ANJU MEEL,JAIPUR V. I.T.O. WARD 3(4), JAIPUR, JAIPUR

ITA 741/JPR/2025

AI Insights

The case involves Anju Meel, the appellant, challenging the reassessment order passed by the Income Tax Officer (ITO), Ward 3(4), Jaipur, which was based on proceedings initiated by a non-jurisdictional ITO, Ward 6(3), Jaipur. The reassessment pertained to the assessment year 2008-09, focusing on short-term capital gains from the sale of agricultural lands. The primary legal contention was the validity of the reassessment proceedings initiated by an ITO lacking jurisdiction over the assessee's case. The ITAT found that the reassessment was initiated improperly, leading to the quashing of the order and allowing the appeal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 784799 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 05-05-2025
• Other Referred Cases: Dushyant Kumar Jain Vs. Dy. CIT, Shirishbhai Hargovandas Sanjanwala Vs. ACIT, Pr. CIT Vs. Mohd. Rizwan Prop. M.R. Garments, City Union Bank Ltd. Vs. ACIT, Satish Kumar Khandelwal Vs. ITO, Charu K. Bagadia Vs. ACIT, Ashok Devi Chand Jain Vs. Union of India
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM SINGH CHAUDHARY
• Assessee Lawyers: G.M. MEHTA
• Keywords: Difference of opinion; Change of opinion; Capital asset; Opportunity of being heard; Additional evidence; Reassessment proceedings; Corroborative evidences; Sale consideration of property below Jantri Value; Fair market value; Period of limitation; Reopening of assessment; Capital expenditure; Capital Gains; Valuation report; Assessment record; Competent authority; Time period of passing order; Value adopted by valuation officer
• Section: 148; 143(3); 142(1); 263; 50C

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 741/JP/2025 fu/kZkj.k o\"kZ@Assessment Year : 2008-09 Anju Meel HE-183, Anjani Marg, Hanuman Nagar Extension Khatipura, Jaipur cuke Vs. ITO, Ward 3(4), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACFPM7877C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. G. M. Mehta, CA jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Chaudhary, Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 07/10/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement: 10/11/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM By way of present appeal the assessee – appellant challenges the finding so recorded in the order of the National Faceless Appeal Centre, Delhi [ for short CIT(A) ] dated 07/03/2025. The dispute relates to the assessment year 2008-09. The said order of the ld. CIT(A) arises because the assessee has challenged the assessment order dated 23.03.2016 Printed from counselvise.com 2 ITA No. 741/JP/2025 Anju Meel vs. ITO passed under section 143(3) r.w.s 147 of the Income Tax Act, 1961 [ for short “Act”] by the Income Tax Officer, Ward -04, Jaipur. 2. In this appeal, the assessee has raised following grounds: - “1. Ld. CIT(A) has erred in law and on facts in treating the reassessment proceedings as legally valid which were initiated by non-jurisdictional Assessing Officer, who, after recording reasons, obtained sanction u/s. 151 from non- jurisdictional CIT 1 and issued notices under sections 148,143(2) and 142(1) of I.T. Act and on realizing jurisdictional error, transferred the records to jurisdictional AO who completed reassessment solely on basis of such wrong initiation of reassessment proceedings under sec. 147 of Act. 2. Without prejudice to ground No. (1) above, ld. CIT(A) was not justified in sustaining disallowance of payments on account of (1) Rs.17,450/- paid extra for enhanced DLC value of registration charges, (2) capital expenses of Rs.15,71,149 (4,06,963/-+Rs.11,64,186/-) incurred for vacating sold land from unauthorized occupants for which sworn and uncontroverted as affidavit was submitted which is allowable deduction of short term capital gains. 