TaxTMI 
TaxTMI 
2013 (1) TMI 293
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....nabsorbed losses of the earlier years. Subsequently, a notice u/s 148 was issued on 31.3.2010 on the reason that there was a change in the shareholding in the previous year in the case of the assessee which is more than 99% of the shareholding of the company and, therefore, as per section 79, the losses incurred in any previous year prior to the previous year shall not be carry forward and set off against the income of the previous year in which there is a change in the shareholding of more than 51%. The assessee raised an objection of validation of notice issued u/s 148 inter alia on the ground that the Assessing Officer who has issued the notice u/s 148 was not having jurisdiction over the assessee. The Assessing Officer who has completed....
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.... "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) erred in allowing the assessee to set off its earlier losses holding that section 79 of the IT Act, 1961 does not apply in the assessee's case without appreciating the provisions of section 79 and that the Law does not envisage mere application of Share Application Money as Share Capital." 5. First, we take up the appeal of the assessee as the issue of validity of notice u/s 148 has been raised which goes to the root of the matter. As evident from the ground raised by the assessee, the assessee has challenged the reopening on three grounds viz. (i) The AO who has issued the notice u/s 148 was lacking the jurisdiction over the assessee (ii) The reopening is ....
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....issued u/s 148 on the ground of jurisdiction, then, there is no merit in the objection of the assessee. He has further submitted that when the assessment has been concluded by the ITO, Ward-9(2)-1 who has administrative jurisdiction on the assessee, then, the objection of jurisdiction raised by the assessee is not tenable. He has relied upon the order of the CIT (A) and Assessing Officer on this point. 7. We have considered the rival submissions as well as the relevant material on record. There is no dispute on the point that the original assessment was completed by the ITO, Ward-10(3)-4, Mumbai and, thereafter due to change of the address of the assessee, the jurisdiction of the Assessing Officer was also changed from ITO, Ward-10(3)-4 ....
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....). Further, even if it is assumed, though no accepted, that the notice had been issued by ITO-10(3)(4), what is paramount is who is the Officer with the right jurisdiction and whether the same officer is taking the final decision in respect of the assessment proceedings. Thus, the moment the current officer taken the final decision on the subject matter of reassessment, no process of law or provisions of the Act are vitiated." 8. It is manifest from the assessment order that the AO has not really disputed this fact that the Assessing Officer who had issued notice u/s 148 was not having any jurisdiction over the assessee. However, the objection of the assessee was rejected on the reasoning that when the final decision in respect of reasse....
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.... question of jurisdiction of Assessing Officer cannot be raised first time before us after completion of the assessment but, since the assessee has raised this objection right from the beginning and the Assessing Officer as well as CIT (A) has given a finding, therefore, this issue does not question the jurisdiction of the AO who has completed the re-assessment but questions the validity of Notice u/s 148 and emanates from the impugned orders of the authorities below. The definition of the Assessing Officer as provided u/s 2(7A) of the Income Tax Act means "the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or ITO who has vested with the relevant jurisdiction by virtue of directions or orders issued u....