2018 (11) TMI 1417

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....on under Rule 11 of the ITAT Rules; copy of ITR for AY 2015-16 filed on 12.3.2016 with Faridabad address; copy of ITR for AY 2014-15 filed on 31.8.2014 with Faridabad same address; Notice u/s. 143(2) of the Act dated 26.7.2016 issued by DCIT, Circle 2, Hazaribagh; copy of notice u/s. 142(1) r.w.s. 129 dated 12.7.2017 issued by ITO, Ward 1(5) Faridabad and order u/s. 127 dated 27.3.2017 and copies of various case laws supporting the additional ground raised by the assessee. For the sake of convenience, the additional ground raised by the Assessee is as under:- "That assessment framed u/s. 143(3) by ITO, Ward 1(5) Faridabad for the period under consideration (AY 2015-16) is void ab initio as notice u/s. 143(2) dated 26.7.2016 issued by DCIT....

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....Authorities and the case laws cited by the Ld. counsel for the assessee, I am of the considered view that additional ground raised by the assessee under rule 11 of the ITAT rules deserves to be admitted being purely legal and jurisdictional ground which goes to the root of the matter and for which necessary facts are available on record. In admitting this additional ground, I am supported by the recent decision of the Hon'ble Punjab and Haryana High Court in case of VMT Spinnig reported at 389 ITR 326 and Hon'ble Delhi High Court decision in the case of Silver Line reported at 383 ITR 455, wherein Hon'ble Apex Court decision in the case of NTPC Limited 229 ITR 383 was relied. Following this I admit the additional ground raised by the assess....

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....2016 09.05.2018 2. Jaipur bench of ITAT in Asha Nath in ITA 7216/Del/2017 03/08/2018 3. Delhi ITAT in case of Yogesh Yadav in ITA 1757/Del/2016 (order dated 09/10/2017) 4. Delhi ITAT in case of Akhilesh Aggarwal in ITA 4099/Del/2013 order dated 22/02/2016 (B bench) 5. Delhi ITAT in case of Al Faheem Meatex Pvt Ltd in ITA 6122 & 6123/Del/2015 order dated 09/06/2017 (E bench) 6. Kol ITAT in case of Sukumar Ch Sahoo in ITA 2073/Kol/2016 order dated 27/09/2017 (C bench) 7. Delhi ITAT in case of Kushal Timber (P) Ltd in ITA 578/Del/2010 order dated 21/10/2015 8. Ld. DR relied upon the order of the authorities below. But could not controvert the contentions of the Ld. Counsel for the assessee and not produced any contrary decision/ju....

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....tated that the assessee is regularly filing the income tax return at Faridabad address only and requested to transfer his case to the Faridabad AO. After passing order u/s. 127 of the Act by the Pr. CIT, Hazaribagh vide its order Fine.CIT/HZB/Tech/ u/s. 127/2016-17/3081-87 dated 28.3.2017, the case of the assessee was transferred to this office on 30.9.2017. On receipts of case on transfer, notice u/s. 142(1) read with section 129 of the Act was issued on 14.10.2017 fixing the case for hearing on 20.7.2017. In n response to the notice issued, Sh. Dinesh Kumar Aggarwal, FCA attended the proceedings and filed written reply. Asked to furnish the rest of the information as asked for vide u/s. 142(1) of the Act. Request for adjournment. On his r....

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....e question is whether the notice was issued by the correct jurisdictional officer or not. In the present case as mentioned by the AO himself that the case was subsequently transferred to the Assessing Officer as per the actual jurisdiction on 07/09/2012 and subsequently he issued notice under section 143(2) on 20.9.2012. From the above facts, it is apparent that first notice was issued by the DCIT, Ghaziabad on 29/08/2011, who was not having jurisdiction over the assessee. It is the legality of this notice that is required to be tested. According to the provisions of section 143 (2) of the act the notice for verifying the return of income is required to be issued by the 'assessing officer'. The assessing officer has been defined under sec....