Sri Ashok Kumar periwal, Guntur V. The ITO, Guntur

CO 51/VIZ/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3826 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 07-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEBAKUMAR SONOWAL
• Keywords: Opportunity of being heard; Validity of assessment; Assessment record; Reason to believe
• Section: 143(3); 148; 144; 11; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , ! . . # , & BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ I.T.A.NO.339/VIZ/2016 ( / ASSESSMENT YEAR:2013-14 ) INCOME TAX OFFICER WARD-1(1) GUNTUR VS. SRI ASHOK KUMAR PERIWAL H.NO.25-16-179/6 OPP.OLD MIRCHI YARD GUNTUR [PAN :AHOPP2643M] ( / APPELLANT) ( / RESPONDENT) CROSS OBJECTION NO.51/VIZ/2016 ARISING OUT OF I.T.A.NO.339/VIZ/2016 ( / ASSESSMENT YEAR:2013-14 ) SRI ASHOK KUMAR PERIWAL H.NO.25-16-179/6 OPP.OLD MIRCHI YARD GUNTUR [PAN :AHOPP2643M] INCOME TAX OFFICER WARD-1(1) GUNTUR ( / APPELLANT) ( / RESPONDENT) / REVENUE BY : SHRI DEBA KUMAR SONOWAL, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 03.05.2018 / DATE OF PRONOUNCEMENT : 09.05.2018 2 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE AND CROSS OBJEC TION BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS)[CIT(A)]-1, GUNTUR VIDE I.T.ANO.254/CIT(A) -1/GNT/2014-15 DATED 30.03.2016 FOR THE ASSESSMENT YEAR 2013-14. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX ( APPEALS), GUNTUR IS ERRONEOUS IN LAW OR FACTS OR BOTH. 2. THE LD.CIT(A)-1, GUNTUR DIRECTIONS TO REVERIFY T HE ISSUES AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ARE NOT ACCEPTABLE IN VIEW OF THE SEC.251 OF THE I.T.ACT, W HICH DEALS WITH POWERS OF THE COMMISSIONER OF INCOME TAX (APPEALS). SECTION 251 OF THE I.T.ACT, 1961, THE POWERS OF COMMISSIONER OF IN COME TAX (APPEALS) ARE REPRODUCED AS UNDER : 2 251(1) IN DISPOSING OF AN APPEAL, THE COMMISSI ONER (APPEALS) SHALL HAVE THE FOLLOWING POWERS : (A) IN AN APPEAL AGAINST THE ORDER OF ASSESSMENT, HE MAY CONFIRM, RE DUCE, ENHANCE OR ANNUL THE ASSESSMENT. 3. ANY OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 3. THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 0 7.09.2013 DECLARING THE TOTAL INCOME OF RS.8,51,190/-. THE CASE WAS SE LECTED FOR SCRUTINY AND 3 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR THE NOTICE U/S 143(2) WAS ISSUED BY THE ITO, WARD-1 (1), SILIGURI ON 02.09.2014 WHICH WAS SERVED ON THE ASSESSEE ON 08.0 9.2014. THE ASSESSEE FILED OBJECTION BEFORE THE ITO, SILIGURI CHALLENGIN G THE JURISDICTION HENCE THE CASE WAS TRANSFERRED TO ITO, WARD-1 (1), GUNTUR WHO HAS ISSUED NOTICE U/S 143(2) ON 14.11.2014 AND THE SAME WAS SERVED ON 20.11.2014. THE ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 143(3) ON T OTAL INCOME OF RS.15,28,92,480/-. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE W ENT ON APPEAL BEFORE THE CIT(A) CHALLENGING THE VALIDITY OF ASSESSMENT M ADE U/S 143(3) STATING THAT THE ASSESSMENT MADE U/S 143(3) IS INVALID SINC E THE NOTICE ISSUED BY ITO WARD-1(1), GUNTUR ON 14.11.2014 IS BARRED BY LI MITATION. THE ASSESSEE HAS ALSO CHALLENGED THE VALIDITY OF NOTICE ISSUED U /S 143(2) BY THE ITO, WARD-1(1), SILIGURI AND THE ASSESSMENT MADE U/S 144 , APART FROM THE MERITS OF THE CASE. THE LD.CIT(A) HELD THAT THE IS SUE OF NOTICE AND THE ASSESSMENT MADE U/S 144 IS VALID AND ON MERITS, T HE LD.CIT(A) REMITTED THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECT ION TO VERIFY THE BOOKS OF ACCOUNTS AND THE PROFIT AND LOSS ACCOUNT AND DETERM INE THE INCOME AFTER GIVING THE OPPORTUNITY TO THE ASSESSEE. 4 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR 5. AGAINST THE ORDER OF THE LD.CIT(A), THE REVENUE FILED APPEAL BEFORE THIS TRIBUNAL CHALLENGING THE POWERS OF LD.CIT(A) U /S 251 TO REMIT THE MATTER BACK TO THE FILE OF THE AO. 6. THE ASSESSEE FILED CROSS OBJECTION STATING THAT THE ASSESSMENT ORDER FRAMED U/S 143(3) IS BARRED BY LIMITATION. THE CRO SS OBJECTIONS RAISED BY THE ASSESSEE IN THIS CASE READS AS UNDER : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1, GUNTUR OUGHT TO HAVE HELD THAT THE ASSESSMENT BASED ON THE NOTICE U/S 143(2) DT 14.11.2014 ISSUED BEYOND THE STIPULAT ED TIME PERIOD IS BARRED BY LIMITATION. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS)-1, GUNTUR ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN MAKING THE ASSESSMENT E X-PARTE U/S 144 OF THE ACT. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -1, GUNTUR OUGHT TO HAVE DELETED THE ENTIRE ADDITIONS O F RS 15,20,36,691/- MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT MADE U/S 143(3) R W S 144 OF THE ACT, DT: 17-03-201 5. 4. ANY OTHER GROUND OF CROSS-OBJECTION THAT MAY BE RAISED AT THE TIME OF HEARING. 7. THE REVENUES CASE IS THAT THE LD.CIT(A) HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO THE AO TO VERIFY THE TRADING AND PROFIT AND LOSS ACCOUNT AND RECOMPUTE THE INCOME. AS PER SECTI ON 251 OF I.T.ACT, THE LD.CIT(A) IS NOT VESTED WITH SUCH POWERS. THE ASSE SSEES CASE IS THAT THE 5 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR ASSESSEE IS FILING THE RETURN OF INCOME REGULARLY W ITH ITO, WARD-1(2), GUNTUR. FOR THE IMPUGNED ASSESSMENT YEAR ALSO, THE ASSESSEE HAD FILED THE RETURN OF INCOME SHOWING THE JURISDICTION OF THE IT O AS WARD-1(2), GUNTUR. THE ASSESSEE IS CARRYING ON THE BUSINESS IN GUNTUR IN ANDHRA PRADESH AND THE JURISDICTION OF THE AO VESTS WITH ITO, GUNTUR. THE LD.AR ARGUED THAT THE ITO, WARD-1(1), SILIGURI HAS ISSUED NOTICE U/S 143( 2) WHICH IS WITHOUT JURISDICTION AND INVALID, HENCE TO BE TREATED AS N ON-EST. THE ITO, WARD- 1(1), GUNTUR HAS ISSUED