TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 749
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....owers of Commissioner of Income Tax (Appeals) are reproduced as under : 2 "251(1) - In disposing of an appeal, the Commissioner (Appeals) shall have the following powers : (a) In an appeal against the order of assessment, he may confirm, reduce, enhance or annul the assessment". 3. Any other grounds that may be urged at the time of hearing. 3. The assessee has filed the return of income on 07.09.2013 declaring the total income of Rs. 8,51,190/-. The case was selected for scrutiny and the notice u/s 143(2) was issued by the ITO, Ward-1(1), Siliguri on 02.09.2014 which was served on the assessee on 08.09.2014. The assessee filed objection before the ITO, Siliguri challenging the jurisdiction hence the case was transferred to ITO, Ward-1 (1), Guntur who has issued notice u/s 143(2) on 14.11.2014 and the same was served on 20.11.2014. The assessment was completed u/s 144 r.w.s. 143(3) on total income of Rs. 15,28,92,480/-. 4. Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) challenging the validity of assessment made u/s 143(3) stating that the assessment made u/s 143(3) is invalid since the notice issued by ITO Ward-1(1), Guntur on 14.11.2014 is ....
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.... as non-est. The ITO, Ward- 1(1), Guntur has issued notice on 14.11.2014 which was served on the assessee on 20.11.2014 and barred by limitation period specified in proviso to section 143(2). Therefore, argued that the notice issued by the AO is barred by limitation and the consequent assessment is invalid and required to be quashed. The Ld.AR submitted that the time limit for issue of notice u/s 143(2) was 30.09.2014. Since the technical issue raised by the assessee in cross objections is having bearing on the entire assessment and the goes to the root of assessment, we are of the view that the cross objection is to be addressed first. Accordingly, we take up the ground No. 1 of Cross Objection. 8. In this case, ITO, Ward-1(1), Siliguri has issued notice u/s 143(2) on 03.09.2014 which was served on the assessee on 08.09.2014. The assessee submitted the reply to the ITO, Ward-1(1), Siliguri stating that the jurisdiction over the assessee vests with the ITO, Ward 1(2), Guntur, hence the notice issued u/s 143(2) by ITO Ward-1(1), Siliguri is void-ab-initio. The Ld.AR challenged the validity of notice issued by ITO, Ward-1(1), Siliguri. The Ld.DR submitted that ITO, Ward-1(1), Siligu....
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....y evidence on which the assessee may rely in support of the return: 19[Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.]]" 10.1. From section 143(2), it is evident that the AO or the prescribed Income Tax authority, if he considers it is not necessary or expedient to ensure that the assessee has not under stated the income, shall serve on the assessee a notice requiring him to produce or cause to produce the evidence before the AO. Therefore, notice u/s 143(2) required to be issued by the AO or Income Tax authority. As per Rule 12E, the prescribed authority is defined as under : " [Prescribed authority under sub-section (2) of section 143. 12E. The prescribed authority under sub-section (2) of section 143 shall be an income-tax authority not below the rank of an Income-tax Officer who has been authorised by the Central Board of Direct Taxes to act as income-tax authority for the purposes of sub-section (2) of section 143.]" 10.2. The AO / Ld.DR did not show any authorization issued by the Central board of Direct Taxes (CBDT)to act as Income Tax Au....
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.... the revenue has not brought on record to show that notification u/s 127 passed by the Commissioner of Income Tax conferring the jurisdiction over the assessee with ITO-Ward1(1), Silguri. It is the responsibility of the Income Tax department to migrate PAN to the correct AO, if there is a mismatch. Simply because the PAN is attached to ITO, Ward-1(1), Siliguri he cannot assume the jurisdiction over the assessee and issue the notice without having powers vested in him. Therefore, the notice issued by the ITO, Ward-1(1), Siliguri is invalid, hence the same should be treated as non-est. This view is supported by the order of the ITAT Kolkata in ITA No.1621 &1301/Kol/2011 dated 20.07.2016 in ITO, Ward-56(4) Vs. M/s Nopany & Sons and the decision of ITAT, Delhi in the case of ACIT Vs. Smt. Harinder Sachdev in I.T.A.No.207/Del of 2010 and I.T.A.No.4776/Del of 2009. 11. Having held that the notice issued u/s 143(2) by the ITO, Ward-1(1), Silguri is invalid we now examine the validity of notice issued by the ITO, Ward-1(1), Guntur. In this case the assessee is filing the returns with ITO, Ward-1(2), Guntur. ITO, Ward-1(1), Guntur has issued notice u/s 143(2) on receipt of assessment recor....
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....omputerized System of the Department because it is against the provisions of Law. As such the ssue would he in violation of the principles of law and as such the internal procedure provided by the department would not just' the illegality committed by the ITO, Ward-1 (1), Faridabad, The entire assessment proceedings are vitiated because of non-service of Jurisdictional notice under section 143(2) within the period of limitation by the AD. having jurisdiction over the case of the assessee. No infirmity have been pointed out in the order of the Ld. CIT(A) in holding the assessment order to be null and void. We confirm the finding of fact recorded by the Ld. CIT(A) and dismiss this ground of appear of Revenue. Since the entire assessment order is deciared as null and void, there is no need to dedcide the issue on merit which is left with academic discussion only. The departmental appeal fails and is dismissed." 12. In the instant case, the first notice was issued by the ITO, Ward-1(1), Siliguri who is having no jurisdiction, hence it is invalid. The second notice issued by the ITO, Ward-1(1), Guntur was barred by limitation. The prerequisite for making the assessment u/s 143(2) ....