TaxTMI 
TaxTMI 
2023 (7) TMI 901
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....that the delay which was duly covered with an order of the Hon'ble Supreme Court in Suo Motu Writ Petition (C) NO. 3 Of2020 date of order 10/01/2022 considering the Covid Pandemic. Accordingly, the delay was extended till 28.02.2022 by the order of Hon'ble Apex Court. The ld. DR had not made any objection against the submission of the ld. AR. Accordingly, the delay of 334 days is condoned. 3. The assessee has taken the following grounds: "1. That on the facts and in the circumstances of the case and in law, the learned Pr. CIT, Bathinda erred in revising the assessment order Dated 14.12.2018 passed by the AO, Ward 3(3), Faridkot which was neither erroneous nor prejudicial to interest of revenue. 2. That on the f....
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.... brief order passed without detail by the AO that the AO acted erroneously as the AO has passed the brief assessment order after seeing the assessment record and with application of his mind and alter taking a plausible view. An enquiry made by the AO, considered by the Pr. CIT as inadequate, cannot make the assessment order erroneous. A brief order without details cannot be termed that the AO acted erroneously. So, the revision order is liable to be quashed. 6. That the assessee has filed the return of income in response to notice u/s 148 on 10.11.2018 at Rs. 319270/-and the same was duly considered while framing assessment. The deduction u/s 54 was claimed in this return and facts were on file at the time of making re-assessment.....
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....fy the genuineness of the exemption claimed nor verify as to whether the pre-requisite required being eligible for exemption u/s 54 has been met. Accordingly, the order u/s 263 was passed in setting aside to the assessment order for further verification. Being aggrieved order passed by the ld. PCIT, assessee filed an appeal before us. 5. The ld. AR filed written submissions which is kept in the record. The ld. AR argued first in ground no. 4 related to issuance of notice u/s 263. The ld. AR invited our attention in APB pages 1 to 2 the notice dated 02.03.2021 which was issued by the ITO-Ward, Gurdaspur to initiate the proceeding u/s 263. The notice u/s 263 dated 02.03.2021 is duly reproduced as below : 5.1. The ld. AR further placed t....
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.... empowered to act in place of the Commissioner under section 21 of the ET Act. 14. Lalitkumar Bardia (supra) considered section 2(7A) of the Income-tax Act and the meaning of the expression "Assessing Officer" and found that the DCIT, Nagpur, did not have jurisdiction over the Respondent-Assessee by virtue of section 120 of the Act and it is the Assessing Officer alone who was to serve notice calling upon the assessee to furnish a return in terms of Section 158BC. The notice issued by the DICT was bad since on the date the notice was issued, he was not the Assessing Officer. The Division Bench held that as a consequence the notice issued by the DCIT and all proceedings subsequent thereto were without authority of law. 15. ....
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....ty was set aside as it was found that the notices were not sent as required under order 5 rule 1(3) of the Code of Civil Procedure. Similarly, in the case of B.K. Gooyee (supra) , the Calcutta High Court has also taken same view that the irregularity of serving a notice under section 34 of the Act, cannot be waived by the assessee or his counsel as the irregularity is not one of a merely procedural nature, and service of a valid notice is necessary to invest the ITO with jurisdiction to take proceedings under the section. Therefore, so far as the service of notice under section 282 is concerned, it is mandatory, and it has to be in the manner provide under the Act and no other way. Secondly, notice under section 263 requires that a reason f....
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....cordingly, answered." 6. The ld. DR vehemently argued and relied on the order of the lower authorities. 7. We heard the rival submission and relied on the documents available in the record. The notice U/s 263 was issued by the ITO as per direction of the ld. PCIT. The notice was issued by the ITO who is below the rank of ld. PCIT. The ITO has no power to initiate the notice u/s 263 which vitiated the entire proceeding of section 263. The statute never permitted in section 263 for delegation of power to the authority below for issuance of notice for initiation of proceedings. We respectfully relied on the case Alcon Resort Holdings Ltd, (supra). We fully relied on the maxim delegatus non protest delegare sets. The delegation if possibl....