3. Succinctly, the fact as culled out from the records is that in this case notice u/s 148 of the Act was issued on 23.03.2015 after recording reasons with the prior approval of the competent Authority. The notice u/s. 148 dated 23.03.2015 was issued by the Income Tax Officer, Ward 6(3), Jaipur. [ paper book page 5 ]. The statutory notices u/s. 142(1)/143(2) were also issued by him [ page 6 & 7 ]. The said ITO ward 6(3), Jaipur on being aware about the error for the jurisdiction in the case of the assessee he has transferred the case to ITO, Ward 3(4), Jaipur being the jurisdictional assessing officer. Thus, the facts are that the order that has been passed by the ITO, Ward 3(4) has not recorded any reasons and has passed the Printed from counselvise.com 3 ITA No. 741/JP/2025 Anju Meel vs. ITO order based on the reasons recorded by ITO, Ward 6(3), Jaipur who lacs jurisdiction. Be that it may record reveals that the ITO ward 3(4) on receipt of the transfer the case has completed the case of the assessee making addition of Rs. 30,91,950/- revising income under the head capital gain in the hands of the assessee by an order dated 23.03.2016. 4. Aggrieved from the order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A), NFAC. Apropos to the grounds raised by the assessee, the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below: 6. Ground No.1:- In this ground the appellant has challenged the Jurisdiction of the AO to issue notice u/s 148 of the Act. 6.1 The submission uploaded by the appellant is reproduced in para 5 above. 6.2 I have perused the assessment order, grounds of appeal, and submission filed by the appellant carefully. I find from the assessment order the objection raised by the appellant against reopening of assessment and issue of notice u/s 148 was disposed by the AO by passing speaking order on 25/02/2016 and the same was served on the appellant on 29/02/2016. Thereafter, the appellant had responded the hearing notices issued by the AO and had participated in the assessment proceedings. Therefore, the appellant cannot raise the objection against the jurisdiction of the AO to issue reopen u/s 147 or to issue notice u/s 148 after completion of the assessment in view of the provisions of section 292BB of the Act. In view of the above, objection raised by the appellant is dismissed. 7. Ground No.2:- In this ground the appellant has contested the action of the AO of ignoring the valuation report submitted from the registered valuer. Printed from counselvise.com 4 ITA No. 741/JP/2025 Anju Meel vs. ITO 7.1 The submission uploaded by the appellant is reproduced in para 5 above. 7.2 I have perused the assessment order, grounds of appeal, and submission filed by the appellant carefully. I find from the assessment that the appellant had requested the AO to refer the matter to DVO for valuation of fair market value since the sale consideration was less than the market value adopted by the stamp duty authorities. The AO had made the reference to the DVO, but the DVO had informed that minimum 120 days would be required to submit the report. Therefore, the held that the request making reference to the DVO has been received at the last stage of the assessment proceedings and the assessment was time barring matter hence proceedings cannot be kept pending. The appellant submitted during the course of appellate proceedings that the AO was duty bound to make reference to DVO or the AO should have accepted the valuation done by the registered valuer. It is further submitted the AO is competent to decide the market value on his own. The appellant has relied upon various decisions in support of her contention. I have considered the facts of the case and submission filed by the appellant carefully. I find that as per the provisions section 142A(1) the AO may make reference to valuation officer to estimate the value including fair market value. As per the provisions of section 142A(6), the DVO is bound to submit the report within 6 months from the end of month in which the reference was received. As per provisions of section 142A(7), the AO on receipt of the valuation report may take into account the same after giving opportunity of being heard to the appellant. As per the prevailing Explanation 1(iv) under the first proviso to section 153 of the Act, while computing the limitation period, the period commencing from the date on which the AO makes a reference to the valuation officer