Mateshwari Construction, Aurangabad V. ACIT, Circle-3(1), , Gaya

ITA 245/PAT/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6550 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Period of limitation; Question of law; Time period of passing order; TDS
• Section: 271(1)(c); 143(3); 142(1); 250; 292BB; 143(2); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “PATNA” BENCH, PATNA VIRTUAL HEARING AT KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Rajesh Kumar, Accountant Member I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction...................................................................Appellant Mamaka Niwas, New Area Chhitore Nagar, Aurangabad-824101 [PAN: AAAAM9517H] vs. ACIT, Circle-3(1), Gaya.............................................................Respondent Appearances by: Shri Aman Raja, Advocate, appeared on behalf of the appellant. Shri Rupesh Agrawal, Sr. DR, appeared on behalf of the Respondent. Date of hearing : June 07, 2022 Date of pronouncing the order : June 16, 2022 ORDER Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 19.07.2018 of the Commissioner of Income Tax (Appeals)-I, Patna [hereinafter as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal: “1.For that the grounds of appeal hereto are all without prejudice to each other. 2. For that on the facts and in circumstances of the case the order of assessment passed by the ld. Assessing Officer and confirmation of the same by the Commissioner of Income-Tax (Appeal) - 1 (hereinafter referred as CIT (A)-1), Patna are both bad on facts and in law inter-alia being based entirely on mere suspicion, surmises and conjectures. 3. For that on the facts and in circumstances of the case the order passed by the ld. Assessing Officer and the confirmation of the same by CIT (A) - 1, Patna is also unsustainable in law being violative of the settled principles of natural justice as no reasonable opportunity was allowed to furnish defence in course of assessment proceedings. 4. For that on the fact and in circumstances of the case the ld. Assessing Officer has assessed the income under section 143 (3) of the Act without issuing the statutory notice under the provisions of section 143(2) of the Act and the confirmation of the same by the CIT (A)-1, Patna is bad, unjustified, surmises and conjectures. I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 2 5. For that on the fact and in circumstances of the case the assessment order passed by the ld. Assessing Officer is bad in law as the ld. Assessing Officer completed the assessment while the statutory notice under the provisions of section 143 (2) of the Act was issued by the Income Tax Officer, Ward - 3(3) Aurangabad. 6. For that on the fact and in circumstances of the case the issuance of notice under the provisions of section 143 (2) of the Act is mandatory provision and must be issued by the individual Assessing Officer and serve to the assessee within his jurisdiction. 7. For that on the fact and in circumstances of the case the ld. Assessing Officer without rejecting the books of account and without issuing show cause with regard to the addition on account of undisclosed TDS and addition on account of receipt received from Executive Engineer, REO Works Division, Bhagalpur completed the assessment under section 143 (3) of the Act at a total income of Rs. 82,19,760/- vide order of assessment dated 26/12/2017 and the confirmation of the same by the CIT (A)-1, Patna is wholly unwarranted, arbitrary and unjustified. 8. For that on the facts and in circumstances of the case the ld. Assessing Officer completed the assessment proceeding without following the instruction no. 20/2015 dated 29/12/2015 with ulterior motives as the addition made under the head on account of undisclosed TDS and addition on account of receipt from Executive Engineer, REO Work Division BGP is not a subject matter of limited scrutiny is wholly unwarranted, arbitrary and unjustified. 9. For that on the facts and in circumstances of the case the ld. Assessing Officer has erred in converting the limited scrutiny into a complete scrutiny without following the proper guidelines. 10. For that on the facts and in circumstances of the case the determination of the total income at Rs. 82,19,756/- as against the returned income of Rs. 34,65,210/- and the confirmation of the same by the CIT (A)-1, Patna is wholly arbitrary, unwarranted, wrong, illegal and at any rate are excessive. 