TaxTMI 
TaxTMI 
2026 (4) TMI 1384
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....d. AO u/s 69 of the Act is illegal and not tenable under the law. 4. That the addition of Rs. 5,15,35,068/- made by Ld. AO is not sustainable under the law because no Show Cause notice allowing opportunity of being heard proposing stilted addition was issued by Ld. AO during the course of assessment proceedings. 5. That the Ld. AO grossly erred in law and in facts of the case in making addition and Ld. CIT(A) grossly erred in confirming the addition of Rs. 5,15,.35,068/- u/s 69 of tile Act ignoring the evidences and explanations filed by the assessee for explaining the source of the investment without bringing any evidence on record to the contrary OR placing the same before the assessee for his rebuttal. 6. That the assessment order passed by Ld. AO u/s 143(3) of the Act and the appellate order passed by Ld. CIT(A) are bad in law and are passed in contravention of prevailing law as well as facts of the case, therefore liable to be annulled. 7. That the assessment proceedings undertaken and completed in case of assessee u/s 143(3) of the Act is void-ab-initio invalid due to issue of notice u/s 143(2) of the Act by non-jurisdictional AO. ....
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.... by the assessee in response to information sought under the RTI Act, 2005 wherein the Assessing Officer has informed the assessee that assessment record in assessee's case was transferred to Deputy/Assistant Commissioner of Income-tax, Circle 72 (1), New Delhi vide this office letter no.725 dated 14.09.2017. Ld. AR submitted that from the above order, the case of the assessee was transferred from Gurgaon to New Delhi. In this regard, ld. AR also brought to our notice page 55 of the paper book which is the notice issued u/s 142 (1) of the Act by the jurisdictional Assessing Officer i.e. ACIT, Circle 72 (1), New Delhi for the AY 2015-16 and further intimated that this notice may also be considered as intimation for change of incumbent u/s 129 of the Act. Further ld. AR brought to our notice page 1 of the paper book which is the return of income filed by the assessee for AY 2015-16 with the details of designation of AO i.e. Circle 72 (1), Delhi, the return was filed on 30.08.2015. He further brought to our notice page 23 of the paper book which is the return of income filed by the assessee for AY 2016-17 indicating the designation of the Assessing Officer as Circle 72 (1), Delhi. Sim....
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....transferred back to the jurisdictional Assessing Officer, it is transferred on the behest of the assessee, therefore, there is no requirement to pass a separate order u/s 127 of the Act. He heavily relied on the orders passed by the lower authorities. 5. Considered the rival submissions and material placed on record. We observed that the assessee is habitually filing his return of income with Circle 72 (1), Delhi as the jurisdictional AO and his assessments were completed by Circle 72 (1). For the impugned AY 2015-16, based on the address of the assessee given in the return of income, the case of the assessee was selected for limited scrutiny and notice u/s 143(2) was issued by Circle 4 (1), Gurgaon and several notices were issued by the AO from Gurgaon. Since there was no response from the assessee, a final opportunity of being heard prior to initiation of penalty proceedings u/s 271(1)(b) of the Act was issued to the assessee vide letter dated 31.08.2017. In response, assessee vide letter dated 14.09.2017 intimated to the Assessing Officer that his original jurisdiction lies with territorial jurisdictional AO at Circle 72 (1), Delhi. Subsequently on 18th September, 2017, juris....
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....erritorial jurisdiction over the case of assessee. It is further seen that return of income for the immediately preceding year was filed with DDIT, Circle- 2(2)2, International Taxation, New Delhi on 21.02.2014. The claim of assessee is that she is a non-resident and this fact was duly disclosed in the return of income filed and accepted by the Revenue in the order passed u/s 143(1) of the Act. Further from the perusal of para 2 of the order, AO observed that assessee is a non-resident. It is also seen that assessee during the course of assessment proceedings, objected the proceedings carried out by ITO ward 30(2) Delhi and stated that jurisdiction lies with AO, International Taxation. In the instant case, first notice u/s 142(1) along-with query letter was issued by the ITO, Ward-30(2), New Delhi with whom details were filed by the assessee in terms of letter dated 08.11.2016 when the assessee has requested the AO for transfer of the case to the correct jurisdiction. 14. As observed above, there are 04 AOs in the case of the assessee, First, ITO, Ward-22(4), New Delhi with whom return was filed having territorial jurisdiction. Second, the ITO, Ward-28(4), New Delhi who is....
