TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1458
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....rcumstances of the case the order passed by the ld. Assessing Officer and the confirmation of the same by CIT (A) - 1, Patna is also unsustainable in law being violative of the settled principles of natural justice as no reasonable opportunity was allowed to furnish defence in course of assessment proceedings. 4. For that on the fact and in circumstances of the case the ld. Assessing Officer has assessed the income under section 143 (3) of the Act without issuing the statutory notice under the provisions of section 143(2) of the Act and the confirmation of the same by the CIT (A)-1, Patna is bad, unjustified, surmises and conjectures. 5. For that on the fact and in circumstances of the case the assessment order passed by the ld. Assessing Officer is bad in law as the ld. Assessing Officer completed the assessment while the statutory notice under the provisions of section 143 (2) of the Act was issued by the Income Tax Officer, Ward - 3(3) Aurangabad. 6. For that on the fact and in circumstances of the case the issuance of notice under the provisions of section 143 (2) of the Act is mandatory provision and must be issued by the individual Assessing Officer and serve to the ass....
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....t the assessee has not provided any documentary proof relating to works done by the M/s Puja Construction Bhagalpur. 14. For that on the fact and in circumstances of the case the ld. Assessing Officer has erred in initiating the penalty proceeding under the provisions of section 271(1)(c) of the Act on the ground that the appellant concealed the particulars of income. 15. For that on the facts and in circumstances of the case initiation of penalty proceeding under the provisions of section 271 (1) (c) for the concealment of income is wholly arbitrary, unwarranted, wrong and illegal. 16. For that on the fact and in circumstances of the case the ld. Assessing Officer has erred in charging interest under the provisions of section 234 B & 234 D without making any provision in the order of assessment there on. 17. For that on the facts and in circumstances of the case charging of interest under the provisions of section 234 B & 234 D are wholly arbitrary, unwarranted, wrong and illegal. 18. For that the observations made by the Assessing officer in the order of assessment are wholly biased, unwarranted and uncalled for and are even without any material available on record and ....
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....cer whereas if the returned income is more than Rs. 20 lacs, the jurisdiction lies with the concerned ACIT/JCIT. The ld. counsel has submitted that the jurisdiction to pass the assessment order in this case laid with the ACIT/DCIT as the income declared by the assessee was more than Rs. 20 lacs. The ld. counsel has further invited our attention to the impugned assessment order to show that the assessment order in this case has been passed by ACIT, Circle3(1), Gaya. He has further submitted that notice u/s 143(2) dated 20.09.2016 was issued by the Office of the Income Tax Officer (ITO), Ward-3(3), Aurangabad. 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 ACIT and not with the ITO on account of pecuniary jurisdiction, the returned income being more than Rs. 20 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 ....
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....criteria, namely:- (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and (d) cases or classes of cases ...... 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 limi....
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....n Bhagyalaxmi Conclave (P) Ltd. (supra) is reproduced as under: "5.2. The assessee relied on the recent decision of this Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd. vs. DCIT, in ITA No. 2634/Kol/2019, order dated 12.01.2021. We find 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 mo....
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....) of the Act was issued by the Assessing Officer having jurisdiction of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, Circle-1(1), Durgapur. Under these circumstances, the 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 notic....
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.... crossed by him. Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) 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 Incometax 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. C....
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.... on the point as regards applicability of the requirement of notice under Section 143(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 case-law 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 h....