioner was a Resident . For AY 2016-2017, Petitioner on 26th October 2016, filed his Return of Income ( RoI ) declaring an income of Rs. 38,98,110/-. Petitioner s RoI was processed under Section 143(1) of the Income Tax Act, 1961 ( the Act ) on 1st February 2018. 3. Petitioner received a notice dated 25th March 2023 under Section 148A(b) of the Act alleging that there was information that the income of Petitioner had escaped assessment for AY 2016-2017. The information relies on the statement recorded during the course of search and seizure action conducted under Section 132 of the Act in the case of one Ashwin Kumar Mali. As per the information, Petitioner/Assessee had undertaken a financial transaction in the sum of Rs. 1,30,66,755/- with one Secure Exim Private Limited ( SEPL ) and said SEPL was controlled by Ashwin Kumar Mali and said entity was providing accommodation entries of bogus sale/purchase and bogus unsecured loans to various entities in lieu of cash. Assessee allegedly had entered into fictitious loan transactions with SEPL, which provides accommodation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential status as Non-resident . Hence, the jurisdiction would lie with Income Tax Officer (International Taxation), Ward-3(2)(1). In effect Assessee/Petitioner informed Respondent No. 1 that he had no jurisdiction to issue the notice under Section 148A(b) of the Act. 6. The AO has, in our view, taken an unacceptable stand that Assessee has not proved with substantial evidence and documents and has not been able substantiate his claim as an NRI. We also fail to understand what evidence Assessee has to show when Assessee makes the statement that in the income tax returns filed by him, his residential status appears as Non-resident . So also, in the income tax portal, his residential status shown as Non-resident . In fact the intimation under Section 143(1) of the Act issued to Assessee for AYs 2019-2020, 2021-2022, 2022-2023 and 2023-2024, all show the residential status of Petitioner as Non-resident . Therefore, we would not hesitate to observe that the stand taken by the AO is a dishonest stand. 7. Respondent No. 1 thereafter passed the impugned order dated 12th April 2023 under Section 148A(d) of the Act in which, according to us, the AO has accepted that he had no jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. Dr. Shivram relies upon a notification no. SO 2814(E) [No. 57/2014 (F. No. 187/29/2014 ITA.I)] dated 3rd November 2014 issued by Central Board of Direct Taxes under Section 120 of the Act jurisdiction. Dr. Shivaram also submitted that the notice issued by Respondent No. 1, therefore, was invalid and of no effect since it is issued by an officer who did not have jurisdiction over Petitioner. 10. Since in the affidavit-in-reply a stand is taken that the file can be transferred now to the AO who had jurisdiction over Petitioner, Dr. Shivram submitted, relying on Commissioner of Income Tax v. M.I. Builders (P.) Limited [2014] 44 taxmann.com 360 (Allahabad)., that the notice issued by Non-jurisdictional Assessing Officer is invalid, no records can be transferred when the proceedings were invalid ab-initio and such transfer cannot validate any proceedings taken in continuation thereof. 11. Ms. Nagaraj appearing for Respondents-Revenue relying on a judgment of Hon ble Delhi High Court in Abhishek Jain v. Income Tax Officer and Another 2018 SCC OnLine Del 9435., submitted that the objections as to the jurisdiction of AO cannot be equated with lack of subject matter jurisdiction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucknow. It was held that there cannot be situation where two Assessing Officers would have simultaneous jurisdiction over the assessee. Accordingly, it was held that the Tribunal had rightly held that the issuance of notice under section 148(1) of the said Act by the non-jurisdictional Assessing Officer was without jurisdiction. 13. It will also be useful to reproduce paragraph no. 17 of M.I. Builders (supra) and it reads as under : 17. Having heard learned Counsel for the parties and perusing the records, we are of the view that on 29.03.2004, when the notice under Section 148(1) of the Act was issued, ACIT, Range-IV, Lucknow have no jurisdiction over the Assessee on the date of issuance of such notice as the jurisdiction over the Assessee was transferred to the Additional CIT, Range-I, Lucknow vide order dated 01.08.2001 passed under Section 120 of the Act by the CCIT, Lucknow. Therefore, it cannot be situation where two Assessing Officers would have simultaneous jurisdiction over the assessee, one being Additional CIT, Range-I, Lucknow and other being ACIT, Range-IV, Lucknow. In these backgrounds, the Tribunal has rightly held that the issuance of notice under Section 148(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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