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.... the judgement of Hon'ble Calcutta High Court in the case of PCIT vs Nopany & Sons (supra) wherein Hon'ble High Court held that notice issued u/s 143(2) by the AO who at that relevant point, had no jurisdiction over the assessee, thus, the notice issued u/s 143(2) of the Act had no jurisdiction. 18. Further, the Hon'ble Supreme Court in the case of ACIT vs Hotel Blue Moon (supra) has held that omission on the part of the AO to issue notice u/s 143(2) cannot be a procedural irregularity and the same is not curable. The Hon'ble Allahabd High Court in the case of CIT vs M.I.Builders (P) Ltd. [2012] 349 ITR 271 (Allahabad) held that the notice issued by non-jurisdictional AO is invalid. 19. In case where the jurisdiction is transferred from AO who is not having jurisdiction over the assessee to the AO having jurisdiction, the same could be done through an order for transfer of jurisdiction u/s 127(2) of the Act which has not been done in the instant case. Transfer order is statutorily required to be passed by the prescribed authority u/s. 127 of the Act, and an A.O cannot on his own transfer an income tax file to another officer. 20. Even otherwise, transfer ....
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.... or after the completion of the assessment, whichever is earlier. It is a fact that the assessee filed her returns of income with ITO, Ward-2(3), Gurgaon from AY 2014-15 on 17.03.2015, for AY 2013-14 on 18.03.2015 and for AY 2015-16 on 04.08.2015, which was revised under Section 139(5) on 09.08.2015. This fact is within the knowledge of the ITO, Ward-1(4), Dibrugarh and this is proved by the very order sheet entry recorded while issuing notice under Section 143(2) of the Act because he notes that the notice is being sent by speed post on the address available in the assessment records. The address available in the assessment records is "F2484, PalamVihar, Gurgaon, Haryana" and which is the address noted on the notice under Section 143(2) even.I noted that notice under Section 143(2) was issued by ITO, Ward-1(4), Dibrugarh, who was not having any jurisdiction on the assessee by way of transfer order under Section 127 or as territorial jurisdiction under Section 124(1) of the Act because assessee is regularly filing her return of income with ITO, Ward-2(3), Gurgaon. Simplicitor ITO, Ward1(4), Dibrugarh was having PAN jurisdiction as the assessee's husband being Major General in Army ....
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....omoto transferred the file to ITO, Ward-2(3), Gurgaon as if he has entered into the shoes of Chief Commissioner or the Commissioner of Income Tax. The case relied upon by the learned Counsel of Hon'ble Delhi High Court in the case of ATS Promoters and Builders Pvt.Ltd. Vs. Chief CIT - 308 ITR 65 (Delhi) has set aside the transfer by taking the view that the transfer of assessee's case from Delhi to Meerut was without disclosing proper application of mind to the objections raised by the assessee. Hence, the impugned notice issued under Section 143(2) of the Act and thereafter transferring the same to ITO, Ward2(3), Gurgaon is in clear violation of the provisions of Section 127 and, in view thereof, being no transfer order passed by the Chief Commissioner or Commissioner, the impugned assessment order passed without issuance of notice under Section 143(2) by the jurisdictional Assessing Officer is invalid and void ab-initio. Accordingly, I agree with the learned Judicial Member quashing the assessment order passed by ITO, Ward-2(3), Gurgaon in the absence of notice under Section 143(2) of the Act by the jurisdictional AO. 9. Now, in view of the above discussion and legal pos....