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TMI Blog2024 (5) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... was also issued by Shri Gautam Banerjee, ITO, Ward-61(4), Kolkata who was not having the jurisdiction to frame the assessment. The case was reopened u/s 147 read with Section 148 of the Act as stated above which was complied with by the assessee by filing return of income on 04.04.2017. The assessee vide letter dated 1.4.2017 sent by registered post on 5.4.2017 addressed to ITO, Ward-61(4), Kolkata specifically raised an objection that there was no jurisdiction with the AO over the assessee's case. The assessee is a director of a company which was assessed by ITO, Ward-6(1), Kolkata and therefore directors of the company have to be assessed by the same AO. Upon assessee having raised objection before the AO vide letter dated 1.4.2017, the case was transferred to the correct AO and accordingly the ITO, Ward-6(1), Kolkata framed this assessment. The contention raised by the counsel of the assessee before us is that with the assessment having framed by the correct AO, however the same was without jurisdiction as the notice u/s 148 of the Act and 143(2) of the Act as referred to above were issued by another ITO, Ward-61(4), Kolkata who was not having the jurisdiction over the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata. We note that the assessee objected to the jurisdiction of the AO who issued the said notices vide letter dated 1.4.2017 and considering the assessee's request, the case was transferred to ITO, Ward-6(1), Kolkata and the assessment was framed accordingly. Now the question before us whether the assessment so framed by ITO, Ward-6(1), Kolkata is invalid. In view of the fact that notice u/s 148 as well as 143(2) of the Act were issued by ITO, Ward61(4), Kolkata. We have perused the various decisions of Hon'ble Calcutta High Court as cited before us and same are discussed as under: a) In the caser of PCIT vs. Mohan Chand Motilal (supra), the Hon'ble Jurisdictional High Court has upheld the tribunal order. In this case the Tribunal dismissed the appeal filed by the revenue on the ground that the same was filed by ACIT-39, Kolkata while the jurisdiction was with ITO-44 which was upheld by the Hon'ble Court by holding that there was a fundamental error on which the appellate tribunal dismissed as incompetent since the order of AO who had no jurisdiction to undertake the assessment qua the assessee could have been found to be legal or resurrected and Court held that the order whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, thereafter, analysed as to the correctness of the submission of the revenue seeking to sustain their stand by referring to a notice issued by the assessing officer, who at the relevant point had no jurisdiction over the assessee and, on facts, found that there is no valid compliance of Section 143(2) of the Act as the notice issued under Section 143(2) of the Act by the assessing officer/Income Tax Officer, Ward-3(1) had no jurisdiction over the assessee at the relevant time. The Tribunal to support its conclusion placed reliance in the case of CIT & Another Ys. Mukesh Kumar Agarwal [2012] 345 ITR 29 (Allahabad), wherein it was held that the assessing officer did not have jurisdiction to proceed further and make assessment since notice under Section 143(2) of the Act was admittedly not issued. As in the case on hand, the revenue sought to take coverage under Section 292BB of the Act which was rejected on the ground that the very foundation of the jurisdiction of the AO was on the issuance of notice u/s 143(2) of the Act and the same having been complied with, the revenue cannot take shelter under the provisions of Section 292BB of the Act. Thus, we are of the clear v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice issued under Section 143(2), he had no jurisdiction over the assessee at the relevant time and such assessment order was liable to be set aside. It is the submission of the learned standing counsel for the Department ..-.that the assessee had not raised the question of jurisdiction before the assessing officer but participated in the assessment proceedings and, therefore, could not have raised the said issue before the Tribunal. This argument cannot be acceded to for more than one reasons, firstly, there cannot be any estoppel against the statute. It is not the case of the revenue that the assessee consciously waived his right to raise such a jurisdictional issue. Secondly, the assessee had filed an application before the learned Tribunal seeking leave to raise additional grounds and this application was held and after contest the application was allowed. The learned Tribunal, in fact, recorded that the Department could not controvert any of the submissions of the assessee on the additional grounds which have been raised and, therefore, the application was allowed taking note of thematter that the issue goes to the root of the entire proceedings. Thus, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) upholding the assessment order which has been framed by the AO without jurisdiction. 10. Facts in brief are that the assessee filed return of income on 28.08.2015 declaring total income of Rs. 12,19,800/- which is selected for scrutiny under CASS. A notice u/s 143(2) was issued on 28.07.2016 which was served to the assessee on 05.10.2016. The said notice was issued by ITO, Ward-61(4). The assessee objected to the said issuance of notice by the AO without having any jurisdiction vide letter dated 25.08.2016. Accordingly the case was transferred to ITO, Ward-6(1), Kolkata who framed the assessment accordingly but without issuing any notice. 11. Since the issue raised before us in this appeal is similar to one as decided by us in ITA No. 638/Kol/2022 wherein we have quashed the assessment order as without jurisdiction on the ground that notices u/s 148/143(2) of the Act were issued by AO who was not having any jurisdiction over the assessee. Accordingly, in the present case also the facts are quite similar and would, mutatis mutandis, apply to his appeal as well. Consequently the appeal of the assessee is allowed by quashing the assessment. 12. In the result, both the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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