DCIT, Cir.-13(1), Kolkata V. Smt. Manjula Shukla, Howrah

ITA 285/KOL/2021

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9729 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 11-09-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 02-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Invalid notice; Salary income; Additional evidence; Competent authority; Penny stocks; Reassessment proceedings
• Section: 131; 148; 144; 139; 143(3); 142(1); 143(2)

Judgement Text

1. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla आयकर अपील य अ धकरण, पीठ “A-SMC” , कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL BENCH “A-SMC”KOLKATA सम : ी मनीष बोरड, लेखा सद य Before: Shri Manish Borad, Accountant Member आयकर अपील सं.य/ ITA No.285/Kol/2021 Assessment Year: 2012-13 DCIT, Cir-13(1) Aaykar Bhawan Poorva, 6 th Fl., 110 Shantipally, Kolkata-107 बनाम V/s. Smt. Manjula Shukla 7 Kings Road, Howrah- 711101 PAN: AVNPS3002L अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri Akkal Dudhewala, Ld.AR यथ क ओर से/By Respondent Shri Vijay Kumar, Addl. Ld.CIT/DR स ु नवाई क तार ख/Date of Hearing 12-09-2022 घोषणा क तार ख/ Date of Pronouncement 26-10-2022 आदेश /O R D E R PER MANISH BORAD, AM. This appeal of the revenue for the assessment year 2012-13 is directed against the order dt. 18-09-2020 by the ld. Commissioner of Income-tax, Appeals [ in short, hereafter referred to as ‘the ‘ld. CIT(A)-5, Kolkata. 2. The revenue has raised the following grounds of appeal for the AY 2012-13:- 2. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla 1. Whether on the basis of facts and circumstances of the case and in law the Ld.CIT(A) has erred in holding that the notice u/s 148 issued by the AO was bad in law and quashing the assessment order on the issue of jurisdiction of the assessee even though the jurisdiction of the assessee as per PAN database was lying with ITO, Ward-35(4),Kolkata on the date of issue of notice and the assessee was being assessed in charge of ITO, Ward-35(4) since 2007. 2. The Ld. CIT(A) wrongly allowed the appeal of the assessee without considering the issue of bogus long Term Capital Gain on account of Penny Stocks. 3. The Ld. CIT(A) has erred in allowing the appeal of the assessee in spite of the fact that assessee was continuously filling her return of income with ITO, Ward-35( 4),Kolkata and did not raise any question on jurisdiction before the A.O 4. The Ld. CIT(A) failed to appreciate the provision of section 124(3) of the Income Tax Act that no person shall be entitled to call in question the jurisdiction of an Assessing Officer after the expiry of one month from the date on which he was served with a notice u/s 148. 5. That the Department craves leave to add modify or alter any of the grounds of appeal and for adduce additional evidence at the time of hearing of the case. 3. Through the legal issue in ground no. 1 the Revenue has challenged the finding of ld. CIT(A) holding that since the notice u/s. 148 of the Act issued by the ld. AO was bad in law and without jurisdiction, therefore, the assessment order dt. 19-12-2019 deserves to be quashed. 4. Brief facts pertaining to the issue under consideration are that the assessee is an individual earned income from salary and other sources. Income at Rs. 7,20,170/- declared in the return filed on 22-03-2013 for the AY 2012-13. Since the assessee has failed to comply with the provisions of Rule 12 of the Income-tax Rules, 1962 ( in short, the ‘Rule’) and failed to furnish/file the ITR-V within the due date, the said return dt. 22.03,2013 was rejected on 16-04-2013 and consequently the return of income was treated as invalid. Thereafter, notice u/s. 142(1) of the Act was issued by the AO, ITO, W-35(4), Kolkata. Again notice u/s. 143(2) of the Act was also issued by AO, ITO, W-35(4), Kolkata. Subsequently 3. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla on restructuring by the Income-tax Department the said ITO, W-35(4) was abolished and a new ward ITO, W-36(7), Kolkata was created and the assessment proceedings were carried out by the AO, ITO, W-36(7), Kolkata by issuing a notice u/s. 142(1) of the Act. Thereafter, the assessee challenged the jurisdiction stating that jurisdiction of assessee lies with the ACIT, Circle-13(2), Kolkata and ld.AO found merit in assessee’s application and, thereafter, the case of the assessee was transferred to ACIT, Circle-13(2), Kolkata and finally re-assessment proceedings were carried out by him which completed the same u/s. 143(3)/147 on 19-12-2013. 