Income Tax Officer, Ward-2(3)(8), Surat V. Mahaveer Shantilal Jain, Surat

ITA 453/SRT/2019

AI Insights

The case involves an appeal by the Revenue against the decision of the Commissioner of Income Tax (Appeals) which had restricted the addition made by the Assessing Officer on account of bogus purchases. The primary legal issue was the validity of the notice issued under section 143(2) of the Income Tax Act, 1961, by an officer who did not have jurisdiction over the assessee. The Tribunal examined the procedural history, including the issuance of notices and the transfer of jurisdiction, and found that the notice under section 143(2) was issued by a non-jurisdictional officer, leading to the quashing of the assessment order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301874 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 02-10-2019
• Other Referred Cases: N K Proteins Ltd vs. CIT, Tejua R. Kapadia vs. CIT, Sanghvi Export International Ltd vs. CIT, Karamchandra Rubber Industries vs. CIT, Fancy Wear vs. CIT, Surat Jewells Co. vs. CIT, Sahjanand Export vs. CIT, Rushabh International vs. CIT, Base Industries Ltd vs. CIT, Mahalchand Motilal Kothari & Co. vs. CIT, West Bengal State Electricity Board vs. CIT, Pavan Morarka vs. CIT, Capstone Securities Analysis (P) Ltd vs. CIT, Eversafe Securities (P) Ltd vs. CIT, Krishnendu Chowdhury vs. ITO, Laxman Das Khandelwal vs. CIT, Hotel Blue Moon vs. CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Transfer pricing; Search and seizure; International transaction; Period of limitation; Question of law; Deemed dividend; Validity of assessment; Accommodation entries; Procedural lapse; Competent authority; Block assessment; Time period of passing order; Reason to believe; Reassessment proceedings; Set aside
• Section: 147; 148; 263; 63; 132; 144; 143(3); 142(1); 153A; 2(22)(e); 260A; 143(1); 205; 292BB; 143(2); 124(5); 158BC; 2(A); 13; 153; 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.453/SRT/2019 Ǔनधा[रण वष[/Assessment Year: (2013-14) (Physical Hearing) The ITO, Ward-2(3)(8), Surat. Vs. Mahaveer Shantilal Jain, Prop. M/s Mukesh Diamonds, Office No.401, 1 st Floor, H.No.5/1171/72/73/1090, New DTC, Hath Falia, Haripura, Surat – 395009. (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AQUPJ6439L Appellant by Shri Ritesh Mishra, CIT(DR) Respondent by Shri P. M. Jagasheth, CA Date of Hearing 08/09/2023 Date of Pronouncement 25/09/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the Revenue, pertaining to Assessment Year (AY) 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-1, Surat [in short “the ld. CIT(A)”], in Appeal No. CIT(A)-1/10690/2018-19, dated 01.07.2019, which in turn arises out of an assessment order passed by Assessing Officer, under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’), dated 23.03.2016. 2. The grounds of appeal raised by the Revenue are as follows: “(i) On the facts and circumstances of the case and in Law, the Ld. CIT(A) has erred in restricting the addition made by the AO to the extent of 5% of entire purchase i.e. Rs.7,37,44,213/- on account of bogus purchases. (ii) On the facts and circumstances of the case and in Law, the Ld. CIT(A) has failed to appreciate the fact that the entire purchase from alleged concerns was bogus and it was only to suppress the profit of the beneficiaries which has Page | 2 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain been duly substantiated by the statements on oath given by the entry providers. (iii) On the facts and circumstances of the case and in Law, the Ld. CIT(A), Surat ought to have upheld the order of the Assessing Officer. It is, therefore, prayed that the order of the Ld. CIT(A)-1, Surat may be set-aside and that of the Assessing Officer’s order may be restored.” 3. The Assessee has also raised additional ground of appeal, which is reproduced below: “1. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in issuing notice u/s 143(2) of the Income Tax, 1961 on 02.09.2014 by the ITO, Wd., Kishengarh, Rajasthan without the Jurisdictional Authority, so the notice u/s 143(2) of the Income Tax Act, 1961 is invalid and void ab initio. Hence, the Assessment u/s 143(3) of the I.T. Act, 1961 is void ab initio.” 4. Succinctly, the factual panorama of the case is that assessee before us is an Individual and filed his return of income for assessment year (A.Y.) 2013-14, declaring total income at Rs.4,69,040/- on 29.09.2013. The notice u/s 143(2) of the Act was issued on the assessee, on 02.09.2014, which was duly served by Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan. Subsequent to assignment of the case to the assessing officer, another notice, giving assessee fresh opportunity of being heard, was issued on 11.06.2015 and served upon the assessee. The notice u/s 142(1) of the Act, calling for various details, was issued on 17.08.2015 and served upon the assessee. 