u/s 142A(1) and ending with the date on which the valuation report is received by the AO is to be excluded. Thus, I find that the action of the AO proceedings for completion of assessment without waiting for valuation report and ignoring the request made by the appellant was contrary to the provisions section 142A(7) rws section 153 (First provision Explanation 1(iv) of the prevailing provisions). In view of the above, the contention raised by the appellant is found to be acceptable and thus the action of the adopting the sale consideration as per market value is not correct. Therefore, the addition made by the AO to this extent is deleted. The AO is directed to re-compute the capital gain accordingly. Thus, the ground raised by the appellant is allowed. Printed from counselvise.com 5 ITA No. 741/JP/2025 Anju Meel vs. ITO 8. Ground No.3:- In this ground the appellant has contested the action of the AO of disallowing the registration expenses and expenses incurred for vacating the land and levelling the land. 8.1 The submission uploaded by the appellant is reproduced in para 5 above. 8.2 I have perused the assessment order, grounds of appeal, and submission filed by the appellant carefully. I find from the assessment that the AO had allowed the registration expenses to the extent the supporting evidences produced by the appellant. The AO had disallowed the land vacating expenses in absence proper evidences. During the course of appellate proceedings, the appellant submitted that the work of levelling the lands sold and vacating the land from the unauthorised occupants was got done through one Mr. Jaideo Godara whose affidavit was obtained for completion of the work. The appellant by relying the decision of Hon'ble ITAT, Mumbai submitted that the AO was not justified in rejecting the claim of expenses incurred for removal of encroachments. I have considered the facts of the case and submission filed by the appellant. I find that the appellant has not produced any direct evidence in support of the expenses incurred for levelling the land and getting vacated the lands from unauthorized occupancy either during assessment proceedings or during appellate proceedings. Therefore, the genuineness of the expenses incurred is not verifiable. Similarly, the appellant has not submitted the evidences in support of the registration expenses incurred. Therefore, the AO had allowed the expenses to the extent evidences were furnished. In view of the above, the disallowance of expenses made by the AO on account of registration charges and land vacating charges is confirmed. I find that the facts of the case law relied upon by the appellant are not identical to the facts of the present case. Therefore, the said case law is not applicable to the appellant. In view of the above discussion, the ground of appeal raised by the appellant is dismissed. 9. In the result, the appeal is partly allowed. 5. Feeling dissatisfied with the findings so recorded in the order of the ld. CIT(A) the assessee preferred the present appeal on the various grounds Printed from counselvise.com 6 ITA No. 741/JP/2025 Anju Meel vs. ITO as reiterated herein above. In support of the ground raised the ld. AR of the assessee has filed the following written submission; BRIEF FACTS OF CASE: After recording reasons and after obtaining necessary satisfaction from Jt. CIT, Range-6, Jaipur, notice dated 23,03,2015 under section 148 of Income tax Act was issued by non-jurisdictional Assessing Officer, {I.T.O. Wd. 6(3) Jaipur} who also issued statutory notices u/s.. 143(2)/142(1) of Act on 02.06.2015 for the reason, the assessee had sold two agricultural lands (capital assets) giving rise to short term capital gains under the provisions of sec. 50C of Act. Thereafter the reassessment records were transferred to jurisdictional AO {I.T.O. Ward 3(4), Jaipur} who, after issuing notice under sec. 142(1) of Act on 18.01.2016 reassessed the income of assessee, reopened by non-jurisdiction AO. The addition made under section 50C of Act by AO for both the Agricultural lands were deleted by ld. CIT(A) by accepting fair market value of both the properties, valued