NOTICE ON 14.11.2014 WHICH WAS SERVED ON THE ASSESSEE ON 20.11.2014 AND BARRED BY LIMITATION PER IOD SPECIFIED IN PROVISO TO SECTION 143(2). THEREFORE, ARGUED THAT THE NOTICE ISSUED BY THE AO IS BARRED BY LIMITATION AND THE CONSEQUENT ASSE SSMENT IS INVALID AND REQUIRED TO BE QUASHED. THE LD.AR SUBMITTED THAT T HE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) WAS 30.09.2014. SINCE THE TEC HNICAL ISSUE RAISED BY THE ASSESSEE IN CROSS OBJECTIONS IS HAVING BEARING ON THE ENTIRE ASSESSMENT AND THE GOES TO THE ROOT OF ASSESSMENT, WE ARE OF T HE VIEW THAT THE CROSS OBJECTION IS TO BE ADDRESSED FIRST. ACCORDINGLY, W E TAKE UP THE GROUND NO. 1 OF CROSS OBJECTION. 8. IN THIS CASE, ITO, WARD-1(1), SILIGURI HAS ISSUE D NOTICE U/S 143(2) ON 03.09.2014 WHICH WAS SERVED ON THE ASSESSEE ON 08.0 9.2014. THE ASSESSEE 6 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR SUBMITTED THE REPLY TO THE ITO, WARD-1(1), SILIGURI STATING THAT THE JURISDICTION OVER THE ASSESSEE VESTS WITH THE ITO, WARD 1(2), GUNTUR, HENCE THE NOTICE ISSUED U/S 143(2) BY ITO WARD-1(1), SILI GURI IS VOID-AB-INITIO. THE LD.AR CHALLENGED THE VALIDITY OF NOTICE ISSUED BY ITO, WARD-1(1), SILIGURI. THE LD.DR SUBMITTED THAT ITO, WARD-1(1), SILIGURI IS EMPOWERED TO ISSUE THE NOTICE AS PAN WAS ATTACHED WITH THE IT O, WARD-1(1), SILIGURI. THE LD.DR SUBMITTED THAT THE NOTICE WAS ISSUED BY THE COMPUTER SYSTEM OF THE DEPARTMENT AS PER PREVAILING PRACTICE OF ATTAC HMENT OF PAN. THE DR ARGUED THAT THERE IS NO ERROR IN THE NOTICE ISSUED U/S 143(2) OF THE ACT AND SUBMITTED THAT SINCE THE NOTICE IS ISSUED WITHIN TH E TIME LIMIT ALLOWED U/S 143(2), THE SAME SHOULD BE HELD VALID. 9. ON THE OTHER HAND, THE LD.AR ARGUED THAT THE NOT ICE HAS TO BE ISSUED BY THE JURISDICTIONAL AO AND THE JURISDICTION CANNO T BE CONFERRED ON ANOTHER OFFICER WITHOUT HAVING PASSED THE ORDERS U/ S 127 OF THE ACT. THEREFORE, ARGUED THAT THE NOTICE ISSUED U/S 143(2 ) BY THE ITO,SILIGURI IS INVALID. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THE ASSESSEE IS REGULARLY ASSESSED WITH TH E ITO, WARD-1(2), GUNTUR. 7 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR HE IS RESIDING AND CARRYING ON THE BUSINESS IN GUNT UR AND FILED THE RETURNS OF IN COME SHOWING THE AO AS ITO, GUNTUR. THEREFOR E, TERRITORIAL JURISDICTION AND THE REGULAR JURISDICTIONS ARE VEST ED WITH THE ITO, WARD- 1(2), GUNTUR. AS PER THE PROVISIONS OF THE I.T.ACT , NOTICE U/S 143(2) IS REQUIRED TO BE ISSUED BY THE AO HAVING JURISDICTION . FOR READY REFERENCE, WE EXTRACT RELEVANT PART OF THE SECTION U/S 143(2) (2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 , THE ASSESSING OFFICER SHALL, (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN IS INADMISSI BLE, SERVE ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS , EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUIRE HIM, ON A DATE TO B E SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE OR P ARTICULARS SPECIFIED THEREIN OR ON WHICH THE ASSESSEE MAY RELY, IN SUPPORT OF SU CH CLAIM: 17 [ PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003;] (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT 18 TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED TH E INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NO T UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HI M, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: 19 [ PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED O N THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.]] 10.1. FROM SECTION 143(2), IT IS EVIDENT THAT THE A O OR THE PRESCRIBED INCOME TAX AUTHORITY, IF HE CONSIDERS IT IS NOT NEC ESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDER STATED THE I NCOME, SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO PRODUCE OR CAUSE TO PRODUCE THE EVIDENCE BEFORE THE AO. THEREFORE, NOTICE U/S 143( 2) REQUIRED TO BE ISSUED 8 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR BY THE AO OR INCOME TAX AUTHORITY. AS PER RULE 12E, THE PRESCRIBED AUTHORITY IS DEFINED AS UNDER : [PRESCRIBED AUTHORITY UNDER SUB-SECTION (2) OF SECT ION 143. 12E. THE PRESCRIBED AUTHORITY UNDER SUB-SECTION (2) OF S ECTION 143 SHALL BE AN INCOME-TAX AUTHORITY NOT BELOW THE RANK OF AN INCOM E-TAX OFFICER WHO HAS BEEN AUTHORISED BY THE CENTRAL BOARD OF DIRECT TAXES TO ACT AS INCOME-TAX AUTHORITY FOR THE PURPOSES OF SUB-SECTION (2) OF SECTION 143 . ] 10.2. THE AO / LD.DR DID NOT SHOW ANY AUTHORIZATION ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT)TO ACT AS INCOME TAX AU THORITY FOR THE PURPOSE OF SUB FOR ISSUE OF NOTICE U/S 143(2) IN FA VOUR OF THE ITO,WARD 1(1) SILIGURI IN THE CASE OF THE ASSESSEE. HENCE THE ITO WARD-1(1), SILIGURI IS NOT A PRESCRIBED INCOME TAX AUTHORITY UNDER 12E OF I.T. RULES. THE ASSESSING OFFICER IS DEFINED THE SECTION 2, SUB SECTION 7A AS UNDER : (7A) 'ASSESSING OFFICER' MEANS THE ASSISTANT COMM ISSIONER [OR DEPUTY COMMISSIONER] [OR ASSISTANT DIRECTOR] [OR DEPUTY DIRECTOR] OR THE INCOME-TAX OFFICER WHO IS VESTED WITH THE RELEVANT JURISDICTIO N BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 120 OR ANY OTHER PROVISION OF THIS ACT, AND THE [ADDITIONAL C OMMISSIONER OR] [ADDITIONAL DIRECTOR OR] [JOINT COMMISSIONER OR JOINT DIRECTOR ] WHO IS DIRECTED UNDER CLAUSE (B) OF SUB-SECTION (4) OF THAT SECTION TO EX ERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED ON, OR ASSIGNED TO, AN ASSESSING OFFICER. 