5. In response to the notices under sections 143(2) and 142(1) of the Act, the assessee furnished the details / explanation before the assessing officer. 6. The assessing officer observed that during the year under consideration, the assessee was engaged in the business of Import, export, and trading in all kinds of diamonds in the name and style of his proprietary concern viz. Divya Jewels. During the course of assessment Page | 3 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain proceedings, it was noticed by the assessing officer that assessee has made transactions with the entities of Rajendra Jain and Bhanwarlal Jain Group. The assessing officer was in possession of information that a search and seizure action has been carried out by the Investigation Wing, Mumbai on the Rajendra Jain and Bhanwarlal Jain Group, who were indulged in providing of accommodation entries in the form of unsecured loans, bogus purchases / sales to the interested parties. 7. The assessing officer, in his assessment order, vide para nos. 5 to 5.6 has discussed the facts of the case and modus operandi of business of Rajendra Jain and Shri Bhanwarlal Jain Group. The assessing officer observed that during the course of search action, it was revealed that the said group (Rajendra Jain and Shri Bhanwarlal Jain Group) is exclusively engaged in the business of issuing non-genuine purchase bills and also unsecured loan accommodation entries to various parties. It is thus established from the search and seizure action that the alleged concerns of Rajendra Jain and Bhanwarlal Jain Group are all paper companies/proprietorships and with no real business activities, operating solely with the purpose of facilitation of fraudulent financial transactions which includes providing accommodation entries in the form of unsecured loans to the interested parties, issuing of bogus sale / purchase bills to various parties etc. During the course of search and seizure action in the case of Shri Rajendra Jain and Shri Bhanwarlal Jain Group of cases on 03.10.2013, by the DGIT (Inv), Mumbai, it was found that there are name-sake dummy directors / partners / proprietors / brokers, etc. These concerns were being actually managed by Shri Rajendra Jain and Shri Bhanwarlal Jain. These group concerns were believed to be concerns actively involved in providing non-genuine purchase bills and also unsecured loan accommodation entries to various interested parties. As a result of the search and seizure action, it was conclusively proved that Page | 4 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain these diamond concerns are only on paper base with no real business activities. Findings of the search action on Shri Rajendra Jain and Shri Bhanwarlal Jain reveals that Shri Rajendra Jain and Shri Bhanwarlal Jain and their associates manage, control and operate numerous concerns in the name of various persons who are shown as name-sake directors, partners and proprietors through which they provide accommodation entries of loans and advances, purchase and sale and unsecured loans to various parties / beneficiaries. The name sake / dummy Directors / proprietors / Partner of all these concerns admitted on oath that they were merely employees of Rajendra Jain and Bhanwarlal Jain and were looking after miscellaneous office work like depositing cheques in banks, handling over parcels to clients, making data entry etc. All the concerns are shown to be engaged in import of diamonds. However, when these name-sake directors / Partners/ Proprietors were specifically asked to explain as to how they contacted the parties from whom the imports have been made in the respective concerns, they were unable to comment on the same. They all admitted of not having any personal contact with any of the importers either through phone or email. The facts mentioned above prove that these employees have never made any import on their own and all the imports in the concerns in which they are shown as directors, partners and proprietors and are made at the direction of Rajendra Jain and Bhanwaral Jain. 8. Shri Rajendra Jain and Shri Bhanwarlal Jain, in their statements recorded under section 132(4) of the Income Tax Act, 1961, has admitted that they manage and controls the business affairs of all the concerns in which the persons who were their employees are also shown as directors, partners and proprietors. The List of group concerns operated and managed by Shri Rajendra Jain and