TaxTMI 
TaxTMI 
2023 (6) TMI 277
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....post on 20.08.2022. The learned Senior DR strongly 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 U....
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....pen an assessment under section 147 depends upon issuance of a valid notice and in absence of the same entire proceedings taken 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.....
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....ppropriate and necessary to take respectful cogniziance of the judgment of Hon'ble jurisdictional High Court of Allahabad in the case of PCIT vs. Mohd. Rizwan (supra) 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 m....
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.... SCC 302, Court held, if a statutory authority has been vested with jurisdiction he has to exercise it according to its own discretion. 39. 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. 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 fo....
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....n." 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. 48. 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. 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....