10.3. THE AO IS AN AUTHORITY WHO HAS BEEN CONFERRED WITH POWERS AND FUNCTIONS TO ACT AS AO UNDER THE I.T.ACT. THE POWE RS AND FUNCTIONS AND THE AOS JURISDICTION IS NOTIFIED BY THE CBDT/PR.CCIT/P R.CIT FROM TIME TO TIME. IN THIS CASE, THE JURISDICTION OF THE AO FALLS WITH THE ITO, WARD-1(2), GUNTUR WHICH WAS NOT DISPUTED BY THE DEPARTMENT. THE ITO, WARD-1(1), SILIGURI 9 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR WAS NOT CONFERRED WITH ANY POWERS U/S 127 AGAINST T HE ASSESSEE. THE AO IN RELATION TO ASSESSEE MEANS, THE AO WHO IS ENTRUS TED WITH THE RELEVANT JURISDICTION AS PER THE NOTIFICATION ISSUED IN THIS REGARD. THERE IS NO DENYING FACT THAT THE JURISDICTION OF THE ASSESSEE IS VESTED WITH THE ITO, WARD-1(2), GUNTUR AND AGAIN THERE IS NO DENYING FAC T THAT THE JURISDICTION WAS NOT TRANSFERRED TO ITO, WARD-1(1), SILIGURI. H ONBLE KOLKATA HIGH COURT IN THE CASE OF ITO AND OTHERS VS. SANTOSH KUMAR DAL MIA [208 ITR 337] (KOL) HELD THAT IF THE INCOME TAX OFFICER DID NOT H AVE ANY JURISDICTION TO ISSUE THE IMPUGNED NOTICE, THE WRIT COURT CAN ALWAY S INTERFERE IRRESPECTIVE OF THE FACT WHETHER THE ASSESSMENT PURSUANT TO SUCH NOTICE HAS BEEN MADE OR NOT. IF THE NOTICE ISSUED U/S 148 OF THE ACT, W HICH IS THE CONDITION PRECEDENT FOR MAKING THE REASSESSMENT IS QUASHED TH EN THE REASSESSMENT CANNOT STAND AND THATS WHY THE LD.JUDGE AFTER SQUA SHING THE NOTICE U/S 148 OF THE ACT ALSO DIRECTED IF ANY ASSESSMENT ORDE R HAS BEEN PASSED PURSUANT TO THE NOTICE, THE SAME WOULD ALSO BE SET ASIDE AND QUASHED. IN INSTANT CASE, THE REVENUE HAS NOT BROUGHT ON RECOR D TO SHOW THAT NOTIFICATION U/S 127 PASSED BY THE COMMISSIONER OF INCOME TAX CONFERRING THE JURISDICTION OVER THE ASSESSEE WITH ITO-WARD1(1 ), SILGURI. IT IS THE RESPONSIBILITY OF THE INCOME TAX DEPARTMENT TO MIGR ATE PAN TO THE CORRECT AO, IF THERE IS A MISMATCH. SIMPLY BECAUSE THE PAN IS ATTACHED TO ITO, 10 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR WARD-1(1), SILIGURI HE CANNOT ASSUME THE JURISDICTI ON OVER THE ASSESSEE AND ISSUE THE NOTICE WITHOUT HAVING POWERS VESTED IN HI M. THEREFORE, THE NOTICE ISSUED BY THE ITO, WARD-1(1), SILIGURI IS IN VALID, HENCE THE SAME SHOULD BE TREATED AS NON-EST. THIS VIEW IS SUPPORT ED BY THE ORDER OF THE ITAT KOLKATA IN ITA NO.1621 &1301/KOL/2011 DATED 20 .07.2016 IN ITO, WARD-56(4) VS. M/S NOPANY & SONS AND THE DECISION O F ITAT, DELHI IN THE CASE OF ACIT VS. SMT. HARINDER SACHDEV IN I.T.A.NO. 207/DEL OF 2010 AND I.T.A.NO.4776/DEL OF 2009. 11. HAVING HELD THAT THE NOTICE ISSUED U/S 143(2) B Y THE ITO, WARD-1(1), SILGURI IS INVALID WE NOW EXAMINE THE VALIDITY OF N OTICE ISSUED BY THE ITO, WARD-1(1), GUNTUR. IN THIS CASE THE ASSESSEE IS FI LING THE RETURNS WITH ITO, WARD-1(2), GUNTUR. ITO, WARD-1(1), GUNTUR HAS ISSU ED NOTICE U/S 143(2) ON RECEIPT OF ASSESSMENT RECORDS FROM ITO, WARD-1(1 ), SILGURI ON 14.11.2014. THE ASSESSMENT INVOLVED IN THIS CASE I S FOR THE ASSESSMENT YEAR 2013-14. AS PER PROVISO TO SECTION 