by Registered Valuer. Since the sale price of both the agricultural lands were lower than evaluated value as per valuation of Sub- Registrar, (as both the plots were of uneven level and were in occupation of unauthorized persons) therefore, assessee had to pay additional amount of stamp and registration. For selling both the lands, assessee had to incur extra expenses for leveling the land and getting them vacated from unauthorized occupants. But both the lower authorities did not allow the capital expenditures and extra payment for registration on purchase for calculation of short term capital gains. GROUNDS OF APPEAL: Ground No. (1) Ld. CIT(A) has erred in law and on facts in treating the reassessment proceedings as legally valid which were initiated by non- jurisdictional Assessing Officer, who, after recording reasons, obtained sanction u/s. 151 from non-jurisdictional CIT and issued notices under sections 148, 143(2) and 142(1) of I.T. Act and on realizing jurisdictional error, transferred the records to jurisdictional AO who completed reassessment solely on basis of such wrong initiation of reassessment proceedings under sec. 147 of Act: For reassessment following happenings/ notices were issued: S.No. Date Issued under sec. Relevant Authority Paper book page 1 23.03.2015 Reasons recorded I.T.O. Ward 6(3), Jaipur 4 Printed from counselvise.com 7 ITA No. 741/JP/2025 Anju Meel vs. ITO 2. 23.03.2015 Notice u/s. 148 I.T.O., Ward 6(3), Jaipur 5 3. 02.06.2015 Notice u/s. 143(2) I.T.O. Ward 6(3), Jaipur 6. 4. 02.06.2015 Notice u/s. 142(1) I.T.O. Ward 6(3), Jaipur 7 5. 07.07.2015 Notice u/s. 142(1) I.T.O. Ward 6(3), Jaipur 8 It is settled law that where the reassessment proceedings are initiated by non- jurisdictional AO, the proceedings are void ab-initio. Reliance is placed on following pronouncements of higher judicial authorities (giving head notes): (i) Dushyant Kumar Jain Vs. Dy. CIT (2016) 288 CTR (Del) 124 & (2016) 381 ITR 428 (Del): Reassessment; Notice issued by AO having no jurisdiction. Notice u/s. 148 was invalid as being issued by AO other than the one who had jurisdiction over case of the assessee. (ii) Shirishbhai Hargovandas Sanjanwala Vs. ACIT (2017) 396 ITR 167 (Guj): Competent authority- jurisdiction- notice for reassessment issued by authority other than authority normally Assessing Officer- not mere irregularity or curable defect – defective issuance of notice and not service of notice not curable– to be quashed. (iii) Pr. CIT Vs. Mohd. Rizwan Prop. M.R. Garments (2018) 11 ITR-OL 149 (All): Notice u/s. 148 – validity- condition precedent. Notice issued by AO who had no jurisdiction. Notice void ab-initio. Not a defect curable under section 292BB. (iv) City Union Bank Ltd. Vs. ACIT (2020) 425 ITR 475 (Mad): Notice issued without jurisdiction. Existence of alternate remedy would not bar issue of writ to quash the notice. (v) Satish Kumar Khandelwal Vs. ITO (2021) 61 TAX WORLD 71 (JPR): An order passed by an officer having no jurisdiction to pass such order is void ab- initio and deserves to be annulled. The defect in the order is not curable and it cannot be rectified even by sending the matter back to the concerned officer. Further since the notice u/s. 148 is issued solely on the basis of information received from DIT (I & CI), Jaipur without making any further enquiry and without application of mind, reopening of the assessment is not valid. (vi) Charu K. Bagadia Vs. ACIT (2022) 327 CTR (Mad) 419/(2022) 448 ITR 563 (Mad): Notice under section 148 by non-jurisdictional AO. First respondent, who recorded the reasons for reopening the assessment under section 148(2), has no jurisdiction over the assessee, to issue notice under sec. 148(1)- Admittedly, no notice under sec. 148 was issued by the second respondent, who is the jurisdictional AO- Therefore, the notice issued by the second respondent under section 143(2) r/w. s. 129 cannot be allowed to be continued. Printed from counselvise.com 8 ITA No. 741/JP/2025 Anju Meel vs. ITO (vii) Ashok Devi Chand Jain Vs. Union of India (2023) 452 ITR 43 (Bom): Reassessment- Notice- jurisdiction. Notice issued by officer who had no