5. Now the assessee’s contention is that since the notice u/s. 148 of the Act was not issued by the AO, ACIT, Circle-13(2), Kolkata, who had jurisdiction over the assessee, the notice issued by the AO,ITO, W 35(4), Kolkata for carrying on re-assessment proceedings is invalid and therefore, the assessment order dt. 19-12-2019 deserves to be quashed. 6. The Ld. Departmental Representative submitted before us by way of written submissions. He submitted that the substantial grounds of appeal are against the decision of Ld. CIT(A) in quashing the assessment order on the issue of jurisdiction. It is held that ITO, Ward-35(4), Kolkata did not have jurisdiction to issue notice u/s. 148 and as the re-assessment order was passed on the basis of the said notice, the order is void ab initio. Certain important facts associated with the issue are as under:- (i) Assessing Officer of Ward-35(4), Kolkata have jurisdiction over the assessee since 21.03.2007. 4. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla (ii) The assessee filed ITR u/s. 139 before the ITO, Ward-35(4) on 22.03.2013. The said return was rejected on 16.04.2013 as non- est due to assessee's failure to file ITR-V in time. (iii) Re-assessment proceeding was initiated by the ITO, Ward- 35(4) by issuing notice u/s. 148 on 27.03.2019. (iv) Assessee filed ITR in response to the notice u/s. 148 before the ITO, Ward-35(4), Kolkata on 30.04.2019. (v) Notice u/s. 143(2) was issued by the same Assessing Officer on 21.06.2019. (vi) On 18.11.2019, the assessee informed that she was Director of a Company, namely, M/s. Tarang Builders Pvt. Ltd. and the said company was regularly assessed by the Assessing Officer, Circle- 13(2), Kolkata. She also claimed that since the AO of Circle-13(2), Kolkata is having jurisdiction over the company; the said AO is the jurisdictional AO in her case. (vii) The case was transferred to Circle-13(2L Kolkata as per order u/s. 127 passed by the PClT on 27.11.2019. (viii) Finally, the assessment order was passed by the DClT-13(2), Kolkata on 19.12.2019. 6.1. The Ld. DR also submitted that that as the Assessing Officer of DClT, Circle-13(2), Kolkata is having jurisdiction over her case, the notice issued earlier by the AO of Ward -35(4), Kolkata was invalid, without any jurisdiction and consequently, the assessment order passed by the AO of DCIT-13(2), Kolkata is also invalid. The Ld. CIT(A) allowed the appeal of the assessee pre-dominantly relying on the decision in the case of M/s. Chnkya Finvest Pvt. Ltd. -Vs.- ITO (34 taxmann.com 206). . The decision pronounced by this bench of Hon'ble ITAT, Kolkata in the case of M/s. Chnkya Finvest Pvt. Ltd -Vs.- ITO(Supra) is clearly distinguishable in reference to the facts of the present case. In the cited 5. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla decision, the ITO Delhi, after issuing notice u/s. 148, transferred the case to ITO, Kolkata without having any fresh order u/s. 124/127. However, in the present case the ITO, Ward-35(4), Kolkata transferred the case to the AO of Circle-13(2), Kolkata after having order u/s. 127 passed by the PClT on 27.11.2019. Thus, decision relied upon is not applicable to the present case. 6.2 From the facts indicated above, it could be observed that assessee filed objection letter on 18.11.2019 i.e. nearly 8 months after receiving notice u/s. 148 dated 27.03.2019 and nearly 5 months after receiving notice u/s. 143(2) dated 21.06.2019. Kind attention of the Ld. Bench is drawn to sub-section 3 of section 124 of the Act providing a mandate that jurisdiction can be challenged within one month. In that circumstance, assessee's challenge of jurisdiction is illegal and invalid and, therefore, Ld. CIT(Appeal)'s decision is erroneous. 6.3 Even otherwise, ITO Ward-35(4) was having jurisdiction over the case since 21.03.2007 and thereafter, the assessee continuously filed ITR in the said jurisdiction, the ITRs of this assessment year 2012-13 u/s. 139 as well as u/s. 148 were filed before the said A.O. In that circumstance also the assessee cannot challenge the jurisdiction of the ITO, Ward-35(4) of AO of Ward-35(4). She has also not disclosed in her ITR that she is a director of a company. In this regard I rely on the decision of Hon'ble Delhi High Court in the favour of the revenue in the case of Abhishek Jain -Vs.- ITO in Writ Petition{Civil) No. 11844/2016 order dated 1st June, 2018 (Copy enclosed) which is squarely applicable in this case. I also rely on Hon'ble Allahabad High Court decision in 6. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla favour of the revenue in the case of Bal Chand Jain & Sons -Vs.- DCIT[2014]41 taxmann.com 524 order dated 30.10.2012. 