TaxTMI 
TaxTMI 
2026 (3) TMI 1399
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....'ble Supreme Court has laid down that failure to consider a jurisdictional High Court judgment constitutes a rectifiable mistake u/s. 254(2). ii. Whether the Hon'ble ITAT erred in law and on facts was justified in ignoring the CBDT Instruction NO.1/2011 dated 31.01.2011 thereby allowing the appeal of the assessee. The non-consideration of the above instruction constitutes an error apparent from the record. iii. The order of ITAT is erroneous both in law and on facts. iv. Any other ground that may be adduced at the time of hearing." 3. The Tribunal in its wisdom and on proper examination of the documents placed on record and relying on various judicial pronouncements had provided relief to the assessee observing that the return of income was filed by the assessee above Rs. 10 lacs, for which, the jurisdiction was vested only with the Dy./ACIT-3(1), Raipur and not with ITO, Ward-Mahasamund. That since in the present case, the assessment has been framed u/s. 143(3) of the Act dated 22.12.2018 by the ITO, Ward-Mahasamund who lacked inherent valid jurisdiction, therefore, the same is held invalid, void ab initio, and the order of assessment is quashed. The ....
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....ances of the case and found that the assessee filed its return of income declaring the income to be nil. Subsequently, notice under section 143(2) was issued on 10.9.2015 and notice under section 142(1) dated 13.6.2016 was issued along with the questionnaire. The assessee contended that the notices were without jurisdiction and relied upon section 120 of the Act. In this regard, the assessee referred to the notification issued by the CBDT in Instruction No.1 of 2011. The learned Tribunal took into consideration the facts of the case and found that the assessment has been framed by the Assessing Officer, who inherently lacks jurisdiction to do so. 6. The learned Tribunal took note of the decision of a Coordinate Bench of the learned Tribunal in the case of Bhagyalaxmi Conclave (P) Ltd. vs. DCIT dated 3.2.2021. Apart from other decisions and allowed the assessee's appeal. the revenue had challenged the order passed in the case of Bhagyalaxmi Conclave (P) Ltd. before this court in ITAT/221/2022 etc. and by a judgment reported in 2022 (12) TMI 1514, the appeal filed by the department was dismisses one of the questions framed is identical to the substantial questions of law....
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....ed by ITO, Ward-9(4), Kolkata. It is true that subsequently the assessment has been framed by DCIT, Circle-9(2), Kolkata but the point in dispute is that on date of issuing a notice u/s. 143(2) of the Act, whether the ITO, Ward- 9(4), Kolkata was having a valid jurisdiction to issue such notice u/s. 143(2) of the Act." 5. The above factual position recorded by the Tribunal is not in dispute. Therefore, we are of the clear view that the Tribunal rightly allowed the assessee's appeal and quashed the scrutiny proceedings as defect in issuance of notice is incurable as it goes to the root of the matter." 9. Also, the Hon'ble High Court of Bombay in the case of Ashok Devichand Jain Vs. Union of India, (2023) 151 taxmann.com 70 (Bombay) on the similar issue had held and observed as follows: "4. We have considered the affidavit in reply of one Mr. Suresh G. Kamble, ITO who had issued the notice under section 148 of the Act. Said Mr. Kamble, ITO, Ward 12(3)(1), Mumbai admits that such a defective notice has been issued but according to him, PAN of Petitioner was lying with ITO Ward (12)(3)(1), Mumbai and it was not feasible to migrate the PAN having returned ....
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....e above Rs. 10 lacs, for which, the jurisdiction was vested only with the Dy./ACIT-3(1), Raipur and not with ITO, Ward-Mahasamund. That since in the present case, the assessment has been framed u/s. 143(3) of the Act dated 22.12.2018 by the ITO, Ward-Mahasamund who lacked inherent valid jurisdiction, therefore, the same is held invalid, void ab initio, and the order of assessment is quashed. 13. That once the assessment order is quashed, then all other subsequent proceedings becomes non-est in the eyes of law. 14. As per the aforesaid terms even without going into the merits of the matter on this legal premise itself the appeal of the assessee is allowed. Since this legal ground is answered in favour of the assessee, therefore, all other grounds on merits including any other legal grounds if any, becomes academic only. 15. In the result, appeal of the assessee is allowed." 4. Coming to the contents of the miscellaneous application of the Department, I am of the considered view that the Revenue in the garb of the present miscellaneous application has sought review of the order of the Tribunal which is not permissible within the purview of Section 254(2)....