jurisdiction over assessee. Notice defective and invalid. Notice and order rejecting objection of assessee set-aside. Therefore, the initiation of proceedings u/s. 147 by issuance of notice under section 148 of I.T. Act by non-jurisdictional Assessing Officer, on the basis of which reassessment was completed by the jurisdictional Assessing Officer is bad in law and consequently the reassessment is void ab-initio. Ground No. (2) Without prejudice to ground No. (1) above, ld. CIT(A) was not justified in sustaining disallowance of payments on account of (1) Rs.17,450/-* paid extra for registration charges, (2) capital expenses of Rs.15,71,149 (4,06,963/- + Rs.11,64,186/-) incurred for vacating sold land from unauthorized occupants for which sworn affidavit was submitted for consideration and in allowable deduction of short term capital gains. (*correct amount is Rs.7,450/-) Without prejudice to ground No. (1) hereinabove, capital expenditure incurred by the assessee on purchase/sale of Khasara No. 951 and 959 was allowed in part only and nil for other Khasara Nos. 945 to 950, 953 to 955,957,958 & 961 as per following details: Khasra No. 951 and 959 S.No. Head of Expenditure. Total payments Allowed by AO Difference allowable P.B. page No. 1 Stamp & Registration 42,330 (relevant PB 14) 34,880 (AO page 5) 7,450 9 to 18 2. Payment for leveling and vacating land 4,06,963 Nil 4,06,963 19 & 20 Khasra No. 945 to 950, 953 to 955,957,958 & 961 S.No. Head of Expenditure. Total payments Allowed by AO Difference allowable P.B. page No. 1. Payment for leveling and vacating land 11,64,186 Nil 11,64,186 21 & 22 No deductions of stamp duty and registration charges of Rs.7,450/- (P.B. page 14) paid and capital expenses incurred in leveling and vacating the above Khasaras of land was allowed by both the lower authorities which are allowable under sec. 48 (ii) of I.T. Act in computation of short term capital gains. Printed from counselvise.com 9 ITA No. 741/JP/2025 Anju Meel vs. ITO 6. To support the contention so raised in the written submission reliance was placed on the following evidence / records : S.No. Particulars/details/proofs Paper book page 1. Witten synopsis in support of ground of appeal. 1 to 3 2. Reassessment proceedings by non-jurisdictional A.O. (ITO Ward 6(3), Jpr) (1) Reasons recorded for initiating proceedings u/s. 147 (2) Notice dated 23.03.2015 under sec. 148 of I.T. Act (3) Notice dated 02.06.20215 under sec. 143(2) of Act (4) Notice dated 02.06.2015 under section 142(1) of Act (5) Notice dated 18.01.2016 under section 142(1) of Act 4 5 6 7 3. Proof of payment of stamp and registration (relevant P.B. page 14) 9 to 18 4. Proof of payments made for leveling and vacating trespassers (I) 19 & 20 5. Proof of payments made for leveling and vacating trespassers (II) 21 & 22 6.1 Ld. AR of the assessee also relied upon the following judicial precedent; Case laws relied upon: S.No. Cases referred to in written synopsis P.B. page No. 1 Dushyant Kujmar Jain Vs. Dy. CIT & Anr. (2016) 288 CTR (Del) 124 1 to 5 2. Shirishbhai Hargovandas Sanjanwala Vs. ACIT (2017) 396 ITR 167 (Guj) 6 to 9 3. Satish Kumar Khadelwal Vs. ITO (2021) 213 TTJ (JP)584 10 to 24 4. Ashok Devi Chand Jain Vs. Union of India & Ors (2023) 452 ITR 43 (Bom) 25 to 27 5. Charu K. Bagadia Vs. ACIT (2022) 327 CTR (Mad) 419 28 to 40 6. Pr. CIT Vs. Mohd. Rijwan Prop. M.R. Garments (2018) 11 ITR OL149 (All) 41 to 44 7. The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that the assessee since in the present case the assessee has raised the jurisdiction issue the same should be decided first before going into the merits of the dispute. He Printed from counselvise.com 10 ITA No. 741/JP/2025 Anju Meel vs. ITO submitted that in the case notice u/s. 146 was issued on 23.03.2015 by the ITO, Ward 6(3), Jaipur, whereas the jurisdiction lies with the ITO, Ward 3(4), Jaipur. 8. The ld. DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). 