11. For that on the fact and in circumstances of the case the ld. Assessing Officer has erred in making addition of 1% of other expenses i.e. Rs. 4,38,942/- on the ground that the assessee has not produced any documentary evidence along with bills & Vouchers. 12. For that on the facts and in circumstances of the case the ld. Assessing officer has erred in adding the amount of Rs. 3,65,151/- of undisclosed TDS amounting to Rs.8252/- in total income of the assessee on the ground that the receipt credited to the bank has already been taken into the books of account, while the amount has never been credited in the assessee books of account. 13. For that on the facts and in circumstances of the case the ld. Assessing officer has erred in adding the entire contractual receipt amounting to Rs. 39,50,451/- in total income of assessee on the ground that the assessee has not provided any documentary proof relating to works done by the M/s Puja Construction Bhagalpur. I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 3 14. For that on the fact and in circumstances of the case the ld. Assessing Officer has erred in initiating the penalty proceeding under the provisions of section 271(1)(c) of the Act on the ground that the appellant concealed the particulars of income. 15. For that on the facts and in circumstances of the case initiation of penalty proceeding under the provisions of section 271 (1) (c) for the concealment of income is wholly arbitrary, unwarranted, wrong and illegal. 16. For that on the fact and in circumstances of the case the ld. Assessing Officer has erred in charging interest under the provisions of section 234 B & 234 D without making any provision in the order of assessment there on. 17. For that on the facts and in circumstances of the case charging of interest under the provisions of section 234 B & 234 D are wholly arbitrary, unwarranted, wrong and illegal. 18. For that the observations made by the Assessing officer in the order of assessment are wholly biased, unwarranted and uncalled for and are even without any material available on record and particularly because the same has been made without even giving any opportunity of hearing to the appellant. 19. For that on the facts and in circumstances of the case the Assessing officer has erred in considering irrelevant materials, which has vitiated the order of Assessment. 20. For that the impugned order is misconceived and arbitrary in nature. 21. For that the appellant prays to add, amend, modify, and delete any ground, if necessarily. 22 For that other grounds, if any, will be urged at the time of hearing.” 2. A perusal of grounds no.4 to 6 of the appeal reveals that the assessee through these grounds has contested the jurisdiction of the concerned Assessing Officer/Assistant Commissioner of Income Tax (ACIT) to frame assessment order dated 26.12.2017 u/s 143(3) of the Act. The ld. counsel for the assessee has submitted that the concerned Assessing Officer did not have jurisdiction to frame the assessment on the ground that a notice u/s 143(2) was mandatorily required to be issued by the concerned Assessing Officer to assume jurisdiction to frame assessment. He in this respect has relied upon Hon’ble Supreme Court in the case of ACIT vs. M/s Hotel Blue Moon reported in 321 ITR 362(SC); 3. Since assessee through the legal grounds is hitting at jurisdiction of the concerned Assessing Officer to frame the impugned assessment order, therefore, we deem it proper I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 4 to admit the aforesaid legal grounds and proceed to adjudicate these first as if the issue relating to jurisdiction of the Assessing Officer is decided in favour of the assessee, any discussion on merit will be rendered academic in nature. 4. At the outset, the ld. counsel for the assessee has invited our attention to the impugned assessment order to show that in the opening lines of the assessment order itself, it has been mentioned that the assessee had declared a total income of Rs.34,65,210/- in the return of income filed on 30.09.2015 for the assessment year under consideration. The ld. Counsel has further submitted that as per the relevant statutory provisions not only the territorial jurisdiction but also the pecuniary jurisdiction of the Income Tax Officers/Assessing Officer has been fixed by the CBDT and that if the returned income is less than Rs.20 lacs in case of non-corporate assessee in mofussil area, the jurisdiction to frame the assessment lies to the