TaxTMI 
TaxTMI 
2023 (1) TMI 1086
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.... no.2 of appeal raised regarding allowance of indexed cost of acquisition and indexed cost of development resulting into addition of Rs.7,97,401/-. The addition made by the A.O and not adjudicated by CIT(A) is contrary to law and not justified. 3. The appellant reserves the right to add, amend or alter any ground or ground/s of appeal." Also the assessee has raised an additional ground of appeal before us, which reads as under: "The assessment proceedings and the assessment order passed by the A.O are illegal ab initio void inasmuch as no notice u/s.143(2) was issued by the A.O within the time prescribed under the first proviso to Sec.143(2). The assessment order is liable to be quashed." 2. I shall first deal with the admissibility of the additional ground of appeal that has been raised by the assessee-appellant before me. As the assessee by raising the aforesaid additional ground of appeal has assailed the validity of jurisdiction that was assumed by the A.O on the basis of notice issued u/s.143(2) of the Act dated 16.08.2017 by the ITO-3(1), Raipur, which involves purely a question of law that would require looking no further beyond the facts available on record, therefore....
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....) of the Act dated 23.10.2017. Elaborating on his aforesaid contention, it was submitted by the Ld. AR that as the assessee company had filed its return of income for A.Y.2015-16 declaring a loss of Rs.(-) 75,654/-, therefore, the pecuniary jurisdiction over its case as per the CBDT Instruction No.1/2011 dated 31.01.2011 r.w. Instruction No.6 of 2011 dated 08.04.2011 was vested with the ITO-3(1), Raipur, who had framed the assessment vide his order u/s.143(3) of the Act dated 23.10.2017. Coming to his grievance, it was submitted by the Ld. AR that as the jurisdictional A.O i.e. ITO-3(1), Raipur had framed the assessment vide his order u/s.143(3) dated 23.10.2017 without issuing any notice u/s.143(2) of the Act, therefore, the assessment so framed could not be sustained and was liable to be struck down on the said count itself. 8.1 On being confronted with the fact that as per the assessment order notice u/s.143(2) dated 11.04.2016 was issued to the assessee within the prescribed time, it was submitted by the Ld. AR that as the same was issued by the DCIT-1(1), Raipur i.e. a non-jurisdictional officer, therefore, no cognizance of the same could be drawn. It was submitted by the Ld.....
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....Court of Gujarat in the case of Pankajbhai Jay Sukhlal Shah Vs. ACIT, Circle-2 (2019) 110 taxmann.com 51 (Guj.). Also support was drawn by the Ld. AR from the orders of ITAT, Raipur Bench in the case of M/s. Durga Manikanta Traders Vs. Income Tax Officer, Ward-1(1), ITA No.59/RPR/2019 dated 12.12.2022 and in the case of Shri Sudhir Kumar Agrawal, Durg Vs. ITO, Ward-2(2), Bhilai in ITA No.158/RPR/2017, dated 17.10.2022. In sum and substance, it was the claim of the Ld. AR that as the impugned assessment u/s.143(3) of the Act dated 23.10.2017 was framed de-hors issuance of any valid notice u/s.143(2) by the jurisdictional A.O, therefore, the assessment order so passed being devoid and bereft of any force of law was liable to be quashed. 9. Per contra, the Ld. Departmental Representative (for short 'DR') relied on the orders of the lower authorities. It was submitted by the Ld. AR that as the assessment u/s. 143(3) dated 23.10.2017 had been framed on the basis of notice u/s.143(2) dated 11.04.2016, which was issued within the prescribed time limit, therefore, no infirmity did emerge as regards assumption of jurisdiction by the A.O. 10. I have heard the ld. authorized representatives....
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....remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law the CIT(A) is not vested with any power to summarily dismiss an appeal for non-prosecution. My aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Prem Kumar Arjundas Luthra (HUF) (2017) 297 CTR 614 (Bom). In the aforementioned case the Hon'ble High Court had observed as under: "8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the AO to make further inquiry and report the result of the same to him as found in Sec. 250 of the Act. Further , Sec.250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Sec. 251(1)(a) and (h) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Be....