143(2), NO NOTICE U/S 143(2) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX M ONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. I N THIS CASE, THE RETURN WAS FURNISHED ON 07.09.2013 AND THE TIME LIMIT ALLOWED TO SERVE NOTICE U/S 143(2) GETS BARRED BY 30.09.2014. HENCE, THE NOTIC E ISSUED U/S 143(2) BY 11 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR THE AO, GUNTUR ON 14.11.2014WAS BARRED BY LIMITATIO N. ON THE SAME FACTS, HONBLE ITAT, DELHI IN THE CASE OF ITO VS. NVS BUIL DERS PVT. LTD. IN ITA NO.3729/DEL/2012 DATED 08.03.2013 FOR THE ASSESSMEN T YEAR 2006-07 HELD THAT THE ENTIRE ASSESSMENT PROCEEDINGS ARE VITIATED BECAUSE OF NON SERVICE OF JURISDICTIONAL NOTICE U/S 143(2) WITHIN THE PERI OD OF LIMITATION BY THE AO HAVING JURISDICTION OVER THE CASE. FOR THE SAKE OF CLARITY, WE EXTRACT THE RELEVANT PARAGRAPH OF THE ORDER OF THE TRIBUNAL WHI CH READS AS UNDER : 5. WE HAVE CONSIDERED, THE RIVAL SUBMISSIONS. IT I SNOT IN DISPUTE THAT RETURN OF INCOME HAS BEEN FILED ON 20TH NOVEMBER, 2006 WITH ITO AT NEW DELHI HAVING JURISDICTION OVER THE CASE OF THE ASSE SSEE. THE LA. DR. ALSO BROUGHT ON RECORD SAME WHICH SUPPORT THE CLAIM OF T HE ASSESSEE THAT ASSESSEE FILED THE ORIGINAL RETURN OF INCOME AT DEL HI. THE RECORD ALSO REVEAL THAT EVEN FOR EARLIER AND SUBSEQUENT YEARS, THE ASSESSEE FILED RETURN OF INCOME AT DELHI. THE ASSESSMENT IN THE PR ESENT CASE HAS BEEN FRAMED BY ITO, WARD-130), NEW DELHI, HAVING JURISDI CTION OVER THE CASE OF THE ASSESSEE, THE ITO, WARD-1 (1), FARDABAD ISSUED NOTICE UNDER SECTION 143(2) ON 23RD OCTOBER, 2007, WHO WAS HAVING NOJURS DICTTON OVER THE CASE OF THE ASSESEE. THE ITO AT DELHI SSUED NOTICE UNDER SECTION 143(2) ON 28 ' JULY, 2008 WHICH WAS BEYOND THE PERIOD PRESCRIBED UNDER THE LAW. IT IS, THEREFORE, CLEAR THAT THE A.O. HAVING JURISDICT ION OVER THE CASE OF THE ASSESSEE DID NOT ISSUE NOTICE UNDER SECTION 143(2) UPON THE ASSESSEE WITHIN THE PEDOD OF LIMITATION PROVIDED UNDER THE A CT. THEREFORE, THE FIRST NOTICE ISSUED BY ITO, WARD-1(1), FARIDABAD, HAVING NOJURISCIICTON OVER THE CASE OF THE ASSESSEE WOULD NOT BE VALID AND WOU LD NOT GET ANY JURISDICTION OVER THE CASE OF THE ASSESSEE. THE CON TENTION OF THE LD. P.R. HAS NO MERIT THAT ITO, WARD-1(1), FARIDABAD WAS EMP OERED TO ISSUE NOTICE AS PER PAN OR IT WAS ISSUED AS PER COMPUTERI ZED SYSTEM OF THE DEPARTMENT BECAUSE IT IS AGAINST THE PROVISIONS OF LAW. AS SUCH THE SSUE WOULD HE IN VIOLATION OF THE PRINCIPLES OF LAW AND AS SUCH THE INTERNAL PROCEDURE PROVIDED BY THE DEPARTMENT WOULD NOT JUST ' THE ILLEGALITY COMMITTED BY THE ITO, WARD-1 (1), FARIDABAD, THE EN TIRE ASSESSMENT PROCEEDINGS ARE VITIATED BECAUSE OF NON-SERVICE OF J URISDICTIONAL NOTICE UNDER SECTION 143(2) WITHIN THE PERIOD OF LIMITATIO N BY THE AD. HAVING 12 