TaxTMI 
TaxTMI 
2023 (12) TMI 930
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....nt was duly discharged but the AO did not proceed further to make any enquiry and added back the amount without bringing any evidence to prove otherwise. 2. For that the Ld. CIT(A) erred in confirming the order of the AO in adding back Rs. 13,29,00,000/- and treating the said sum of as unexplained on the ground that the assessee failed to discharge its onus simply because the share applicants did not appear in response to notice u/s 131 when the same has nothing to do with ingredients to prove the cash credit u/s 68. 3. For that the Ld. CIT(A) erred in confirming the order of the AO in adding back Rs. 13,29,00,000/- and treating the said sum of as unexplained on the ground that the assessee failed to discharge its onus simply because the share applicants did not appear in response to notice u/s 131 when the same has nothing to do with the ingredients to prove the cash credit u/s 68. 4. For that the Ld. CIT(A) erred in confirming the order of the AO in adding back Rs. 13,29,00,000/- as undisclosed income on surmises and conjectures when on the facts and circumstances of the case the addition was uncalled for." 3. The assessee has raised the following ad....
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....s with the ACIT/DCIT. The ld. Counsel for the assessee further stated that in view of the said CBDT instructions, the assessment in case of the assessee ought to have been framed by the Income-tax Officer whereas the assessment order in question has been framed by the ACIT Circle-38, Midnapore and, therefore, the assessment order is without jurisdiction and deserves to be quashed. It was also stated that the issue stands squarely covered by the recent decision of this Tribunal in the case of Alpha National Trading Co. vs. ACIT in ITA No. 686/Kol/2023; order dt. 27/09/2023 wherein this Tribunal dealing with the similar issue and placing reliance on the judgment of the Hon'ble Jurisdictional High Court in the case of PCIT vs. Shree Shoppers Ltd. in ITAT /39/2023 in IA No. GA No. 1/2023 dated 15/03/2023 has quashed the assessment order on the ground that the ACIT who had pecuniary jurisdiction to frame the assessment did not issue notice u/s 143(2) of the Act. 7.1. On the other hand, the ld. D/R though supported the orders of the lower authorities could not controvert this fact that considering the income declared by the assessee, assessment ought to have been framed by the Income-....
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....1/Kol/2023; Assessment Year 2014-15; order dt. 03/11/2023 wherein also the issue regarding the validity of service of notice u/s 143(2) of the Act has been adjudicated and relevant finding of the Tribunal reads as follows:- "4. According to Ld. Counsel for the assessee since the income tax return filed by the assessee is less than Rs. 30 Lakh therefore, the jurisdiction to issue notice u/s 143(2) of the Act to frame the assessment was with the ITO and not with the ACIT. Ld. Counsel for the assessee submitted that the case of the assessee is squarely covered by the decision of the Hon'ble Jurisdictional High Court in the case of PCIT vs. Shree Shoppers Ltd. in ITAT/39/2023 in IA No.GA/1/2023 dated 15.03.2023. Ld. Counsel for the assessee also relied on the decision of the Coordinate Bench in the case of Alpha National Trading Co. vs. ACIT in ITA No. 686/KOL/2023 order dated 27.09.2023 wherein the coordinate bench has decided the issue in favour of the assessee after following the above decision of the Hon'ble Jurisdictional High Court. The operative part of the decision is extracted as under: "5. The ld. Counsel for the assessee in this respect has invited ....
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....irst para of the assessment order wherein, it has been mentioned that notice u/s 143(2) dated 09.08.2013 was issued and duly served upon the assessee. The ld. counsel has further invited our attention to the copy of the aforesaid notice u/s 143(2) dated 09.08.2013 which has been placed at page 27 of paper-book. A perusal of the aforesaid notice u/s 143(2) dated 09.08.2013 reveals that the same has been issued by the Office of the Income Tax Officer (ITO), Ward-1(1), Kolkata. The ld. counsel in this respect has submitted that in this case, the jurisdiction to issue notice u/s 143(2) of the Act vested with the DCIT and not with the ITO on account of pecuniary jurisdiction, the returned income being more than Rs. 30 lacs of the assessee. He has further submitted as per the settled proposition of law, the issue of notice u/s 143(2) by the concerned Assessing Officer of competent jurisdiction was sine qua non to assume jurisdiction to frame assessment u/s 143(3) of the Act. He, in this respect, has relied upon the decision of the Hon'ble Supreme Court in the case of ACIT vs. M/s Hotel Blue Moon (supra). The ld. counsel, therefore, has submitted that in this case the concerned DCIT did n....
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.... ...... 6. A perusal of the aforesaid statutory provisions would reveal that the jurisdiction of Income Tax Authorities may be fixed not only in respect of territorial area but also having regard to a person or classes of persons and income or classes of income also. Therefore, the CBDT having regard to the income as per return has fixed the jurisdiction of the Assessing Officers. The ld. Counsel in this respect has relied upon the CBDT Instruction No.1/2011 [F.No.187/12/2010-IT(A-I), for the sake of convenience is reproduced as under: "Instruction No.1/2011 [F.No.187/12/2010-IT(A-I), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. Income Declared (Mofussil areas) Income Declared (Metro ....