6.4. In the instant case, the jurisdiction issue as raised by the assessee on 18.11.2019 was immediately taken care of and order u/s. 127 was passed by the PClT. Finally, the assessment order was passed by the AO after providing opportunities to the assessee. Thus, no prejudice was caused to the assessee in any manner. Kind attention of the Hon'ble Bench is invited to para 9 of page 14, 15 & 16 and further para-12 of page 21 of the decision of the Hon'ble Madras High Court dated 15.07.2021 in the case of M/s. Vedanta Ltd. in W.P No. 25529/2015 & M.P. NO. 1 of 2015. Finally he before me that the decision of the Ld. CIT(A) may kindly be reversed and that of AO's order may kindly be restored and confirmed. 7. Per contra, the Ld. Counsel for the assessee vide written submissions stated that it is the appellants submission that consequent to order passed by the PClT WB and Sikkim dated 15.11.2014 the jurisdiction over the appellants case no longer vested with ITO Wd 35(4), Kolkata. Yet a notice was issued by the ITO Ward 35(4) Kolkata u/s 148 dated 27.03.2019 and the same was served on the appellant. Since the said ITO had issued the statutory notice, in compliance with the same, return of income was filed with the said Officer. Subsequently, the ITO also issued notices u/s 143(2) and 142(1) dated 20.06.2019 and 21.06.2019. In response to the said notices, the appellant vide reply dated 29.08.2019 filed its objections before the ITO bringing to his attention that he did not hold or have jurisdiction over the appellant's case and therefore the proceedings initiated by him were without 7. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla jurisdiction. Subsequent to furnishing of objections the appellant received a notice from ITO Wd 36(7), Kolkata in response to which the appellant reiterated that the jurisdiction of the case did not rest with either Ward 35(4) or 36(7) thereafter, the appellant received an order u/s 127 of the IT Act passed by the Ld.PClT-12, Kolkata in which the Ld. Pr. ClT admitted that consequent to jurisdiction order passed by the Ld. PClT, WB and Sikkim dated 15.11.2014, ITO Wd 35(4), Kolkata did not hold jurisdiction but the officer having jurisdiction over the appellant in terms of the said order dated 15.11.2014 was the Ld.AClT Circle-13(2), Kolkata. 7.1 The appellant/assessee submits that the initiation of the impugned reassessment proceedings is bad in law and deserves to quashed in as much as the notice u/s 148 of the Act was issued by the AO who did not have valid jurisdiction over the appellants case at the time when the reasons were recorded and the notice was issued. It is the appellants contention that since the reasons were recorded and notice u/s 148 of the Act was issued by the AO who did not hold jurisdiction over the appellant, the notice issued by him was ab initio void and all proceedings thereafter were also ab initio void and nullity in the eyes of law. In the circumstances, therefore since there was a fundamental infirmity in initiation of reassessment proceedings any order passed pursuant to such invalid notice is void and deserves to be quashed. In support of the aforesaid submissions, the Appellant Assessee refers to the celebrated judgment of the Hon'ble Supreme Court rendered in the case of Kiran 5ingh v. Chaman Pas wan AIR 1954 SC 340, wherein the Hon'ble Supreme Court had held as under: 8. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it isin respect of the subject- matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties." 7.2 The Ld. Counsel for the assessee has also submitted the following details which available in the Paper Book Index:- Sl.No. Particular Page No. 1. Copy of the Notification dated 22.10.2014 issued by CBDT pursuant to which Notification No.1 dated 15.11.2014 was issued by PCCIT West Bengal and Sikkim in terms of which all existing 1-17 charges In the State of West Bengal were abolished and Jurisdictions were assigned afresh to different tax authorities with effect from 15.11.2014. 1-17 2. Notice dated 27.03.2019 issued u/ s 148 by ITO, Ward 35(4), Kolkata. 18 3. Notice dated 20.06.2019 issued u/s 143(2) by ITO, Ward 35(4), Kolkata. 19 4. Communication dated 16.12.2019 issued by ITO, Ward 36(7), Kolkata along with the order passed u/ s 120 of the Act by the Pr.CIT-12, Kolkata. 20-23 5. Rungta Irrigation Ltd. Vs. ACIT (113 taxmann.com 330) [ITAT Kol] 24-61 6. ITO Vs. Anamika Dealcom Pvt. Ltd (ITA No. 2179/Kol/2016 & CO No. 23/Kol/2019) [ITAT Kol] 62-69 8. I have heard the rival contentions and perused the material placed before me. The validity of re-assessment proceedings u/s. 143(3) r.w.s 147 of the Act are in challenge before me by the revenue authorities. It is not in dispute that the jurisdiction of the assessee lies with ACIT, Circle 13(2), Kolkata since the beginning of the alleged proceedings. This fact is further verified from the letter issued by the AO, ITO, W-36, Kolkata accepting assessee’s application and thereby transferring the 9. