TaxTMI 
TaxTMI 
2021 (9) TMI 841
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....me from his address 7/186A-1, Kanpur and in this respect our attention was invited to P.B. pages 28 to 33 where the copies of income tax returns for AYs 2011-12 to 2013-14 was placed. It was submitted that as per these income tax returns assessee had been filing returns with ITO, Ward-3(1). Our attention was also invited to copy of application as moved before Income Tax PAN Services Unit, Belapur dated 17.11.2012 placed at pages 127 to 128 whereby the address of the assessee was changed from Swaroop Nagar, Kanpur to Tilak Nagar, Kanpur and our attention was also invited to P.B. pages 129 wherein the PAN Services Unit had confirmed change of address of the assessee. It was submitted that the new address also falls with Assessing Officer Ward-3(1). Our attention was also invited to copy of Form-26AS where the new address of the assessee has been mentioned. In view of these facts it was submitted that since the assessment order has been passed by Assessing Officer who has not given the notice u/s. 143(2) of the Act the assessment order passed by Assessing Officer is null and void and it was prayed that the same may be annulled. Reliance in this respect was placed on the decision of Mo....
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....ices Unit to change his address from Swaroop Nagar, Kanpur to Tilak Nagar and it was accepted also and was conveyed to the assessee by the Income Tax Service Unit and copy of such application and its acceptance is placed at P.B. pgs. 127 to 129. On this acceptance letter the date of change is not mentioned however the fact remains that assessee had filed application for change of address on 17.11.2012 and Form No. 26AS generated by Income Tax Department also contains the new address which means that the department had taken note of the new address and the new address also falls within the jurisdiction of Assessing Officer Ward- 3(1). Therefore, the notice u/s. 143(2) of the Act should have been issued by the Assessing Officer having jurisdiction over the assessee which has not been done and similarly the orders should have been passed by the same Assessing Officer who had issued notice u/s. 143(2) of the Act. 4.1 Lucknow Bench of the Tribunal in the case of Bajrang Bali Industries, under similar facts and circumstances has held as under: 5. We have heard the rival parties and have gone through the material placed on record. It is undisputed fact that the assessment orde....
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....f Act, 1961 is a procedural step or jurisdictional. (ii) Whether notice issued by an authority having no jurisdiction can attain validity by referring to Section 292BB of Act, 1961 only for the reason that Assessee participated before transferee Assessing Authority. (iii) Whether a jurisdictional issue could have been raised by Assessee at any stage or the objection at the subsequent stage is not permissible in view of Section 124(3)(a). (iv) Whether assessment made by Assessing Officer, after transfer of a case, from the stage when another officer had already issued notice under Section 148, though had no jurisdiction in the matter and transferree authority did not issue any fresh notice, can be said to be valid." 6. While answering the above questions the Hon'ble Court has held as under: 1. "We, therefore, find that all the aforesaid questions formulated above can be considered together for the reason that principal issue engaging attention of this Court in this case is "if a notice under Section 148 of Act, 1961 was issued by incompetent Officer, i.e., one who has no jurisdiction, mere fact that subsequently on the objection of Assessee....
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....posit of cash of Rs. 70,19,000/in Saving Bank Account. 8. Assessee was offered opportunities vide notices dated 14.12.2012, 02.01.2013, 05.02.2013 issued under Section 142(1) of Act, 1961 fixing 28.12.2012, 10.01.2013 and 15.02.2013. Still, Assessee failed to comply show cause notices. For noncompliance under Section 271(1)(b) of Act, 1961, a show cause notice was also issued on 05.02.2013. Still Assessee did not cooperate. Hence, a show cause notice for completion of assessment under Section 144 of Act, 1961 was issued on 08.03.2013 fixing case for 15.03.2013. Assessment was finalized on 18.03.2013 computing total income as Rs. 72,37,610/. 9. A.O. passed another order imposing penalty under Section 271(1)(b) of Act, 1961 of Rs. 40,000/, i.e., Rs. 10,000/each, for four defaults under Section 271(1)(b) of Act, 1961. 10. Another appeal was preferred against penalty order dated 30.09.2013 which was also dismissed by Commissioner of Income Tax (Appeal)II, Lucknow (hereinafter referred to as "CIT(A)II") vide order dated 30.09.2014 passed separately. 11. Assessee then preferred further Appeals No. 89 and 90/LKW/2015 before Tribunal which have been allo....