Shri Bhanwarlal Jain was obtained from him during the course of search. In the backdrop of the facts and Page | 5 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain circumstances discussed in earlier paragraphs, the assessing officer was of the view, that the assessee had only obtained bogus bill from the above mentioned group concerns of Shri Rajendra Jain and Shri Bhanwarlal Jain of Rs.7,37,44,213/- without actually getting the material. Thus, these bills issued by the said group concern is nothing but accommodation entry. Hence, the accommodation entry received from Shri Rajendra Jain and Bhanwarlal Jain group concerns to the tune of Rs.7,37,44,213/- was treated by the assessing officer, as bogus purchases and added to the total income of the assessee. 9. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the Ld. CIT(A), who has restricted the addition from 100% to 5% of bogus purchases, observing as follows: “10.1.7 It is further seen that the Honorable Gujarat High Court in the cases decided subsequent to N K Proteins ltd (supra) has not followed it, viz in the cases of Jagdish H. Patel, TA No.411 of 2017 dtd 01/08/2017 (8% disallowance) and TEJUA ROHITKUMAR KAPADIA, Surat in TA No. 691/2017 dated 18.09.2017 (0% disallowance). It is further seen that the Hon., Supreme Court has confirmed the decision of Hon Guj HC in Tejua R. Kapadia in SLP (C) Diary No(s). 12670/2018 dated 04.05.2018. This goes to show that the decision of Gujarat High Court in the case of N K Proteins (Industries) Ltd (supra) is specific to the facts of that case. 10.1.8 In the instant appeal, there is no such adverse finding as in the case of N. K. Proteins (supra). The facts in instant appeal are identical to Gangani Impex (supra) and the cases decided by the jurisdictional ITAT (supra). In view of this, respectfully following jurisdictional ITAT, the disallowance is restricted to 5%. The AR has furnished orders Hon'ble ITAT Mumbai , Delhi and Kolkata wherein, an identical circumstances & factual matrix involving the same accommodation entry providers the entire disallowance made by Ld. AO was deleted (Sanghvi Export International Ltd. ITA No. 3305, 3375/Mum/2017 dated 21.08.2018, Karamchandra Rubber Industries ITA No.6599/Del/2014, 12.02.2018 M/s. Vaman International Pvt., ITA 1040 & 1041 /M/2017 dtd 27.09.2017, Fancy wear ITA No. 1596/M/2016 dtd. 20.09.2017, Surat Jewells Co. ITA No. 1581/Kol/2016 dated 05.05.2017. The AR also furnished copies of order of CIT(A) Valsad in the case of (1) Sahjanand Export CIT(A)/vls/236/2016-17 dtd. 24.08.2017, (2) Rushabh International No.CIT(A)/vls/ 102/2016-17 dtd. 14.02.2018, which in the disallowances is restricted to 2% of impugned purchases. However, since I have already taken a view of disallowing 5% of purchases and since it is confirmed by Hon'ble jurisdictional ITAT, Surat Bench as discussed in para above; the above decisions of ITAT Mumbai/ Kolkata are not followed. Page | 6 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 11. In view of above discussion the disallowance is restricted to 5% of the impugned purchases as under: A.Y. Unverified purchases Disallowance confirmed 2013-14 Rs.7,37,44,213/- Rs.36,87,210/- 12. In the result the appeal is partly allowed.” 10. Aggrieved by the order of Ld. CIT(A), the Revenue is in appeal before us and assessee has also filed additional ground under Rule 11 read with Rule 27 of the ITAT Rules, which is reproduced below for ready reference: “1. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in issuing notice u/s 143(2) of the Income Tax, 1961 on 02.09.2014 by the ITO, Wd., Kishengarh, Rajasthan without the Jurisdictional Authority, so the notice u/s 143(2) of the Income Tax Act, 1961 is invalid and void ab initio. Hence, the Assessment u/s 143(3) of the I.T. Act, 1961 is void ab initio.” 11. Learned Counsel for the assessee, pleaded that above legal ground, should be admitted by the Tribunal as all the facts relating to above cited additional ground were before the assessing officer. However, ld DR for the Revenue opposed the plea taken by the ld Counsel for the assessee, and argued that at this stage the assessee cannot take this legal ground. 12. We have heard both the parties on this preliminary issue. We note that assessee has raised the additional ground on the legal issue challenging the validity of assessment stating that notice under section 143(2) was not issued to the assessee, as per the provisions of the Act. We note that facts relating to notice under section 143(2 ) of the Act, were there before the assessing officer. We note that it is purely a legal issue and all facts are already on record which goes to the root of the matter and no further inquiry is required for deciding the same as all facts are already on record. Therefore, in the light of ratio laid down by the Hon'ble Supreme Court in the case of National Thermal Power Company Page | 7 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain Ltd., vs. CIT (1998) 229 ITR 382 (SC), we admit the additional ground raised by the assessee. 