TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 903
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....ect in conformity with and according to the intent and purpose of Income-tax Act." 2. By virtue of the impugned order, the learned CIT(A) has annulled the reassessment order. Aggrieved, the Department has filed this appeal. 3. In the reassessment order, the Assessing Officer observed, inter alia, that on the basis of enquiry conducted by the Investigation Wing of the Income-tax Department, reassessment proceedings were initiated against the assessee by issuance of notice under section 148 of the Income-tax Act by the Assessing Officer at Agra; that subsequently, on 27-8-2008, the case was transferred to the Assessing Officer at Delhi, i.e., the ITO, Ward 13(1), New Delhi, for completion of assessment, it having been found by the Assessing Officer at Agra that the return had been filed with Ward 13(1), New Delhi; and that notices were issued on various dates, including the notice for ex parte assessment under section 144 of the Act. 4. While annulling the reassessment done in pursuance of the aforesaid notice issued under section 148 of the Act by the Assessing Officer at Agra, the learned CIT(A) observed, inter alia, that the assessee company was registered with the RoC, Delhi, ....
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....ce at Z-45, Dayal Sar Road, Uttam Nagar, Delhi-59; it had filed its tax returns for the assessment year 1998-99, 1999-2000 and 2000-01 in Delhi. Thus, apparently, it was the ITO at Delhi and not the one at Agra, who had jurisdiction over the assessee. Undisputedly, no notice under section 148 of the Income-tax Act was ever served on the assessee by the Assessing Officer at Delhi. It was, rather, issued by the Assessing Officer at Agra, as has also been mentioned in the reassessment order itself. Section 2(7A) of the Income-tax Act defines "Assessing Officer" as follows : "Assessing Officer" means the Asstt. CIT or the ITO who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the Addl. CIT or Addl. Director or Jt. CIT or Jt. Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on or assigned to, an Assessing Officer under this Act. 8. Thus, as per section 2(7A) of the Act, an Assessing Officer is one who is vested with the relevant jurisdiction by virtue of the....
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....h assessment or reassessment." 12. First off, section 292BB of the Act was brought in by the Finance Act, 2008 with effect from 1-4-2008. The Hon'ble jurisdictional High Court in CIT v. Mani Kakar has held, inter alia, that section 292BB of the Act is not applicable to assessment year 2001-02, which is also the assessment year before us. 13. Then, the Delhi Special Bench of the Tribunal, in Kuber Tobacco Products (P.) Ltd. v. Dy. CIT [2009] 117 ITD 273 (Delhi)(SB) has held, inter alia, that when an amendment, though relating to a procedural provision, creates a new disability or obligation in respect of transactions already completed, such procedural provision cannot be applied retrospectively; that section 292BB of the Act has been made effective by the legislature from 1-4-2008; that there is nothing in the enactment to show that section 292BB has retrospective operation; that section 292BB takes away the right of an assessee to challenge the availability of a particular action of the Department of making assessment or reassessment on the basis of an invalid issuance/service of notice during the appellate proceedings, if such contention was never raised in the assessment procee....
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....ficer having jurisdiction over the assessee. Admittedly, it is not so in the present case. The Assessing Officer who issued the reassessment notice to the assessee, i.e., the Assessing Officer at Agra, was not having jurisdiction over the assessee. Therefore, the reassessment notice issued to the assessee was not a valid notice under the provisions of section 148 of the Act. That being so, the notice issued was a notice issued without jurisdiction and was, as such, a notice void ab initio. 19. Now, what section 292BB seeks is to deem an action as provided under the Act, to have-been done in accordance with the provisions of the Act. But when, as in the present case, the notice itself was not in accordance with the provisions of the Act, it was a jurisdictional defect, which the provisions of section 292BB of the Act cannot, by any stretch of imagination, be canvassed to cure. 20. This becomes even more clear from the Memorandum Explaining the provision : "Sub-section (2) of section 143 of the Income-tax Act provides that the notice under this sub-section shall be served on the assessee within a period of twelve months from the end of the month in which return is furnished. Furth....
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....thing going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. 23. As such, a 'proceeding', as envisaged by section 292BB has to be a legally valid proceeding which here it is not, since the notice for reassessment is bad in law. 24. This also goes for the 'inquiry' mentioned in section 292BB. 'Inquiry' is a legal proceeding in which facts are found on the basis of which liability or disability of a person is judged. In the present case, there was no 'inquiry' in which the assessee co-operated, again since the notice stood vitiated from its very inception. 25. The assessee, therefore, never appeared in any proceeding, nor co operated in any inquiry as required under section 292BB and so, section 292BB does not at all come into play. 26. Moreover, there is another reason also as to why section 292BB of the Act is not applicable to the fact situation present before us. Section 292BB of the Act envisages the deeming as it does, where the assessee, on his having appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, raises an objection with regard to" three aspects of a notice, i.e., (a) that the n....