9. We have heard the rival contentions and perused the material placed on record. The assessee has challenged the present appeal on two grounds. Ground no. 1 relates to the technical issue and ground no. 2 relates to the merits of the dispute. Since ground no. 1 goes into the merits of the dispute we take up that ground no. 1 first. The brief facts related to the dispute are that the in the case of the assessee the case of notice u/s 148 of the Act was issued on 23.03.2015 after recording reasons with the prior approval of the competent Authority. The notice u/s. 148 dated 23.03.2015 was issued by the Income Tax Officer, Ward 6(3), Jaipur. [ paper book page 5 ]. The statutory notices u/s. 142(1)/143(2) were also issued by him [ page 6 & 7 ]. The said ITO ward 6(3), Jaipur on being aware about the error for the jurisdiction in the case of the assessee he has Printed from counselvise.com 11 ITA No. 741/JP/2025 Anju Meel vs. ITO transferred the case to ITO, Ward 3(4), Jaipur being the jurisdictional assessing officer. Thus, the facts are that the ld. AO who passed the order has not recorded any reasons and has passed the order based on the reasons recorded by ITO, Ward 6(3), Jaipur who lacs jurisdiction. Therefore, the ld. AR of the assessee relying on the various decision as cited in the paper book submitted that impugned order passed by the assessing officer lac jurisdiction and thereby the ld. CIT(A) has not appreciated that aspect of the matter. The bench noted that the apple discord as raised in the ground no. 1 is whether the law permits to record the reasons by non jurisdictional assessing officer or not. The issue has already been decided as cited by the ld. AR of the assessee by the Delhi High Court and various other Hon’ble High Courts. The decision as relied upon by the ld. AR of the assessee wherein the Hon’ble Delhi High Court in the case of Dushyant Kumar Jain Vs. DCIT [ 66 taxmann.com 126(Delhi) ] has held as under : 12. One of the main points urged in the present petition is that the reopening of the assessment sought to be made under Section 148 of the Act is bad in law since the notice dated 14th March, 2014 for AY 2007-08 had been issued and the reasons for re-opening had been recorded by the ITO Ward 39(2), who was not the AO as far as the Petitioner was concerned for the AY in question. As far as the second impugned notice dated 23rd June, 2014 is concerned it was issued by the AO of the Petitioner but well beyond the period of limitation in terms of Section 149(1)(b) of the Act which expired on 31st March, 2014. 13. In the counter affidavit filed on behalf of the Respondent, the above objections are sought to be met by stating in para nos.7 and 8 as under: Printed from counselvise.com 12 ITA No. 741/JP/2025 Anju Meel vs. ITO \"7. It is pertinent to mention that the notice u/s.148 of the Act was a valid notice and was issued as per the procedure laid down in the I.T. Act, 1961. The notice u/s 148 was issued by the ITO Ward No. 39(2) New Delhi on 14.3.2014 who was the legitimate Assessing Officer as far as the jurisdiction is concerned. As per Section 2(7A) of the Act, the Assessing Officer means the Assistant Commissioner of Income Tax, Deputy Commissioner of Income Tax, Additional Commissioner of Income Tax or Deputy Director of Income Tax or the Income Tax Officer who is vested with the relevant jurisdiction by virtue of direction or orders issued under sub- section (1) or sub-section (2) of Section 120 or any other provision of the Income Tax Act, and the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under clause (b) of Sub- section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under the Act. The ITO Ward No.39(2) New Delhi has issued the notice u/s 148 after recording the reasons for reopening. A copy of the said reasons was also sent to the Assessee along with the notice. 8. Subsequently the file was transferred to Assistant Commissioner of Income Tax Circle 39(1) New Delhi as the income was more than Rs.20 lakhs, and the Assistant Commissioner of Income Tax Ward 39(1) had again issued the notice dated 23.6.2014 under section 148.\" 14. It is further averred in the counter affidavit that the grounds urged by the Assessee are 'frivolous' 'untenable' and 'unsustainable'. 