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla case of assessee to ACIT, Cir-13(2), Kolkata, who was having jurisdiction over the assessee. This fact is also not in dispute that the notice u/s. 148 of the Act issued by the AO, ITO, W 36(7) was not having jurisdiction over the assessee. It is also an admitted fact that the case record was transferred to AO, ACIT, Cir-13(2), Kolkata but no fresh notice was issued u/s. 148 of the Act. Notice u/s. 143(2) of the Act was issued by the AO, ITO, W-35(4), Kolkata, who was not having jurisdiction over the assessee. Under these facts and circumstances when the assessee challenged the validity of the notice issued u/s. 148 of the Act and legality of re-assessment proceeding the relief was granted by the ld. CIT(A), observing as follows:- “I have carefully considered the submissions of the appellant-petitioner and perused the reasons recorded for reopening of the assessment and the facts leading up to passing of the impugned order. The appellant's first objection proceeds on the premise that the proceedings u/s 148/147initiated by the Ld. A.O., the Income Tax Officer, Ward 35(4), Kolkata were ab initio void because the said officer never held jurisdiction over the appellant's case. On careful scrutiny of the facts I find that the consequent to the re-structuring carried out by the Department on 15.11.2014, the jurisdiction over the PAN of the appellant stood transferred to AClT, Circle 13(2), Kolkata. This fact was also admitted by the ITO, Ward 36(7), Kolkata in his letter dated 16.12.2019 when the appellant had challenged the jurisdiction being exercised by him and thereafter, he had transferred the case records to the charge of the Assistant Commissioner of Income tax, Circle 13(2), Kolkata. I therefore find force in the submissions of the Ld. AR of the appellant that on 27.03.2019 when the ITO, Ward 35(4), Kolkata recorded his satisfaction u/s 148(2) and proceeded to issue notice u/s 148 he was not the AO holding valid jurisdiction over the appellant's case. It is noted that on receipt of notice u/s 148, the assessee complied with the notice by filing the return, but simultaneously brought to the attention of the ITO, Ward 35(4), Kolkata the fact that the jurisdiction over the appellant's case always vested with AClT, Circle 13(2), Kolkata. On being satisfied with veracity of this material fact the ITO, Ward 36(7), Kolkata transferred the case records of proceedings-initiated u/s 148 of the Income Tax Act, 1961, to the charge of ACIT, Circle 13(2), Kolkata. The foregoing facts therefore clearly bring on record and prove beyond doubt that the ITO, Ward 35(4), Kolkata who recorded reasons to believe u/s 148(2) and issued notice u/s 148 on 27.03.2019, never held valid jurisdiction over the assessee's case. I therefore 10. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla hold that since in the present case the reasons to believe that income chargeable to tax for AY 2012-13 escaped assessment was recorded and the notice u/s 148 was issued by the officer who did not hold valid jurisdiction over the appellant, the notice u/s 148 suffered from serious infirmity and therefore bad in law. Any proceedings taken consequent to the notice which was without jurisdiction and every order passed consequent to the invalid notice is therefore ab initio void for lack of jurisdiction. This proposition is supported by the decision of the jurisdictional ITAT, Kolkata in the case of Chankya Finvest Pvt Ltd Vs ITO (34 taxmann.com 206). In this case the CIT Delhi had passed an order u/s 127 dated 04.01.2010 transferring jurisdiction over the assessee's case from ITO, Delhi to ITO Kolkata. After the order u/s 127 was passed on 04.01.2010, the ITO at Delhi initiated reassessment proceedings after recording reasons and issuing notice u/s 148 dated 25.03.2010 for AY 2003-04. Thereafter without their being fresh order u/s 124/127; the ITO, Delhi transferred the case records pertaining to reassessment for the AY 2003/04 to the charge of ITO, Kolkata who thereafter passed the order of assessment u/s 147/143(3). The assessee challenged validity of the proceedings and consequent order u/s 143(3)/147 on the ground that the notice u/s 148 was issued by the officer who did not hold valid jurisdiction over the assessee's case. The Hon'ble Tribunal upheld the assessee's objection by observing as under: "In view of the above principle