13. First, we shall adjudicate additional ground raised by the assessee, as it goes to the root of the matter. 14. Shri P. M. Jagasheth, Learned Counsel for the assessee, begins by pointing out that assessee under consideration had filed his return of income for assessment year (A.Y.) 2013-14, declaring total income at Rs.4,69,040/-, on 29.09.2013. The notice under section 143(2) of the Act was issued on the assessee, on dated 02.09.2014, which was duly served by Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan. Subsequent to assignment of the case to the other assessing officer, another notice giving assessee fresh opportunity of being heard was issued on 11.06.2015 and served upon the assessee. The notice u/s 142(1) of the Act calling for various details was issued on 17.08.2015 and served upon the assessee. In response to the notice u/s 143(2) and 142(1) of the Act, the assessee furnished the details / explanation before the assessing officer. The ld Counsel submitted that notice issued by the assessing officer under section 143(2) of the Act is invalid. The assessee filed return of income in Surat, however, the assessing officer which is based on Kishengarh- Rajasthan, has issued notice under section 143(2) of the Act on dated 02.09.2014 who is not jurisdictional assessing officer of the assessee. However, the assessment in the case of the assessee was framed by the assessing officer based on Surat, which is not tenable in law. Since the assessing officer, who is based on Kishengarh- Rajasthan, has issued notice under section 143(2) of the Act on dated 02.09.2014, therefore assessment should have been framed by the assessing officer, who is based on Kishengarh- Rajasthan, however, the assessment was framed by the assessing officer who is based on Surat, therefore, assessment framed Page | 8 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain by the assessing officer is not valid and hence it should be quashed. The ld Counsel also distinguished the order of Coordinate Bench of ITAT, Surat in the case of Base Indistries Ltd, ITA No. 3424/Ahd/2015 for assessment year 2011-12, order dated 08.06.2022. The ld Counsel stated that in the case of Base Indistries Ltd(supra) it was mentioned in the order of CCIT- Surat under section 127 of Act, that the case was transferred considering the monetary limit of less than Rs. 20.00 lacs as per Board’s Instruction No.01/2011 [F No. 187/12/2010-IT(A-I)] dated 31/01/2011. The ld. Sr. DR furnished copy of letter for transferring the case of assessee from Assistant Commissioner of Income Tax (ACIT), Circle-Vapi to Income Tax Officer (ITO), Ward-1, Vapi. Thus due to monetary limit and as per CBDT instruction the case was transferred, which is not applicable to the assessee under consideration. 15. On merit, ld Counsel submitted that since the assessee has submitted bills, vouchers, cash book, profit and loss account, balance sheet and stock statement therefore no any addition should have been made in the hands of the assessee. Besides, assessee`s sales were not doubted therefore, purchases should be considered as genuine, as there is no sale without purchases. 16. In respect of additional ground of assessee, the Learned Departmental Representative (ld. DR) for the Revenue submitted written submissions, which are reproduced as follows: “Resp. Sir, Subject: Appeal in the case of Mahaveer Shantilal Jain (ITA No.453/SRT/2019) for A.Y.2013-14-Reg. Ref: Your office letter bearing No. SRT/CIT-DR/ITAT/MSJ/2023-24 dated 03.05.2023. ****** Kindly refer to the above. 2. As intimated that the assessee has filed additional ground before the Hon'ble ITAT, Surat Bench, Surat wherein the jurisdiction over the assessee has been challenged. It was further submitted by the assessee that the notice Page | 9 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain issued u/s 143(2) was without having jurisdiction over the case is not valid for the A.Y, 2013-14. 