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TMI Blog2025 (5) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection during the assessment proceedings and appears on 25.02.2016 and 04.03.2016 in consequence of notices issued u/s. 142(1) dated 19.02.2016. iii) The Ld. CIT(A) has erred in law and facts in cancelling the assessment order without considering the merit of the case. 2. Brief facts of the case are that the assessee company is engaged in development work on behalf of the State of UP. The assessee is registered under section 12A of the Act. The assessee filed its return of income on 27.09.2013 declaring NIL total income by claiming the income exempt as per the provisions of section 11 & section 12 of the Act. The case of the assessee was selected for scrutiny under CASS statutory notices u/s. 143(2) and section 142(1) of the Act were issued and served upon the assessee which were replied by the assessee. AO proceeded to compute the income of the assessee by noting as under:- "The AO added a sum of Rs. 16,70,62,031/- being the amount credited to the "Infrastructure Fund" and carried to the Balance Sheet instead of crediting to the Income & Expenditure Account by the appellant. The AO further computed the profit from sale of properties by the appellant during the relevant ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2014 was issued by ACIT-Circle-2 Ghaziabad. (Copy of notice is enclosed and marked as Annexure - A). CBDT vide notification dated 15/11/2014, exercising the powers under section 120 of the Income Tax Act, 1961 created Chief Commissioner of Income tax (Exemption), Commissioner of Income tax (Exemption) and various Exemption Circle/ ITO offices. Copy of notification is enclosed and marked as Annexure - D) Chief Commissioner of Income tax (Exemption vide order dated 15.11.2014 further assigned the cases between DCIT/ACIT and ITO. (Copy of order issued by CCIT-Exemption is enclosed and marked as Annexure - E). Appellant falls under the jurisdiction of Commissioner of Income Tax (Exemption) Lucknow. On the basis of jurisdiction order passed by CBDT, assessment for A.Y. 2012-13 was completed by DCIT-Circle (Exemption) Ghaziabad. Assessment proceedings for A. Y. 2013-14 i.e. year under consideration was initiated by ACIT-Circle-2 Ghaziabad as stated above. Subsequently, notice under section 142(1) of the Act was issued by DCIT-Circle Exemption Ghaziabad. (Copy of notice is enclosed and marked as Annexure - B). On 19/02/2016, a notice under section 142(1) of the Act was issued by Join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er from this office. 10. The case of the appellant is covered by the decision of Coordinate Bench of ITAT Kolkata in the case of Hirak Sarkar vs. ACIT, Circle-23(1). Hooghly in ITA No. 850/Kol/2019 for AY 2011-12 dated 12.08.2021. The operative part of the said judgment is reproduced as under:- "8. A perusal of the above statutory provisions would reveal that jurisdiction to transfer case from one Assessing Officer to other Officer lies with the Officers as mentioned in section 127(1) who are of the rank of Commissioner or above. No document has been produced on the file by the Department to show that the case was transferred by the competent authority from ITO, Ward-23(3), Hooghly to ACIT, Circle-23(1), Hooghly. Even, there is no document on the file that the ACIT, Circle-23(1), Hooghly had ever recorded any reasons to form belief that the income of the assessee has escaped assessment nor did he issue any notice u/s 147 of the Act. On the other hand, the ITO, Ward-23(3), Hooghly had recorded the reasons for reopening of the assessment and had issued notice u/s 148 of the Act, but did not proceed further with the framing of assessment. Under the circumstances, the assessment fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC), on this issue has held as follows:- "9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the appellant. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself." (Emphasis added) 13. in view of the fact that there was a change in jurisdiction of the case of the appellant from DCIT(Exemptions) to JCIT(Exemptions), Ghaziabad, and the revenue has failed to bring/show any evidence that any order u/s 127 of the Act was passed for such transfer of jurisdiction, the assumption of jurisdiction by JCIT(Exemptions), Ghaziabad is not valid. 14. In view of the above facts and circumstances of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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