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....effective from 01.06.2010, Assessee was actually within the jurisdiction of ITO RangeV and not ITO RangeIV. Case was transferred to A.O. having jurisdiction on 11.04.2012. The jurisdictional A.O., however, completed assessment without issuing notice under Section 148 of Act, 1961 on 18.03.2013 adding cash deposits in the income of Assessee. He also issued an order under Section 271(1)(b) of Act, 1961 imposing penalty of Rs. 40,000/. 15. It is also contended on behalf of Assessee, when alleged AIR information was available at the relevant time for making regular assessment under Section 143(3) of Act, 1961, against Return filed under Section 139(4) of Act, 1961, exFACie, there was no reason to initiate reassessment proceedings under Sections 147/148 of Act, 1961. 16. Chapter XIV of Act, 1961 contains provisions laying down procedure for assessment and it runs from Sections 139 to 158. Broadly, Section 139(1) casts an obligation on every person to furnish voluntarily a Return of his total income or total income of any other person in respect of which he is assessable if such total income during previous year exceeds maximum amount which is not chargeable to Income T....
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....er in writing accepting or rejecting claims and make an assessment determining total income. 23. Where a person fails to file Return voluntarily or after service of notice, A.O. may proceed to make a best judgment assessment after taking into account all relevant materials which A.O. has gathered. 24. Sections 147 and 148 relates to procedure for reassessment or opening of assessment where A.O. has reason to believe that any income chargeable to tax has escaped assessment for any A.Y. 25. Section 148 provides for issue of notice where income has escaped assessment and A.O. intents to make reassessment or re-computation under Section 147. 26. Looking into the scheme of procedure for assessment as briefly discussed above, we find that, in the present case, dispute relates to A.Y. 201010 (F.Y. 200910, i.e., 01.04.2009 to 31.03.2010). Time to file Return of income under Section 139(4) was obviously available to Assessee upto 31.03.2012. It is also not disputed that return was actually filed by Assessee on 17.02.2012. In these circumstances, we do not find any occasion on the part of Revenue to have served a notice under Section 148 of Act, 1961 upon ....
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....rudhsinhji Jadeja and another Vs. State of Gujarat 1995 (5) SCC 302, Court held, if a statutory authority has been vested with jurisdiction he has to exercise it according to its own discretion. 34. In K.K. Loomba and Mrs. Uma Loomba Vs. Commissioner of Income Tax and others 2000 (241) ITR 152 (Delhi) it was held that A.O. having natural jurisdiction over the area would have jurisdiction to assess, issue notice under Section 148 as well and it cannot be done by anyone else. 35. Punjab and Haryana High Court in the case of Lt. Col. Paramjit Singh Vs. Commissioner of Income Tax and another 1996 (220) ITR 446 (Punjab) said "a notice for reassessment can be issued only by A.O. who had concluded the proceedings." 36. We, however, do not go to that extent for the reason that there may be any subsequent change resulting in change of jurisdiction of A.O. Notice of reassessment can be issued by such an Officer but not by Officer who has no jurisdiction for assessment/reassessment. 37. In Commissioner of Income Tax Vs. Rajeev Sharma 2011(336) ITR 678, Court observed "provisions contained in Section 148 of Act, 1961 with regard to escaped assessment must be....
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....taken by him would become void for want of jurisdiction." Court then held that notice was invalid as A.O. had no jurisdiction to revise assessment then it cannot be treated to be mere irregularity so as to validate proceedings of assessment if the Assessee had participated. 43. Similar is the view taken by a Full Bench of this Court in Laxmi Narain Anand Prakash Vs. Commissioner of Sales Tax, Lucknow AIR 1980 ALL 198. 44. The contention of learned counsel for Revenue that participation of Assessee before Jurisdictional A.O. would operate as acquiescence or waiver and will not invalidate proceedings is thoroughly misconceived. 45. In Karnal Improvement Trust, Karnal Vs. Smt. Prakash Wanti and another (1995) 5 SCC 159, Court said that acquiescence does not confer jurisdiction and erroneous interpretation should not be permitted to perpetuate and perpetrate defeating of legislative animation. 46. In Abdul Qayume Vs. Commissioner of Income Tax 1990 (184) ITR 404, Court said "an admission or an acquiescence cannot be a foundation for assessment where the income is returned under an erroneous impression or misconception of law." 47. It is well....