3. In the matter, it is submitted that the assessee's case for A.Y. 2013-14 has been selected for scrutiny under Computer Assisted Scrutiny selection (CASS). At that time the PAN of the assessee lies with ITO, Kishangadh. Therefore considering the time barring nature of the case, notice was issued by the ITO, Kishangadh and duly served to the assessee's current address situated at Office No. 401, 6-2259, 4 th Floor, Santkrupa Appt, Havada Sheri Mahidharpura, Surat. Thereafter, vide order No. 16/2014-15 dated 20.01.2015 of the CIT, Ajmer has passed order u/s 127 of the Act and transferred the PAN and notice issued u/s 143(2) of the Act for further necessary action to the ITO, Ward-2(3X8), Surat. Subsequently, the ITO, Ward-2(3)(8) has passed order u/s 143(3) of the Act on 23.03.2016. Hence, the claim of the assessee is not justified. 4. The report is submitted for your kind perusal and further necessary direction.” 17. The ld DR furnished before the Bench, the report submitted by Assessing Officer, which is reproduced below: Page | 10 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain Apart from this, ld DR also relied on the order of the Coordinate Bench of ITAT, Surat in the case of Base Indistries Ltd, ITA No. 3424/Ahd/2015 for assessment year 2011-12, order dated 08.06.2022 18. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that the notice under section 143(2) of the Act was issued on the assessee, on dated 02.09.2014, which was duly served by Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan. Whereas, the assessment was framed by the Income Tax Officer, ward 2(3)(8), Surat. It is undisputed fact that Income Tax Officer, ward 2(3)(8), Surat, has not issued notice under section 143(2) of the Act. In fact, notice under section 143(2) of the Act, was issued by the Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan, who is not the assessing officer of the assessee under consideration, hence it will be deemed that no any notice under section 143(2) of the Act was issued to the assessee by the Income Tax Officer, ward 2(3)(8), Surat, who has framed the assessment order under section 143(3) of the Act, dated 23.03.2016. 19. On the other hand, ld DR stated by way of written submission that the assessee's case for assessment year (A.Y.) 2013-14 has been selected for scrutiny under Computer Assisted Scrutiny selection (CASS). At that time the PAN of the assessee lies with ITO, Kishangadh. Therefore, considering the time barring nature of the case, notice was issued by the ITO, Kishangadh and duly served to the assessee's current address situated at Office No. 401, 6-2259, 4 th Floor, Santkrupa Appt, Havada Sheri Mahidharpura, Surat. Thereafter, vide order No. 16/2014-15 dated 20.01.2015 of the CIT, Ajmer has passed order u/s 127 of the Act and transferred the PAN and notice issued u/s 143(2) of the Act for further Page | 11 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain necessary action to the ITO, Ward-2(3)(8), Surat. Subsequently, the ITO, Ward-2(3)(8) has passed order u/s 143(3) of the Act on 23.03.2016. Hence, the claim of the assessee is not justified. 20. We have considered the submissions of both the parties. We note that assessee`s case before us is relating to assessment year 2013-14. For assessment year 2012-13, the assessee received the demand notice under section 156 of the Act (vide paper book page no.1) from the Income Tax Department wherein the Income Tax Department has mentioned the following address: “Mahaveer Shantilal Jain, 401, 6-2259, 5 th Floor, Sant Krupa Complex, Havara Shri, Mahidharpura, Surat” Therefore, ld Counsel contended that when the Surat Income Tax Department, was sending various notices to the assessee on Surat in assessment year 2012-13 then how can Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan can issue the statutory notice under section 143(2) of the Act in assessment year 2013-14. 21. We note that assessee`s scrutiny assessment was completed on 09.03.2015 under section 143(3) of the Act for assessment year 2012-13 by the Income Tax Officer-ward-2(3)(8), Surat ( vide paper book page no.2) and notice under section 143(2) of the Act, was also issued by the Income Tax Officer-ward-2(3)(8), Surat for assessment year 2012-13 and the assessee’s address in Surat is as follows: “Mahaveer Shantilal Jain, 401, 6-2259, 5 th Floor, Sant Krupa Complex, Havara Shri, Mahidharpura, Surat” However, for subsequent assessment year 2013-14 (the assessment year under consideration) the notice under section 143(2) of the Act, was issued by the Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan, Page | 12 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain which is not acceptable, particularly when the assessee`s previous assessments were completed by the Income Tax Officer-ward-2(3)(8), Surat and notices under section 143(2) were also issued by the Income Tax Officer-ward-2(3)(8), Surat. Hence, we note that notice under section 143(2) of the Act, for assessment year 2013-14, issued by the Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan, is without any jurisdiction. When the notice under section 143(2) of the Act, for assessment year 2013-14 was issued by the Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan, who is not the assessing officer of the assessee, then in that circumstances the assessment framed by the assessing officer under section 143(3) of the Act, dated 23.03.2016 is not a valid assessment in the eye of law. 22. Before us, the assessee submitted copy of Income Tax Return for the assessment year 2011-12 wherein the AO ward/circle is mentioned as “WARD 2(3)(6), Surat”. For subsequent assessment years, namely, assessment years 2012-13, 2013-14, 2014-15 and 2015-16, the assessee has mentioned his Surat address. For assessment year 2015-16, the assessee has mentioned in the Income Tax Return, the designation of AO (ward/circle) as “WARD 2(3)(8), Surat”. Therefore, considering these circumstances, the ld Counsel contended that in previous assessment years and in subsequent assessment years, the assessment of the assessee have been completed by the Income Tax Officer- Surat, hence the notice under section 143(2) of the Act, for assessment year 2013-14, issued by the Income Tax Officer (ITO) Wd. Kishengarh, Rajasthan, is without jurisdiction, therefore assessment order framed by the assessing officer for assessment year 2013-14 is bad in law and the same may be quashed. For that reliance can be placed on the decision of the Hon’ble Calcutta High Court in the case of Nopany & Sons [2022] 136 taxmann.com 414 ( Cal) wherein it was held that where case of assessee was transferred from Page | 13 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain ITO, Ward-3 to ITO, Ward-4 and impugned order under section 143(3) was passed by ITO, Ward-4 without issuing notice under section 143(2) and only in pursuance with notice issued by ITO, Ward-3, who had no jurisdiction over assessee at relevant time, said assessment order order would be null and void. The detailed findings of the Hon`ble Court is reproduced below: “4. This appeal by the revenue filed under section 260A of the Income-tax Act, 1961, (the Act, in brevity) is directed against the order dated 20-7-2016 passed by the Income-tax Appellate Tribunal, "C" Bench, Kolkata (Tribunal) in ITA Nos.1621 & 1301/Kol/2011 for the assessment year 2007-08. The revenue has raised the following substantial question of law for our consideration. a. Whether on the facts and in the circumstances of the case the Learned Income-tax Appellate Tribunal, "C" Bench, Kolkata is illegally justified to hold that since notice under section 143(2) was not issued by the ITO - Ward 56(4), Kolkata, the assessment order passed by him is a nullity and without jurisdiction ? 5. We have heard Mr. Mitra, learned senior standing counsel for the appellant and Mr. Ananda Sen, learned counsel assisted by Ms. Atasi Sarkar for the respondent/assessee. 6. The short issue which falls for consideration is whether the assessing officer, who had jurisdiction over the assessee at the relevant time had issued notice under section 143(2) of the Act before taking up the scrutiny assessment under section 143(3). Before we go into the facts, we take note of the legal position as laid down by the Hon'ble Supreme Court in Asstt. CIT v. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362, wherein the Hon'ble Supreme Court held that omission on the part of the assessing officer to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. Further, we also take note of the decision in the case of CIT v. Gitsons Engineering Co. [2015] 53 taxmann.com 108/231 Taxman 506/370 ITR 87 (Mad.), wherein it was held that the word 'shall' employed in section 143(2) of the Act, contemplates that the assessing officer should issue notice to the assessee so as to ensure that the assessee has not understated income or has not computed excessive loss or has not under paid the tax in any manner. It was further held that when the assessing officer considers it necessary and expedient to ensure that tax is paid in accordance with law, he should call upon the assessee to produce evidence before him to ensure that the tax is paid in accordance with law. The section makes it clear that service of notice under section 143(2) of the Act within the time limit prescribed is mandatory and it is not a mere procedural requirement. At this juncture, it would be relevant to take note of the definition of assessing officer as defined in section 2(7A) of the Act. The said provision defines 'assessing officer' to mean the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer, who is Page | 14 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of