15. What is evident from the counter affidavit filed by the Respondent is a clear admission that the officer who issued the notice dated 14th March, 2014, and recorded the reasons for re-opening the assessment, i.e. the ITO Ward 39(2) was not the AO of the Assessee. That single fact in itself vitiates the reopening of the assessment. What is also evident is that, perhaps realising the error, a subsequent notice dated 23rd June 2014 under Section 148 was issued by the AO of the Assessee. However, it was beyond the deadline of 31st March, 2014 under Section 149(1)(b) of the Act. 16. The reasons given by the Department in its counter affidavit do not in any way explain the patent illegality in invoking the powers under Section 148 of the Act for reopening the assessment of the Assessee for AY 2007- 08. The mere fact that the definition of an AO in terms of Section 2(7-A) of the Act al includes a DCIT and other superior officers or an ITO of some other ward who may be vested with the relevant jurisdiction by virtue of orders issued under Section 120 (1) or Section 120 (2) of the Act will not make a difference to the above legal position. The reason is not far to seek. It is only the AO who has issued the original assessment order dated 13th April 2009 for AY 2007-08 under Section 143 (3) of the Act who is empowered to exercise powers under Section 147/148 to re-open the assessment. This is because he alone would be in a position to form reasons to believe that some income of that particular AY has escaped assessment. This again cannot be based on a mere change of opinion. Further, in terms of Section 151 of the Act such a move will have to have the prior approval of the CIT. Under the scheme of the Act, if a superior officer forms an opinion that the original assessment order is prejudicial to the interests of the Printed from counselvise.com 13 ITA No. 741/JP/2025 Anju Meel vs. ITO Revenue, recourse can be had to Section 263 of the Act. In any event the question of an ITO who is not the AO who passed the original assessment order under Section 143 (3) of the Act for particular AY, exercising the powers under Sections 147/148 of the Act to re-open that assessment does not arise. 17. Consequently, this Court quashes the notices dated 14th March 2014 and 23rd June 2014 as well as the order dated 28th January, 2015 passed by the DCIT rejecting the objections of the Petitioner. The writ petition is allowed and the application is disposed of in the above terms but, with no order as to costs. Even our own Rajasthan High Court in the case of Deep Channel Kothari vs. CIT [ 35 Taxman 223(Rajasthan) ] where in the High Court held that ; 6. It is well settled law that the objection regarding lack of jurisdiction is decided first. Only after its decision holding that the Court or Tribunal has jurisdiction, other questions relating to the merits of the case arise for decision otherwise not. 7. The Tribunal has power to take additional evidence. After taking evidence which is considered necessary, the said point regarding lack of jurisdiction can well be decided by the Tribunal. As such it is neither necessary nor expedient for this Court to decide the remaining questions. The case observes to be sent back to the learned Tribunal for first deciding the said point regarding the lack of jurisdiction. 8. Question No. 1 is answered in the affirmative and in favour of the assessee. Remaining questions need not be answered because of our answer to question No. 1. Respectfully following that binding precedent we consider ground no. 1 raised by the assessee and thereby we quash the impugned order. In the light of that we have considered technical ground, the second Ground no 2 in respect of the merits of the disputes becomes academic. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 10/11/2025. Printed from counselvise.com 14 ITA No. 741/JP/2025 Anju Meel vs. ITO Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:-10/11/2025 *Ganesh Kumar, Sr. PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Anju Meel, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 3(4), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 741/JP/2025) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar Printed from counselvise.com "