regarding jurisdiction and facts of the present case, and the order passed by C1T-1, Delhi, transferring jurisdiction, from ITO New Delhi on 4-1-2010 subsequent action of the Assessing Officer i.e., New Delhi issuing notice under section 148 dated 25-3-2010 is invalid because the jurisdiction from ITO, New Delhi, Delhi to ITO Kolkata. At the time of passing of order by CIT, Delhi transferring jurisdiction from ITO, New Delhi dated 4-1- 2010 ITO, Kolkata, there is no proceedings pending before the ITO, Delhi and the transfer order for jurisdiction was passed on that date. The Commissioner, New Delhi passed order under section 127 on 1-1-2010 transferring the jurisdiction of the assessee to ITO, Kolkata and the jurisdiction in respect to every action for all assessment years lay with ITO, Kolkata and only he was competent to issue notice under section 148. Thus, the notice issued under section 148 by the ITO, New Delhi was bad and illegal in view of clear provisions of Act is quashed. Similar view was adopted in the decision rendered by the Bombay High Court in the case of CIT Vs Fiat Automobiles India Ltd (211 Taxman 570). For the reasons set out in the foregoing therefore, I thus find merit in the submissions of the AR that when the notice u/s 148 for assuming jurisdiction over the case of the appellant was issued invalidly, then the consequent order framed u/s 147/143(3) of the Act was ab initio void and bad in law. The impugned order therefore stands quashed.” 11. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla 9. The above finding of the ld. CIT(A) is well supported by the judicial precedence as well as uncontroverted fact that notice was issued u/s. 148 of the Act by the Assessing Officer (AO) not having jurisdiction over the assessee which, thus, renders the consequent assessment proceeding u/s.143(3) r.w.s 147 of the Act void ab initio. Further we find that similar view has also been taken by this Tribunal in the case of ITO Vs. Anamika Dealcom P.Ltd (ITA No. 2179/Kol/2016 & CO No.34/Kol/2019 for the assessment year 2012-13 dated 22-10-2020 observing as follows:- Order dt. 22-10-2020 in ITA No. 2179/Kol/2016 & CO No. 34/Kol/2019:- “5. We have given our thoughtful consideration to the above question of Assessing Officer’s jurisdiction going to root of the matter. We would like to reiterate here that Revenue itself is fair enough in admitting the clinching fact that ITO, Ward 24(3), Kolkata only had issued 143(2) notice dated 07- 08-2013 to the assessee without having his jurisdiction since it was the TRO- 4, Kolkata who was supposed to frame assessment in the taxpayer’s case. The latter authority never issued sec.143(2) notice to the assessee. There can hardly be any dispute that issuance of notice u/s. 143(2) from the competent Assessing Officer is a mandatory condition as per ACIT vs. Hotel Blue Moon (2010) 321 ITR 362. This tribunal’s in D. Craft Entertainment Pvt. Ltd vs. Income Tax Officer, Ward-6(1), Kolkata in ITA No. 1461/Kol/2017 decided on 01.10.2018 holds that such an assessment in absence of section 143(2) notice issued from the Assessing Officer having jurisdiction is rendered invalid as under:- “2. The assessee has raised legal issues by preferring additional grounds of appeal (i) that no notice u/s. 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the "Act") was issued by ITO, Ward-6(l), Kolkata (who framed the assessment order) was issued or served on the assessee. And the additional ground no. (ii) is that the notice issued by ITO, Ward No. 34(2), Kolkata u/s. 143(2) of the Act was without jurisdiction, hence, the assessment order framed by ITO, Ward-6(l), Kolkata without issuing notice u/s. 143(2) of the Act was null in the eyes of law and, therefore, deserves to be quashed. 3. Briefly stated facts as observed by the AO, Ward No. 6(1), Kolkata are that the assessee company filed its return of income electronically declaring income ofRs.8950/-. Later case was selected for scrutiny. Notice 12. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla u/s. 143(2) of the Act served from office of ITO, Ward-34(2). Then the jurisdiction of the case was transferred to ITO, Ward-6(1), Kolkata and a notice was also issued from this ward. According to AO, summons u/s. 131 of the Act were sent to the directors of the assessee company but summons were returned un-served and no compliance was made on behalf of the assessee company. Thereafter, show cause notice was sent through speed post which has been returned un-served. As no compliance was made on behalf of the assessee till the completion of assessment, the AO was let with no alternative but to pass the assessment order dated 13.03.2015 u/s. 144 of the Act. Thereafter the AO observed that the assessee company was incorporated on21.01.2009 and has shown the figure of Rs.15,36,90,0001- as share premium during the assessment year under consideration. According to AO, the source of huge premium has not been explained by the assessee company. Therefore, considering the above share capital claimed by the assessee company to have been introduced during the FY 2011-12 with high premium amounting to Rs.15,66,00,000/- (share capital of Rs.29,10,000/- +premium of Rs.15,36,90,000/-) was treated as unexplained cash credit in the books of the assessee company u/s. 68 of the Act. Aggrieved, by the said order assessee preferred an appeal before the Ld. CIT(A), who confirmed the action of the AO. Aggrieved, the assessee is in appeal before us. 4. We have heard rival submissions and gone through the facts and circumstances of the case. Before us, the Ld. AR while raising the legal issue contended that no notice was issued by the ITO, Ward-6(1), Kolkata u/s. 143(2) of the Act and which was served upon the assessee; and even though the notice was issued u/s. 143(2) of the Act was by ITO, Ward- 34(2), Kolkata [as per ITO, Ward -6(1)] who had no jurisdiction to assess the corporate entity like the assessee company, hence the assessment order framed by the AO(ITO, Ward-6(1), Kolkata) without issuing notice u/s. 143(2) upon the assessee company is 'null' in the eyes of law and, therefore, deserves to be quashed. It was also submitted by the Ld. AR that the assessee company did not receive any scrutiny notice u/s. 143(2) of the Act from ITO, Ward-34(2), Kolkata though it has been acknowledged by the AO in the assessment order by ITO, Ward-6(1), Kolkata. Since the assessee did not receive any notice the assessee company could not represent or file documents and comply before the ITO the said proceedings. It was also submitted by the Ld. AR that the assessee company was not aware of the purported transfer of jurisdiction from ITO, Ward-34(2), Kolkata to ITO, Ward-6(1), Kolkata since it did not receive any notice u/s. 127 of the Act from the Pr.CIT-12, Kolkata transferring the file from ITO, Ward-34(2), Kolkata to ITO, Ward-6(1),Kolkata. He also brought to our notice that the assessee company did not receive any notice u/s. 142(1) of the Act from ITO, Ward-6(1), Kolkata as stated by AO in the assessment order. Because of which there was no compliance from the part of assessee in the said proceedings before ITO, Ward-6(1), Kolkata. Ld. AR of the assessee further submitted that assessee company's registered office is situated at 8, Lyons Range, Kolkata-700001, 13. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla therefore, the territorial and entity-wise jurisdiction were vested with ITO, Ward-6(1), Kolkata by virtue of Notification issued by CBDT u/s. 120 of the Act dated 31.07.2001(Notification No. 228/2001) and also by virtue of latest Notification No. 50/2014 dated 22.10.2014. So, according to Ld. AR, since the ITO, Ward-34(2), Kolkata did not enjoy any jurisdiction over the assessee-company and thus the notice u/s. 143(2) of the Act claimed to have been issued by the ITO, Ward-34(2), Kolkata against the assessee company was without jurisdiction so, bad in law and, therefore, the notice issued by an officer/authority who does not enjoy jurisdiction is non- est in the eyes of law. Ld. AR also brought to our notice that the claim of ITO, Ward-6(1), Kolkata in the assessment order that the file of assessee was transferred from ITO, Ward-34(2), Kolkata is itself illegal since it was pointed out by the Ld. AR that in the impugned assessment order there was no reference or mention by the AO (ITO Ward-6(l), Kolkata) of any order of transfer of jurisdiction passed by the concerned Pr. CIT u/s. 127 of the Act. According to Ld. AR, in any case, the assessee has not been served with any such order i.e. transfer order u/s. 127, or notice u/s. 143(2) or 142(1) etc. Thus, according to Ld. AR, the transfer of file from ITO, Ward- 34(2), Kolkata to ITO, Ward-6(1), Kolkata itself is bad in law; And in any case the assessment order passed by ITO, Ward-6(1) without issuing notice u/s. 143(2) within the prescribed period of time as statute stipulates is also bad in law and needs to be quashed. On the other hand, the Ld. DR heavily relied on the orders of the lower authorities and urged before the bench to confirm the action of Ld.CIT(A). 