the 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 section 120 to exercise or perform all or any of the powers and functions conferred on, or assigned to, an assessing officer under this Act. In the instant case, the order of assessment was challenged on several grounds and, particularly, on the ground that no notice under section 143(2) of the Act was issued within the time prescribed by the assessing officer, who had jurisdiction over the assessment file of the assessee at the relevant time. The Commissioner of Income-tax (Appeals)-XXXVII, Kolkata, (CIT(A)) did not agree with the contentions raised by the assessee that there is failure to comply with the mandatory statutory requirement. The CIT(A) opined that the assessing officer, who originally dealt with the e-return filed by the assessee had issued notice under section 143(2) of the Act. With regard to the merits of the matter, the CIT(A) held it in favour of the assessee. Therefore, the revenue was on appeal before the Tribunal and cross-objection was filed by the assessee questioning that portion of the order of the CIT(A) which held that there is no procedural irregularity committed by the assessing officer. The Tribunal considered the correctness of the finding of the CIT(A) and, on facts, found that both the assessing officers, namely, the assessing officer, who had jurisdiction over the assessee till 6-4-2009 and the assessing officer, who had jurisdiction post the said date had not issued notice under section 143(2) of the Act within the prescribed period of six months from the end of the financial year in which the return was filed. This factual position could not be controverted by the revenue before us. As pointed out by the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra), non-issuance of notice under section 143(2) is not a procedural irregularity and, therefore, it is not curable. Thus, on facts, it having been established that no notice was issued under section 143(2) of the Act, the order passed by the Tribunal was perfectly legal and valid. The revenue also sought to rely upon section 292BB of the Act to justify their stand that notice is deemed to be valid and sought to bring the assessee's case under the circumstances mentioned in section 292BB. This question was considered by the Tribunal and it was pointed out that section 292BB provides that where an assessee has appeared in any proceedings or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any of the provision of the Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under the Act that the notice was not served upon him or not served upon him in time or served upon him in an improper manner. This amendment to the Act was introduced with effect from 1-4-2008 and the assessment year under consideration is AY 2007-08. In any event, the Tribunal examined as to whether at all the revenue can rely upon section 292BB of the Act and noted that the assessee has filed an objection vide letter dated 16-11-2009 objecting to the issuance of notice under section 142(1) of the Act without valid service of notice under section 143(2) of the Act. Taking note of the said letter the Tribunal, in our view, rightly held that the proviso to section 292BB would not stand attracted and the said section cannot be made applicable to the assessee's case. The Tribunal, thereafter, analysed as to the correctness of the submission of the revenue seeking to sustain their stand by referring to a Page | 15 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain notice issued by the assessing officer, who at the relevant point had no jurisdiction over the assessee and, on facts, found that there is no valid compliance of section 143(2) of the Act as the notice issued under section 143(2) of the Act by the assessing officer/Income Tax Officer, Ward-3(1) had no jurisdiction over the assessee at the relevant time. The Tribunal to support its conclusion placed reliance in the case of CIT v. Mukesh Kumar Agrawal [2012] 25 taxmann.com 112/345 ITR 29 (Allahabad), wherein it was held that the assessing officer did not have jurisdiction to proceed further and make assessment since notice under section 143(2) of the Act was admittedly not issued. As in the case on hand, the revenue sought to take coverage under section 292BB of the Act which was rejected on the ground that the very foundation of the jurisdiction of the assessing officer was on the issuance of notice under section 143(2) of the Act and the same having been complied with, the revenue cannot take shelter under the provisions of section 292BB of the Act. 7. Thus, we are of the clear view that the Tribunal was right in rejecting the revenue's appeal. In the result, this appeal is dismissed and the substantial question of law is answered against the revenue.” 