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....that the issues that arise in this appeal are clearly covered in favour of the assessee. This order followed the principles of law laid down in a number of other decisions of the ITAT, Kolkata Bench on this issue. 5.3. Kolkata "B" Bench of the Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd.(supra) held as follows: "10. In this case, the ITO Ward-3(3), Kolkata, issued notice u/s 143(2) of the Act on 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward-3(3), Kolkata, stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT, Circle-11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, Circle-11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The issue is whether an assessment order passed by DCIT, Circle-11(1), Kolkata, is valid as admittedly, he did not issue a notice u/s 143(2) of the Act, to the assessee. This issue is no more res-integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. 462/Kol/2019; Assessment Year 2015-16, order dt. 8th January, 2020, under identical circumstances, held as under:- "5. After hearing riva....
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....he question is whether the assessment is bad in law for want of issual of notice u/s 143(2) of the Act. 9. This Bench of the Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT in ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows:- "5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non corporate returns' filed where income declared is only upto Rs. 15 lacs ; and the ITO doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above Rs. 15 lacs income declared by a non- corporate person i.e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of Rs. 50,28,040/- in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward-1, Haldia on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. The AO noted that since th....
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....) of the Act has set in, goes to the root of the case and makes the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. 7. In the result, appeal of assessee is allowed. 9.1. This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO reported in [2017] 78 taxmann.com 89 (Kolkata-Trib.) held as follows:- "Return of income of assessee was Rs. 12 lakhs - As per CBDT instruction, jurisdiction for scrutiny assessment vested in Income-tax Officer and notice under section 143(2) must be issued by Income-tax Officer, Ward-I, Haldia and none other - But, notice was issued by Asstt. Commissioner, Circle Haldia much after CBDT's instruction and knowing fully well that he had no jurisdiction over assessee - Whe....
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....2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself." 10. Respectfully following the propositions of law laid down in all these caselaw and applying the same to the facts of the case, we hold that the assessment order is bad in law for the reason that the Assessing Officer having jurisdiction over the assessee, has not issued a notice u/s 143(2) ....
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....red by the recent judgment of Hon'ble jurisdictional High Court of Calcutta in the case of PCIT Vs. Shree Shoppers Ltd. in ITAT/39/2023 in IA No.GA/1/2023, dated 15.03.2023, wherein substantial questions of law before the Hon'ble Court were as under: "(i) whether on the facts and circumstances of the case the Tribunal was justified in law to quash the Assessing Order passed under section 143(3) of the said Act on the ground that the valid Notice under Section 143(2) was not issued in accordance with law despite the fact that said Notice was already issued by the jurisdictional Assessing Officer before the process of Restructuring Departmental Cadre? ii) Whether on the facts and circumstances of the case the Tribunal was justified in law in not appreciating the fact that the Notice under Section 143(2) of the said Act is issued only once at the time of initiating of the scrutiny assessment, thereafter mere change of jurisdictional Assessing Officer within the same Range and/or Pr.CIT cannot affect the assessment proceedings?" 5. On the above substantial questions of law, the Hon'ble Court held that Tribunal rightly allowed the assessee's appeal and quashed....
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....lkata but the point in dispute is that on date of issuing a notice u/s. 143(2) of the At, whether the ITO, ward-9(4), Kolkata was having a valid jurisdiction to issue such notice u/s. 143(2) of the Act." 6. Ld. Counsel also placed on record the order of the Coordinate Bench of ITAT, Kolkata in the case of Shree Shoppers Ltd. Vs. DCIT in ITA No. 865/Kol/2018 dated 08.09.2022 findings of which have been affirmed by the Hon'ble jurisdictional High Court of Calcutta as stated above. 7. Per contra, Ld. Sr. DR placed reliance on the order of Ld. AO. 8. We have heard the rival contentions and perused the material available on record and find that the issue raised by the Ld. Counsel on the jurisdictional aspect in respect of notice issued u/s. 143(2) is no longer res integra. It is a settled position of law that for carrying out an assessment proceedings u/s. 143(3) of the Act, statutory requirement of serving a valid notice u/s. 143(2) of the Act is a must and in absence of which the subsequent proceedings become invalid. In the present case before us, it is a fact that assessee has reported total income of Rs. 43,53,620/- which exceeds the threshold prescribed ....
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....ecuniary jurisdiction of the concerned Assessing Officer to frame the assessment. 8. In this case, since the concerned ACIT who had pecuniary jurisdiction to frame the assessment did not issue notice u/s 143(2) of the Act, therefore, the assessment framed was bad in law in view of the case laws as cited above. The impugned assessment order framed by the Assessing Officer, therefore, is bad in law and the same is hereby quashed. 9. In the result, the appeal of the assessee stands allowed." 5. Considering the facts of the case, we are of the view that ACIT, Circle- 43, Kolkata has no jurisdiction to frame the assessment order and to issue notice u/s 143(2) of the Act. Therefore, the assessment framed is bad in law in view of the ratio laid down by the above referred decisions. Accordingly, the assessment order framed by the AO is hereby quashed." 10. Perusal of the above decision indicates that issuance of notice u/s 143(2) of the Act by the Assessing Officer not having jurisdiction over the assessee renders the assessment proceedings as a nullity. However, the case of the assessee before us is on a much stronger footing because leaving aside the issuanc....