5. After going through the aforesaid contentions, we note that the assessee is a corporate entity, being a company registered under the Companies Act, 1956 and having registered office in the area mentioned in item (a) of column (4) i.e PIN 700 001 of the notification no. 228/2001 dated 31.07.2001 (page 18 of paper book) issued by CBDT u/s. 120 of the Act and also in reference to later Notification of CBDT No. 50/2014dated 22.10.2014. The Designated Income Tax Authority as per serial No. 159 is Principal Commissioner/Commissioner of Income Tax, Kolkata-2, Headquarter is Kolkata, West Bengal (Page 14 of paper book). Whereas a perusal of Notification of CBDT No. 228/2001 dated 31.07.2001 (Page 20 of paper book) reveals that Commissioner of Income Tax, Kolkata-XII has jurisdiction over persons other than companies deriving income from sources other than income from business or profession (though residing in PIN 700001). We also note from Notification No. 50/2014 dated 15.11.2014, issued from the office Principal Chief Commissioner of Income-tax, West Bengal &Sikkim which takes effect from 15.11.2014 (page 5 of paper book) that Principal Commissioner of Income Tax/Commissioner of Income Tax, Kolkata-2, is the designated officer and under him Addl ClTl/Jt..CIT, Range-6, Kolkata has been placed under his charge (page 7 of paper book). On perusal of page 9 reveals that under the Pr. ClT/ClT, KOlkata-12 the Addl..CIT/Jr. CIT. Range-34, Kolkata has been placed under him (page 9 of the paper 14. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla book).Thus from a perusal of the aforesaid facts reveal that the assessee being a company registered under the Companies Act, 1956 and having its registered office in area covered by Pin No.700001,the Pr. ClT/ClT, Kolkata:2 enjoyed jurisdiction over the assessee Company. In the light of the Notification of CBDT dated 22.10.2014 [as well as Notification No. 228/2001 dated 3J.07.2007J and, therefore, ITO, Ward-6(1), Kolkata who falls under the jurisdiction of Pr. ClT/ClT, KOlkata-2 only had the jurisdiction to assess the income of the assessee. Thus we record a find in of fact and law that the ITO Ward-6 / Kolkata was the officer authority who was vested with the 'jurisdiction of Assessee i.e. AO of the assessee com an. We note that the impugned assessment order framed by the AO) dated 13.03.2015 was passed by the jurisdictional ITO, Wd-6(1), Kolkata. However, the main grievance of the assessee company is that before scrutinizing the assessment u/s. 143(3) of the Act, notice u/s. 143(2) of the Act needs to have been issued by ITO, Ward-6(1), Kolkata was sine qua non as held by the Hon'ble Supreme Court in Hotel Bluemoon 321 ITR 362 (SC) was in fact not issued by him [ITO, Wd-6(1), Kolkata] before completing the assessment u/s. 143(3)1144 the Act. So the jurisdictional fact which needs to be ascertained by us is whether ITO, Ward-6(1), Kolkata issued notice on the assessee u/s.143(2) of the Act before framing the scrutiny assessment. We note that the ITO, W d-6(1),Kolkata has passed a best judgment assessment u/s. 144 of the Act alleging nonparticipation on the part of the assessee company during the assessment proceedings. We note that in the assessment order framed by ITO,Wd-6(1) Kolkata, he has mentioned about notice u/s.143(2) of the Act issued not by him but by ITO, Wd-34(2), Kolkata and has mentioned clearly that he [ITO, Wd-6(1), Kolkata] has issued only notice u/s. 142(1)of the Act. We note from a perusal of the impugned assessment order passed by ITO, Wd-6(1), Kolkata there is no whisper/mention about any notice issued by him u/s. 14 of the Act or even notice issued before framing best judgment u/s.144 of the Act. As per the ITO, Wd-6(1), Kolkata, notice u/s. 143(2) of the Act has been issued by ITO, Wd-34(2),Kolkata and not by himself before framing the scrutiny assessment u/s.143(3)/144 of the Act. It is no longer res integra that issuance of notice u/s.143(2)is sine qua non before deciding to proceed to scrutinize the assessment of income of an assessee u/s. 143(3) of the Act. Since the department has failed to adduce any evidence to contradict the claim of assessee that ITO, Wd-6(1), Kolkata who was the jurisdictional AO did not issued notice u/s. 143(2) of the Act before deciding to scrutinize and frame assessment u/s143(3)/144 of the Act, the legal challenge made by the assessee by way of additional ground nos. 1 to 3, (which reads as under) needs to succeed: "Additional Ground-I: For that no notice issued u/s 143(2) of the IT Act 1961 was served on the assessee and hence the assessment order passed deserves to be quashed. 15. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla Additional Ground-2: For that the notice issued u/s 143(2) of the IT Act1961 was beyond jurisdiction and bad in law and hence the assessment order passed deserves to be quashed. Additional Ground-3: For that the transfer of case without order u/s 127of the IT Act 1961 was bad in law and hence the assessment order passed deserves to be quashed. " . 