Income Tax Officer whereas if the returned income is more than Rs.20 lacs, the jurisdiction lies with the concerned ACIT/JCIT. The ld. counsel has submitted that the jurisdiction to pass the assessment order in this case laid with the ACIT/DCIT as the income declared by the assessee was more than Rs.20 lacs. The ld. counsel has further invited our attention to the impugned assessment order to show that the assessment order in this case has been passed by ACIT, Circle- 3(1), Gaya. He has further submitted that notice u/s 143(2) dated 20.09.2016 was issued by the Office of the Income Tax Officer (ITO), Ward-3(3), Aurangabad. The ld. counsel in this respect has submitted that in this case, the jurisdiction to issue notice u/s 143(2) of the Act vested with the ACIT and not with the ITO on account of pecuniary jurisdiction, the returned income being more than Rs.20 lacs of the assessee. He has further submitted as per the settled proposition of law, the issue of notice u/s 143(2) by the concerned Assessing Officer of competent jurisdiction was sine qua non to assume jurisdiction to frame assessment u/s 143(3) of the Act. He, in this respect, has relied upon the decision of the Hon’ble Supreme Court in the case of ACIT vs. M/s Hotel Blue Moon (supra). The ld. counsel, therefore, has submitted that in this case the concerned ACIT did not issue any notice u/s 143(2) of the Act before proceeding to frame assessment u/s 143(3) of the I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 5 Act. He has submitted that since the concerned ITO, Ward-3(3), Aurangabad did not have jurisdiction to issue notice u/s 143(2) of the Act as such the said notice issued by him did not have any legal sanctity. He, therefore, has submitted that the assessment framed by the ACIT, in this case, was bad in law for want of issue of notice u/s 143(2) of the Act. The ld. DR, on the other hand, strongly relied upon the findings of the CIT(A) in this respect to submit that the pecuniary jurisdiction has been fixed by the CBDT for the underlying object of equal distribution of work for administrative convenience and that the same was not a rigid limit. 5. We have considered the rival contentions of ld. representatives of both the parties and gone through the records. Before proceeding further, it will be appropriate to refer to the provisions of section 120 of the Act, which, for the sake of ready reference, are reproduced as under: “Jurisdiction of income- tax authorities (1) Income- tax authorities shall exercise all or any of the powers and perform all or any of the functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. [Explanation.- For the removal of doubts, it is hereby declared that any income-tax authority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub- section (1)]. (2) The directions of the Board under sub- section (1) may authorise any other income- tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income- tax authorities who are subordinate to it. (3) In issuing the directions or orders referred to in sub- sections (1) and (2), the Board or other income- tax authority authorised by it may have regard to any one or more of the following criteria, namely:- (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 6 (d) cases or classes of cases ...... 6. A perusal of the aforesaid statutory provisions would reveal that the jurisdiction of Income Tax Authorities may be fixed not only in respect of territorial area but also having regard to a person or classes of persons and income or classes of income also. Therefore, the CBDT having regard to the income as per return has fixed the jurisdiction of the Assessing Officers. The ld. Counsel in this respect has relied upon the CBDT Instruction No.1/2011 [F.No.187/12/2010-IT(A-I), for the sake of convenience is reproduced as under: “Instruction No.1/2011 [F.No.187/12/2010-IT(A-I), DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially from mofussil areas, that the existing monetary limits for assigning cases to ITOs and DCs/ACs is causing hardship to the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered the matter and is of the opinion that the existing limits need to be revised to remove the abovementioned hardship. An increase in the monetary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limits were introduced. It has therefore been decided to increase the monetary limits as under: Income Declared (Mofussil Income Declared areas) (Metro cities) ITOs ACs/DCs ITOs DCs/ACs