2025 (5) TMI 356

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.... against the order of ld. CIT (A) upholding the assessment order passed by the ld. AO i.e. ACIT, Circle 11(2), Kolkata without issuing any notice u/s 143(2) of the Act and therefore, the assessment framed is bad and ab-initio and ex-facie nullity in law. 03. The facts in brief are that the assessee filed return of income on 29.08.2015, declaring total income at Rs.83,28,070/- after claiming deduction of Rs. 1,75,000/- under Chapter VIA. The case of the assessee was selected for scrutiny under Computer Assisted Scrutiny Selection (CASS) and notice u/s 143(2) of the Act dated 28.08.2016, was issued by ACIT Circle-31, Kolkata, which was duly served upon the assessee. Notice u/s 142(1) of the Act was issued on 08.02.2017. Subsequently, the c....

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....t the file cannot be transferred without there being an administrative order of the PCIT, who is authorized to transfer the cases intra AOs falling under his administrative charge and therefore, the assessment framed is ex-facie, nullity and void ab-initio. He further contended that no assessment can be framed by the ld. AO without issuing notice u/s 143(2) of the Act. So far as second contention is concerned that the file cannot be transferred by one AO to another AO in the same jurisdiction without an order of PCIT u/s 127(3) of the Act the ld counsel relied on the decision of the Hon'ble High Court in case of Kusum Goyal Vs. ITO reported in (2010) 329 ITR 283 (Calcutta). 06. The ld. DR vehemently supported the order of the lower a....

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....urisdictional who framed the assessment sans issuing any notice u/s 143(2). 08. We have heard the rival contentions and perused the materials available on record. We note that the assessment order was passed by the ld. ACIT Circle-11(2), Kolkata, without issuing the mandatory notice u/s 143(2) of the Act after the case records of the assessee was transferred to him by ACIT Circle-31, Kolkata, who issued the notice u/s 143(2) of the Act because he was not having any jurisdiction over the assessee. We note that the case file was transferred from one ACIT circle-31 to another AO i.e. ACIT Circle -11(2) without any administrative order passed by the PCIT having the administrative control over both the AOs. Therefore, on this count also the a....

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....s for the assessment years 2007-08, 2008-09 and the earlier years as intimated in the letter/notice dated July 30, 2009 issued by respondent No. 1 is also bad in law. The argument of the respondents that in case of intra city transfer no order is required to be passed, cannot be accepted in view of the settled position of law in Kashiram Aggarwalla [1965] 56 ITR 14 (SC) and in S.L. Singhania [1992] 193 ITR 275 (Delhi) wherein the validity of the orders were under challenge, meaning thereby an order recording transfer has to be on the records. The judgment in Subhas Chandra Bhaniramka [2010] 320 ITR 349 (Cal) where it has been held that in case of transfer of file under section 158BD resort has to be made to section 127 also applies in the i....