6. We find that no notice u/s. 143(2) was issued by ITO, Wd-6(1), Kolkata before completing the assessment. We note that ITO, Wd-34(2), Kolkata did not enjoy the jurisdiction over the assessee company by virtue of both the earlier Notification No.228/2001 dated 31.07.2001(CBDT) as well as the latest Notification No. 5012014 dated 22.10.2014 of CBDT as discussed above. Therefore, the assessment completed by ITO, Wd- 6(1), Kolkata on the strength of the notice issued u/s. 143(2) of the Act by ITO,Wd-34(2), Kolkata (who did not enjoy jurisdiction) is non-est in law and, therefore, is bad in law and transfer of the jurisdiction as contemplated u/s. 127 of the Act to ITO, Wd-6(l), Kolkata. The Hon'’ble jurisdictional High Court in Kusum Goyal (2010) 329 ITR 283 (Cal) has clearly spelt out that the ITO on its own cannot transfer the jurisdiction without order from the competent authority. In this case, we note that there is no mention in the assessment order of any transfer order passed by the concerned CIT-12, therefore, the contention of the ITO, Ward-6(1), Kolkata that the jurisdiction has been transferred from ITO,Wd-34(2) to ITO, Wd- 6(l), Kolkata is also without authority and vitiates the transfer of jurisdiction as claimed by the AO in the assessment order and thus this factual so vitiates the assessment order. In the light of the above as well as the contention of the assessee that no opportunity of hearing was rendered to it by ITO, Wd- 6(1), Kolkata before framing assessment u/s.144of the Act which omission on the part of AO also is against principle so factual justice and the impugned assessment u/s 144 of the Act is fragile for non-adherence of principle of natural justice on the part of AO. Therefore, looking from any angle as discussed above and especially taking note that the impugned assessment order passed by the ITO, Wd-6(l). Kolkata without issuing notice u/s. 143(2) of the Act is corum non-judice and therefore null in the eyes of law and, therefore, need to be quashed and we quash the impugned assessment order dated 13.03.2015 passed by ITO, Wd-6(l), Kolkata. The additional grounds raised by the assessee are allowed. “ 6. We adopt the above detailed discussion mutatis mutandis to conclude that impugned assessment order dated 22-03-2015 had been framed without the competent Assessing Officer’s sec. 143(2) notice issued to the assessee. The same is declared invalid for this precise reason. The assessee succeeds in its Cross Objection No. 34/Kol/2019. The Revenue’s appeal ITA No. 2179/Kol/16 for the assessment year 2012-13 is dismissed as the necessary corollary. 16. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla All other Revenue’s and assessee’s pleadings in above appeal and cross objection are rendered academic. 7. This Revenue’s appeal ITA No. 2179/Kol/2016 is dismissed and assessee’s Cross Objection No. 34/Kol/2019 is allowed. Ordered accordingly. 10. I, thus, respectfully following the ratio laid down by the Hon’ble Court(s) and the view taken by this Tribunal, am of the considered view that since the valid notice u/s. 148 of the Act was not issued by the respective AO(Assessing Officer) having jurisdiction over the assessee, the said notice was invalid and the assessment proceedings carried out thereafter u/s.143(3)/147 of the Act are void ab inito and liable to be quashed. Thus, the legal issue raised by the revenue is dismissed. 11. As far as other grounds raised by the revenue on merits are concerned, since I have confirmed the impugned order of the ld. CIT(A) quashing the assessment framed u/s. 143(3)/147 of the Act and deleting the addition(s), if any made by the AO dealing with the remaining grounds is merely academic in nature and liable to be dismissed as infructuous. प रणामत: नधा रती क अपील खा रज क जाती है। 12. In the result, the appeal of the revenue is dismissed. आदेश ख ु ले यायपीठ म दनांक 26-10-2022 को उ घो षत। The order pronounced in the open Court on 26 -10-2022 Sd/- (MANISH BORAD) ACCOUNTANT MEMBER Dated :26-10-2022 17. ITA No. 285/Kol/2021 AY 2012-13 Smt. Manjula Shukla **PP/SPS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1.अपीलाथ /Appellant/: DCIT, Cir-13(1), Aaykar Bhawan Poorva, 6 th Fl., 110 Shantipally, Kolkata-107. 2. यथ /Respondent/: Smt. Manjula Shukla, 7 Kings Road, Howrah-711101 . 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण कोलकाता / DR, ITAT, Kolkata 6.गाड फाइल/Guardfile. By order/आदेश से, /True Copy/ Assistant Registrar ITAT, Kolkata