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR JURISDICTION OVER THE CASE OF THE ASSESSEE. NO INFI RMITY HAVE BEEN POINTED OUT IN THE ORDER OF THE LD. CIT(A) IN HOLDING THE A SSESSMENT ORDER TO BE NULL AND VOID. WE CONFIRM THE FINDING OF FACT RECOR DED BY THE LD. CIT(A) AND DISMISS THIS GROUND OF APPEAR OF REVENUE. SINCE THE ENTIRE ASSESSMENT ORDER IS DECIARED AS NULL AND VOID, THERE IS NO NEE D TO DEDCIDE THE ISSUE ON MERIT WHICH IS LEFT WITH ACADEMIC DISCUSSION ONLY. THE DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. 12. IN THE INSTANT CASE, THE FIRST NOTICE WAS ISSUE D BY THE ITO, WARD-1(1), SILIGURI WHO IS HAVING NO JURISDICTION, HENCE IT IS INVALID. THE SECOND NOTICE ISSUED BY THE ITO, WARD-1(1), GUNTUR WAS BARRED BY LIMITATION. THE PRE- REQUISITE FOR MAKING THE ASSESSMENT U/S 143(2) IS S ERVICE OF VALID NOTICE. NON SERVICE OF VAILID NOTICE MAKES THE ASSESSMENT I LLEGAL AND VOID-AB-INITIO. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HONB LE ITAT INDORE IN ITA NO. 139/ IND/2007 IN THE CASE OF SERVITE SISTERS SO CIETY VS. ACIT DATED 22.05.2009 HONBLE SUPREME COURT IN THE CASE OF BLU EMOON HOTELS ALSO HELD THAT THE SERVICE OF VALID NOTICE IS PRE REQUIS ITE FOR MAKING THE ASSESSMENT U/S 143(3). SINCE THE NOTICE ISSUED U/S 143(2) IN THIS CASE BY THE JURISDICTIONAL ITO HELD TO BE BARRED BY LIMITAT ION AND THE NOTICE ISSUED BY ITO, WARD-1(1), SILIGURI IS WITHOUT JURISDICTION , WE HOLD THAT THE ASSESSMENT MADE U/S 143(3) CONSEQUENT TO THE NOTICE ISSUED U/S 143(2) BY ITO, WARD-1(1) DATED 14.11.2014 REQUIRED TO BE SQUA SHED. ACCORDINGLY, WE HOLD THAT THE NOTICE ISSUED U/S 143(2) BY THE IT O, WARD (1) IS INVALID AND THE CONSEQUENT ASSESSMENT MADE U/S 143(3) IS BA D IN LAW HENCE THE 13 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE ASSESS MENT MADE U/S 143(3) OF THE ACT IS ANNULLED. ACCORDINGLY, THE APPEAL OF TH E REVENUE IS DISMISSED. THE CROSS OBJECTION NO.1 IS SUSTAINED AND WE CONSID ER IT IS NOT NECESSARY TO ADJUDICATE THE REMAINING GROUNDS OF APPEAL OF THE R EVENUE AND THE CROSS OBJECTION OF THE ASSESSEE. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMIS SED AND THE CROSS OBJECTIONS ARE PARTLY SUSTAINED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 9 TH MAY, 2018. SD/- SD/- ( . ) ( ! . . # ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 09.05.2018 L.RAMA, SPS 14 ITA NO.339/VIZ/2016 AND CO NO.51/VIZ/2016 ASHOK KUMAR PERIWAL, GUNTUR / COPY OF THE ORDER FORWARDED TO:- 1. / THE ASSESSEE - SRI ASHOK KUMAR PERIWAL, H.NO.25-16- 179/6 OPP.OLD MIRCHI YARD, GUNTUR 2. / THE REVENUE - INCOME TAX OFFICER, WARD-1(1),GUNTUR 3. THE PR.COMMISSIONER OF INCOME TAX, GUNTUR 4. THE COMMISSIONER OF INCOME-TAX(APPEALS)-1, GUNTUR 5. # , $# , / DR, ITAT, VISAKHAPATNAM 6. / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM