TaxTMI 
TaxTMI 
2023 (6) TMI 277
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....gly opposed to the condonation of delay. However, he could not controvert the fact that the assessee filed appeal on the portal of ITAT online on 30.07.2022. 3. On careful consideration of above we find that the assessee filed online appeal on 30.07.2022 and physical copy reached on 25.08.2022 and thus, said cause shown by the assessee is a reasonable cause beyond control of the assessee. Therefore delay of 22 days in filing the appeal is condoned and appeal is admitted for adjudication. 4. Ground no. 3 of assessee read as follows:- That, the NFAC has erred in not appreciating that fact, that the notice issued u/s. 148 has wrongly issued by DCIT, Circle 3(1), Haridwar, whereas, the jurisdiction of the assessee lies with ITO, Ward-2(2), Muzaffarnagar, therefore, the notice issued u/s. 148 is illegal, bad in law and without jurisdiction. 5. The assessee has submitted following written submissions on ground no. 3 A) That, the notice issued Us 148 of the ACT by the DCIT, Circle-3(1), Haridwar is illegal, bad in law and without jurisdiction. a) That, the DCIT, Circle-3(1), Hardwar has issued, the notice Us 148 on 30.03.2008 Page No. 12 of the P/B; b) The assessee challenged t....
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....aken by him would become void for want of jurisdiction. That, the assessee company wants to place, its reliance on :- * Decision of jurisdictional Allahabad High Court, in the case of PCIT Vs. Mohd. Rizwan, ITA No. 100/2015 Page No. 129 to 133 of the P/B; * Decision of Hon'ble ITAT Camp Bench at Jalandhar, in the case of Gaurav Joshi Vs. ITO, ITA No.274/ASR/2018 Page No.96 to 101 of the P/B; Decision of Hon'ble ITAT Ahmedabad Bench, in the case of ACIT Vs. Resham Petrotech Limited, Page No. 73 to 92 of the P/B; * Decision of Hon'ble High Court of Calcutta, in the case of Smt. Smriti Kedia Vs. Union of India, Writ Petation1 No.984/2006, Page No.93 to 95 of the P/B; 6. Precisely reiterating the above written submissions the ld. counsel submitted that the DCIT, Circle 3(1), Haridwar issued notice u/s. 1148 of the Act on 30.03.2018 for AY 2011-12 and the on the written request of assessee dated 24.08.2013 the said Assessing Officer transferred the case to ITO Ward 2(2), Muzaffarnagar without any order u/s. 127 of the Act. Therefore, placing reliance various judgements and orders including judgment of Hon'ble jurisdictional High Court of Allahabad in the case of P....
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.... wherein their Lordship under identical facts and circumstances held as follows:- 29. 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. 30. Section 148 provides for issue of notice where income has escaped assessment and A.O. intents to make reassessment or recomputation under Section 147. 31. Looking into the scheme of procedure for assessment as briefly discussed above, we find that, in the present case, dispute relates to A.Y. 2010-10 (F.Y. 2009-10, 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 Assessee on 18.11.2011 inasmuch as neither assessment was made till date nor there was any occasion to assume that there was any escapement of income from assessment. This entire exercise of reassessment commencing from notice dated 18.11.2011, i....
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....2 (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. 40. 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." 41. 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. 42. 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 construed strictly with regard to procedure prescribed for escaped assessment." 43. The reason for issuance of notice by Competent A.O. is quite obvious inasmuch as such notice could have been issued only when concerned A.O. has reason to believe that some income has escaped assessment and re-computation/reassessment ....
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....ales Tax, Lucknow AIR 1980 ALL 198. 49. 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. 50. 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. 51. 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." 52. It is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. 53. Even if, it can be said that Assessee submitted to jurisdiction of A.O., law is that Assessee cannot confer jurisdiction on an authority who did not have the same and we find support from Commissione....