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TMI Blog2024 (9) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... 60,96,900/- as exempt income u/s 10(38) on account of long term capital gains from sale of listed shares on which STT was paid. The case was selected for scrutiny under CASS. Though the proceedings of assessment for the AY 2014-15 were going on with the Income Tax Officer, Ward 70(2), notice U/S 143(2) of the Income Tax Act, 1961 dated 19-09-2016 was received for AY 2015-16 from the Income Tax Officer, ward 40(1), Delhi. Again notices u/s 143(2) and 142(1) were received from the Income Tax officer, ward 2(2), Noida time and again. All these notices were duly replied with though the assessee had objected the jurisdiction at Noida and requested the concerned authority to drop the proceedings. Again, a notice u/s 142(1) of the Income Tax Act, 1961 dated 07-11-2017 was received from Income Tax Officer, ward 8(2), Delhi. The notice and proceedings were duly complied with though no notice u/s 143(2) was received from Ward 8(2), Delhi. The assessment order dated 19-12-2017 was passed by Income Tax Officer, ward 8(2), Delhi assuming the jurisdiction. 3. The assessee had raised challenge of exercise of jurisdiction to pass assessment order before CIT(A) which was disposed of by CIT(A) by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4776/Del of 2009) ITAT Delhi. Harvinder Singh Jaggi Vs ACIT (2016) 157 ITD (Delhi-Trib.)" 4.2 I nave considered the facts of the case and the submission made by, the AR. It is observed that the appellant had himself filed the ITR at Delhi with ITO, Ward-25(1) in which the appellant had mentioned his address of Noida. In view of this, the ITO at Noida had issued the notice to the appellant. The appellant objected to the assessment proceedings to be carried by ITO, Noida and vide letter dated 13.11.2017, requested that the assessment be completed by the Delhi based AO. In this regard, reference is made to the decision of Hon'ble Delhi High Court in the case of Abhishek Jain vs ITO 405 ITR 1 [2018], in WRIT PETITION (CIVIL) No. 11844/2016, wherein vide Order dated 01.06.2018, it has been held that- "37. The view we have taken, finds support from the decision of the Patna High Court in Mahalliram Ramniranjan Das vs. CIT (1985) 156 ITR 885, wherein the decision of Delhi High Court in Kanji Mai & Son's case (supra) was referred to. Reference was also made to the decision of the Supreme Court in Guduthur Bros. vs. ITO (1960) 40 ITR 298 (SC), and the matter was remanded to the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenience: In such a situation, the concept of jurisdiction cannot be imported and, certainly, not in the sense of invalidating the resultant action on account of the defect in the exercise of functions. Being an enactment aimed at collecting revenue, the Legislature did not intend collection of revenue to be bogged down on account of technical plea of jurisdiction. It has, therefore, prescribed the limit up to which the plea of jurisdiction may be raised. As provided in Section 124(5)(a), the right is lost as soon as the assessment has been completed. Even where the right is exercised before the assessment is completed, the question is to be decided by the Commissioner or by the Board.. Courts do not come into the picture. From the above provisions of the Act, it is apparent that the Act does hot treat the allocation of functions to various authorities or officers as one of substance. It treats the matter as one of procedure and a defect of procedure does not invalidate the end action. The answer to the first question, therefore, is that the power is administrative and procedural and is to be exercised in the " interest of exigencies of tax collection and the answer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld become ab initio void and the consequences were different from merely setting aside." 