Corporate returns Upto Rs. 20 lacs Above Rs. 20 lacs Upto Rs. 30 lacs Above Rs. 30 lacs Non-corporate returns Upto Rs. 15 lacs Above Rs. 15 lacs Upto Rs. 20 lacs Above Rs. 20 lacs Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011.” I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 7 The ld. CIT(A) has noted in the impugned order that the aforesaid pecuniary limit of Rs.15 lakh for non-corporate assessees in Mofussil area has been further increased to Rs.20 lakh. 7. A perusal of the above provisions of law along with the CBDT Instructions would show, in this case, the competent officer to proceed with the assessment by way of issue of notice u/s 143(2) of the Act was DCIT/ACIT, whereas, the notice u/s 143(2) has been issued by the ITO, Ward-1(1), Kolkata who did not have any jurisdiction to issue the aforesaid notice. As has been held by the various courts of the country including the Apex Court, the issuance of notice u/s 143(2) by the concerned Assessing Officer of a competent jurisdiction is mandatory to assume jurisdiction to proceed to frame assessment u/s 143(3) of the Act. The identical issue also came into consideration before the Coordinate Bench of the Tribunal in the case of Bhagyalaxmi Conclave (P) Ltd. v. DCIT [IT Appeal No.2517/Kol/2019, dated 3-2-2021] wherein the Tribunal further relying upon various other decisions of the Co-ordinate Benches of the Tribunal has decided the issue in favour of the assessee and held that when the notice u/s 143(2) was issued by an officer who did not have jurisdiction to proceed with the assessment and the assessment was framed by the other officer who did not issue the notice u/s 143(2) before proceeding to frame the assessment, then such an assessment order was bad in law. The relevant part of the order passed in Bhagyalaxmi Conclave (P) Ltd. (supra) is reproduced as under: “5.2. The assessee relied on the recent decision of this Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd. vs. DCIT, in ITA No. 2634/Kol/2019, order dated 12.01.2021. We find that the issues that arise in this appeal are clearly covered in favour of the assessee. This order followed the principles of law laid down in a number of other decisions of the ITAT, Kolkata Bench on this issue. 5.3. Kolkata “B” Bench of the Tribunal in the case of Hillman Hosiery Mills Pvt. Ltd.(supra) held as follows: “10. In this case, the ITO Ward-3(3), Kolkata, issued notice u/s 143(2) of the Act on 04/09/2014. In reply, on 22/09/2014, the assessee wrote to the ITO, Ward-3(3), Kolkata, stating that he has no jurisdiction over the assessee. Thereafter on 31/07/2015, the DCIT, Circle-11(1), Kolkata, had issued notice u/s 142(1) of the Act to the assessee. The DCIT, Circle-11(1), Kolkata, completed assessment u/s 143(3) of the Act on 14/03/2016. The issue is whether an assessment order passed by DCIT, Circle-11(1), Kolkata, is valid as admittedly, he did not issue a notice u/s 143(2) of I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 8 the Act, to the assessee. This issue is no more res-integra. This Bench of the Tribunal in the case of Soma Roy vs. ACIT in ITA No. 462/Kol/2019; Assessment Year 2015- 16, order dt. 8 th January, 2020, under identical circumstances, held as under:- “5. After hearing rival contentions, I admit this additional ground as it is a legal ground, raising a jurisdictional issue and does not require any investigation into the facts. The ld. Counsel for the assessee submitted that as per Board Instruction No. 1/2011 [F. No. 187/12/2010-IT(A-I)], dt. 31/01/2011, the jurisdiction of the assessee is with the Assistant Commissioner of Income Tax, Circle-1, Durgapur, as the assessee is a non- corporate assessee and the income returned is above Rs.15,00,000/- and whereas, the statutory notice u/s 143(2) of the Act, was issued on 29/09/2016, by the Income Tax Officer, ward-1(1), Durgapur, who had no jurisdiction of the case. He submitted that the assessment order was passed by the ACIT, Circle-1(1), Durgapur, who had the jurisdiction over the assessee, but he had not issued the notice u/s 143(2) of the Act, within the statutory period prescribed under the Act. Thus, he submits that the assessment is bad in law. 5.1. On merits, he rebutted the findings of the lower authorities. The ld. Counsel for the assessee relied on certain case-law, which I would be referring to as and when necessary. 