18. S. S. Ahluwalia (supra), examines several decisions which were relied upon by the assessee in the said case and were held to be not germane and applicable. This decision also explains provisions of Section 127 of the Act and scope and ambit of the said power, to observe that the section does not speak of the transfer of jurisdiction but transfer of case as defined in Section 127. Expression "concurrent jurisdiction" is mentioned in sub-section (3) to Section 127 of the Act. Elucidating the legal effect of Sections 120, 124 and 127 of the Act, it was observed in S. S. Ahluwalia. (Supra):- "(13)The provisions indicate that Sections 120, 124 and 127 of the Act recognizes flexibility and choice, both with the assessee and the authorities i.e. the Assessing Office before whom return, of income could be filed and. assessment could be made. The Assessing Officer within whose area an assessee was carrying on business, resided or otherwise income had accrued or arisen (in the last case, subject to the limitation noticed above) has jurisdiction. Similarly, the Assessing Officer also has authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived in that area over which the assessing officer exercises jurisdiction. However, notwithstanding Section 124(5), the Act does not postulate multiple assessments by different assessing officers, or assessment of part or portion of an income [see Kanjimal & Sons Vs. Commissioner of Income Tax, New Delhi, (1982) 138 ITR 391 (Del)]. Thus, it is necessary that the Assessing Officers having concurrent jurisdiction ensure that only one of them proceeds and adjudicate. This is the purport and objective behind sub-section (2) to Section 124 of the Act- 21. Contention of the petitioner that the transfer by Income-Tax Officer, Ward-1 (1), Noida to Income- Tax Officer, Ward-58 (2), Delhi required an order under Section 127 of the Act is fallacious and without merit. Section 127 relates to transfer of case from one Assessing Officer having jurisdiction to another Assessing Officer, who is otherwise not having jurisdiction as per directions of the Board under Section 120 and Section 124 of the Act. Under. sub-section (1), transfer order under Section 127 can be passed by the Director General, Chief Commissioner or Commissioners from one Assessing Officer to another Assessing Officer subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f issues and not at the subsequent stage. Jurisdiction as to the subject matter is distinct and stands on a different footing. 23. In mew of the above discussion, objections as to the jurisdiction of assessing officer in the present case cannot be equated with lack of subject matter jurisdiction. They relate to place of assessment. Income-Tax Officer Ward 1(1), Noida would not per se lack jurisdiction, albeit he had concurrent jurisdiction with the Income-Tax Officer Ward 36(l)/58, Delhi. In the facts of the present case the contention raised about the lack of jurisdiction would not justify quashing the notice under Section 147/148 of the Act. 24. Accordingly, we do not find any merit in the present petition and the same is dismissed. Stay order is vacated. However, in the facts of the present case there would be no order as to costs. " 4.2.1 In the present case, it is observed that the appellant had himself mentioned the Noida address in the ITR and on his request only; the case was transferred to Delhi. In View of the above facts and the legal position as discussed above, the contentions of the appellant regarding the jurisdiction of the AO are found to be baseless and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce u/s 143(2) was again issued on 29.09.2016. However, upon consequent request by assessee, the case was transferred back to Ward 40(1), Delhi vide transfer order dt. 05.10.2017. Later, notice u/s 142(1) was issued on 07.11.2017 by Ward 8(2), Delhi and assessment proceedings u/s 143(3) were completed and assessment order dt. 19.12.2017 was passed. Submission with regard to assessee's ground that order u/s 143(3) was passed without jurisdiction: * Jurisdiction by Ward 8(2), Delhi was assumed in accordance with Order dt. 15.11.2014 u/s 120 of the act, whereby jurisdiction over companies having registered office or principal place of business in Delhi and whose name begins with alphabet "El to Eq" and also jurisdiction of their managing director(s) or director(s) or manager(s) or secretary fall with Ward 8(2), Delhi. In the present case, assessee was a director in the company M/s Emgreen Impex Pvt. Ltd. and thus, jurisdiction over assessee was correctly assumed u/s 120 and a separate order u/s 127 for transfer of jurisdiction is not required. * Address of the assessee was mentioned as Pitampura, Delhi in the ITR filed for AY 2014-15, which falls under Ward 40(1), Delhi for nonco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction by virtue of the directions or orders issued under sub-section (1) or sub-section (2) of section 120." * Further, Ld. CIT(A) has also dismissed assessee's plea regarding non--assumption of jurisdiction by AO after following relevant procedure prescribed u/s 127, citing decision of Hon'ble High Court of Delhi in Abhishek Jain Vs ITO 405 ITR 1(2018) in which it was highlighted that if jurisdiction has been assumed in accordance with direction of the Board u/s 120, section 127 does not come into play." Submission dated 01/07/2024 "In this regard, it is humbly submitted that in response to the details as asked by Hon'ble Bench in previous hearing(s), following submission may kindly be considered in addition to our earlier submission in the hearing dt. 20.05.2024: Brief background/facts: Notice u/s 143(2) was first issued by Ward 40(1), Delhi on 19.09.2016. Later, the case was transferred to Noida Office (Ward 2(2)) on the basis of address mentioned in the ITR of the assessee for AY 2015-16 and notice u/s 143(2) was again issued on 29.09.2016. However, upon consequent request by assessee, the case was transferred back to Ward 40(1), Delhi vide transfer order dt. 05.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come on 30.09.2015. The assessee received a notice on 18.09.2015 u/s 143(2) of the Act for AY 2014-15 from ITO, Ward-40(1), Delhi and this assessment for AY 2014-15 was transferred to ITO, Ward 70(2), Delhi on 22.09.2015 and, thereafter, ITO, Ward-70(2), Delhi, issued notice u/s 143(2) for AY 2014-15. In regard to the present assessment year AY 2015-16, notice u/s 143(2) was issued on 19.09.2016 which was received by post and on e-mail on 20.09.2016. This notice was issued by ITO, Ward-40(1), Delhi. At the time of issuance of this notice on 19.09.2016 assessment for AY 2014-15 was pending with ITO, Ward-70(2), Delhi. Thereafter, on 26.09.2016, ITO, Ward-40(1) suo moto transferred the assessment to ITO, Ward 2(2), Noida. Thereafter, on 04.10.2016, notice u/s 143(2) of the Act dated 29.09.2016 was issued by ITO, Ward-2(2), Noida. In the mean time, on 30.12.2016, assessment for AY 2014- 15 was completed by ITO, Ward-70(2), Delhi. The assessee, thereafter, received a notice u/s 143(2)/142(1) from ITO, Ward-2(2), Noida on 19.01.2017 which the assessee had replied on 31.01.2017 giving information of the change of address and raising specific objection over the issue of notice by ITO, War ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad filed the return of income on 30.09.2015 and the limitation for issuance of notice u/s 143(2) was 30.09.2016. Assessee has claimed that this notice was received on 4.10.2016. But what is crucial is that in the reply filed by the AO before us, there is no mention as to for what valid reasons case was transferred to Noida Ward 2(2). Thus the issue of notice dated 29.02.2016 is not being defended to assume jurisdiction for completing assessment u/s 143(3) of the Act. It is mentioned in response that the assessee's PAN was with Ward 40(1), Delhi, since 2006 and it was in 2016, PAN was transferred to Ward-8(2), Delhi. Thus we can conclude that ITO Ward 2(2) Noida did not have jurisdiction still ITO Ward 40(1), Delhi had transferred the case to Noida. This discussion in itself is sufficient to conclude that no valid notice was issued u/s 143(2) of the Act by jurisdictional AO. 7. Further if the case of AO is examined it is also pleaded in the response by the AO that jurisdiction of Ward 8(2), Delhi existed due to order date 15.11.2014 u/s 120 of the Act, where jurisdiction over companies having registered office or principal place of business in Delhi and whose name begins with alpha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noida was also not sure of jurisdiction of Ward 40(1), New Delhi as he mentioned that; "if the jurisdiction lies with some other circle/ward, the case record may please be transferred to the concerned AO. The matter is time barring on 31.12.2017." 8.2 However, thereafter, the notice u/s 142(1) of the Act was issued on 07.11.2017 by ITO, Ward 8(2), New Delhi to which the assessee has replied by letter dated 23.11.2017 with the following preliminary objections as appear form the copy of this letter available at page 43 of PB:- "Please refer to order sheet entry dated 13-11-2017. In this regard, it is very humbly submitted that the return for the AY 2015-16 was filed by the assessee on 30-09-2015. The case of the assessee for the AY 2014-15 was taken to scrutiny and notice u/s 143(2) was issued by the Income Tax Officer, Ward 40(1) on 18-09-2015 which was later on transferred to ward 70(2), Delhi being Jurisdictional Assessing Officer on the basis of my residential address. Thereafter the case was being taken up by the Income Tax Officer Ward-2(2), Room No. 404, 4th Floor, A-2D- Sector 24, Noida- UP-201301. Vide Email dated 1-3-2017, Income Tax officer, Noida has already rejected m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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