6. The ld. D/R, on the other hand, submitted that the concurrent jurisdiction vests with the ITO as well as the ACIT and hence the assessment cannot be annulled simply because the statutory notice u/s 143(2) of the Act, was issued by the ITO and the assessment was completed by the ACIT. He further submitted that the assessee did not object to the issue of notice before the jurisdictional Assessing Officer and even otherwise, Section 292BB of the Act, comes into play and the assessment cannot be annulled. On merits, he relied on the orders of the lower authorities. 7. I have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, I hold as follows:- 8. I find that there is no dispute in the fact that the notice u/s 143(2) of the Act dt. 29/09/2016 has been issued by the ITO, Wd-1(1), Durgapur. Later, the case was transferred to the jurisdiction of the ACIT on 11/08/2017. Thereafter, no notice u/s 143(2) of the Act was issued by the Assessing Officer having jurisdiction of this case and who had completed the assessment on 26/12/2017 i.e., ACIT, Circle-1(1), Durgapur. Under these circumstances, the question is whether the assessment is bad in law for want of issual of notice u/s 143(2) of the Act. 9. This Bench of the Tribunal in the case of Shri Sukumar Ch. Sahoo vs. ACIT in ITA No. 2073/Kol/2016 order dt. 27.09.2017, held as follows:- “5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non corporate returns' filed where income declared is only upto Rs.15 lacs ; and the ITO doesn't have the jurisdiction to conduct assessment if it is above Rs 15 lakhs. Above Rs. 15 lacs income declared by a non- corporate person i.e. like I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 9 assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non corporate person) who undisputedly declared income of Rs.50,28,040/- in his return of income cannot be assessed by the ITO as per the CBDT circular (supra). From a perusal of the assessment order, it reveals that the statutory notice u/s. 143(2) of the Act was issued by the then ITO, Ward-1, Haldia on 06.09.2013 and the same was served on the assessee on 19.09.2013 as noted by the AO. The AO noted that since the returned income is more than Rs. 15 lacs the case was transferred from the ITO, Ward-1, Haldia to ACIT, Circle-27 and the same was received by the office of the ACIT, Circle-27, Haldia on 24.09.2014 and immediately ACIT issued notice u/s. 142(1) of the Act on the same day. From the aforesaid facts the following facts emerged: i) The assessee had filed return of income declaring Rs.50,28,040/-. The ITO issued notice under section 143(2) of the Act on 06.09.2013. ii) The ITO, Ward-1, Haldia taking note that the income returned was above Rs. 15 lacs transferred the case to ACIT, Circle-27, Haldia on 24.09.2014. iii) On 24.09.2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia. 6. We note that the CBDT Instruction is dated 31.01.2011 and the assessee has filed the return of income on 29.03.2013 declaring total income of Rs.50,28,040/-. As per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto Rs.15 lacs; and if the returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above Rs.15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. It is settled law that serving of notice u/s. 143(2) of the Act is a sine qua non for an assessment to be made u/s. 143(3) of the Act. In this case, notice u/s. 143(2) of the Act was issued on 06.09.2013 by ITO, Ward-1, Haldia when he did not have the pecuniary jurisdiction to assume jurisdiction and issue notice. Admittedly, when the ITO realized that he did not had the pecuniary jurisdiction to issue notice he duly transferred the file to the ACIT, Circle-27, Haldia on 24.09. 2014 when the ACIT issued statutory notice which was beyond the time limit prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by assuming the jurisdiction after the time prescribed for issuance of notice u/s. 143(2) of the Act notice became qoarum non judice after the limitation prescribed by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, goes to the root of the case and makes the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 10 and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. 7. In the result, appeal of assessee is allowed. 9.1. This Bench of the Tribunal in the case of Krishnendu Chowdhury vs. ITO reported in [2017] 78 taxmann.com 89 (Kolkata-Trib.) held as follows:- “Return of income of assessee was Rs. 12 lakhs - As per CBDT instruction, jurisdiction for scrutiny assessment vested in Income- tax Officer and notice under section 143(2) must be issued by Income-tax Officer, Ward-I, Haldia and none other - But, notice was issued by Asstt. Commissioner, Circle Haldia much after CBDT's instruction and knowing fully well that he had no jurisdiction over assessee - Whether, therefore, notice issued by Asstt. Commissioner was invalid and consequently assessment framed by Income-tax Officers becomes void since issue of notice under section 143(2) was not done by Income-tax Officers as specified in CBDT instruction No. 1/2011.” 9.2. The Hon’ble High Court of Calcutta in the case of West Bengal State Electricity Board vs. Deputy Commissioner of Income Tax, Special Range – I, reported in [2005] 278 ITR 218 (Cal.) has held as follows:- “Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment years 1983-84 to 1987-88 - Whether a question of law arising out of facts found by authorities and which went to root of jurisdiction can be raised for first time before Tribunal - Held, yesWhether jurisdiction of Assessing Authority is not dependent on date of accrual of cause of action but on date when it is initiated - Held, yes - Whether once a particular jurisdiction is created, same must be prospective and cannot be retrospective and it has to be interpreted having regard to manner in which it has been sought to be created - Held, yes – Assessee” 9.3. The Hon’ble Supreme Court in the case of CIT vs. Laxman Das Khandelwal [2019] 108 taxmann.com 183 (SC), held as follows:- “7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 11 the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Hotel Blue Moon's case (supra). The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself.” 10. Respectfully following the propositions of law laid down in all these case-law and applying the same to the facts of the case, we hold that the assessment order is bad in law for the reason that the Assessing Officer having jurisdiction over the assessee, has not issued a notice u/s 143(2) of the Act as required by the statute. Notice issue by the officer having no jurisdiction of the assessee is null and void. When a notice is issued by an officer having no jurisdiction, Section 292BB of the Act, does not comes into play. Coming to the argument of the ld. D/R that objection u/s 124(3) of the Act has to be taken by the assessee on rectifying notice u/s 143(2) of the Act from a non-jurisdictional assessing officer, I am of the view that I need not adjudicate this issue, as I have held that non-issual of statutory notice/s 143(2) of the Act by the jurisdictional Assessing Officer makes the assessment bad in law. Under these circumstances, we allow this appeal of the assessee.” 6. Respectfully following the propositions of law laid down in these orders stated above, we hold that the orders are bad in law for the reason that the assessing authority passed the order u/s 143(3) of the Act i.e. DCIT-13(1), Kolkata has not issued a notice u/s 143(2) of the Act and also for the reason that the jurisdiction of these cases lies with the ITO and not the DCIT. Hence all the orders passed by the ld. CIT(A) in these four cases are hereby quashed and the appeals of the assessees are allowed.” 8. In view of above discussion made and in the light of the various case laws, the assessment order passed by the Assessing Officer (ACIT) was bad in law for want of issuance of notice u/s 143(2) of the Act. I.T.A. No.245/Pat/2018 Assessment Year: 2015-16 Mateshwari Construction 12 In view of the above discussion, since the legal issue relating to the jurisdiction to frame the assessment for want of issue of notice u/s 143(2) of the Act is decided in favour of the assessee, therefore, the assessment order passed without jurisdiction is bad in law and is hereby quashed. Since, we have already quashed the assessment order on jurisdictional ground, therefore, we do not deem it necessary to further deliberate on the merits of the other issues as the same have been rendered academic in nature. In view of the above findings given, the appeal of the assessee stands allowed. 9. In the result, the appeal of the assessee stands allowed. Order is pronounced in the open court on 16.06.2022. Sd/- Sd/- [Rajesh Kumar] [Sanjay Garg] Accountant Member Judicial Member Dated: 16.06.2022. RS Copy of the order forwarded to: 1. The Appellant- Mateshwari Construction 2. The Respondent- ACIT, Circle-3(1), Gaya 3. The CIT concerned- 4. The CIT(A) - 5. The DR - 6. Guard File //True copy// By order Assistant Registrar ITAT Kolkata Benches, Kolkata