23. Hon`ble Supreme Court in the case of Laxman Das Khandelwal [2019] 108 taxmann.com 183(SC) held that for section 292BB to apply, section 143(2) notice must have emanated from department and it is only infirmities in manner of service of notice that section seeks to cure and it is not intended to cure complete absence of notice itself. The detailed findings of the Hon`ble Supreme Court are reproduced below: “5. Aggrieved, Revenue filed an appeal. The Assessee filed cross-objection on the ground of jurisdiction of Assessment Officer regarding non-issue of notice under Section 143 (2) of the Act of 1961. The Tribunal vide impugned order upheld the cross-objection and quashed the entire reassessment proceedings on the finding that the same stood vitiated as the Assessment Officer lacked jurisdiction in absence of notice under Section 143 (2) of the Act of 1961. The Tribunal observed: "17. In conclusion, we find that there was no notice issued u/s 143 (2) prior to the completion of assessment under section 143 (3) of the Act by the AO; that the year under consideration was beyond the scope of the provisions of section 153 A of the Act, it being the search year and not covered in the six year to the year of search as as per the assessment scheme/procedure defined u/s section 153A; that the AO has passed regular assessment u/s 143 (3) of the Act; although the ld CIT has mentioned the section as 143 r.w.s. 153A and that the department had not controverted these facts at the stage of hearing. It is noted that issue of notice u/s 143 (2) for completion of regular assessment in the case of the assessee was a statutory requirement as per the provisions of the Act and non-issuance thereof is not a curable defect. Even in case of block assessment u/s 158 BC, it has been so held by the Apex court in the case of 'ACIT Vs. Hotel Blue Moon', (2010) 321 ITR 362 (SC) (Supra). Page | 16 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 18. Considering the facts, as discussed above, we note that the assessment order is passed without issue of notice u/s 143 (3) of the Act and this defect can not be cured by taking recourse to the provisions of section 292 BB of the Act. 19. In view of the above, we hold that the AO had no valid jurisdiction to pass the assessment order and the very foundation of the assessment proceedings is bad in law. Hence, these proceedings culminating in the assessment order, as well as the impugned order stand quashed. Nothing else remains to be adjudicated. In consequence, the revenue's appeal in ITA No.57/AGR/2014 is dismissed." 6. Sub-section (2) of Section 143 of the Act of 1961 envisages: "[(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 or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.]" 7. In Asstt. CIT v. Hotel Blue Moon [2010] 188 Taxman 113/321 ITR 362, on the question as to whether issue of notice under Section 143 (2) of the Act within the prescribed time for the purpose of block assessment under chapter- XIV B of the Act is mandatory for assessing undisclosed income detected during search conduct under Section 132 of the Act, their lordships were pleased to hold : "15 Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with......." 8. The impugned order when is adjudged in view of the law laid down by the Supreme Court in Hotel Blue Moon (Supra), no substantial question of law arises for consideration. 9. Consequently, Appeal fails and is dismissed.” 24. On the identical facts, the Hon`ble High Court of Bombay in the case of Pavan Morarka 136 taxmann.com 2 (Bom) held that where AO at Delhi who issued initial reopening notice had no jurisdiction over petitioner as he was assessed to tax at Mumbai, reopening notice issued by AO at Mumbai after case of assessee was transferred to his Page | 17 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain jurisdiction could not be said to be in continuation of proceedings initiated by AO at New Delhi. The findings of the Hon`ble Court is reproduced below: “16. Respondent's stand that the Assessing Officer at New Delhi had issued a notice under section 148 of the said Act on petitioner on 22nd March 2013 before the limitation period expired and, therefore, the impugned notice issued by the Assessing Officer at Mumbai in continuation of the said proceedings must also be treated as valid and within time is misconceived. This is because we notice that the notice issued by the Assessing Officer at New Delhi itself was invalid and of no effect since it was issued by an officer who did not have jurisdiction over petitioner. We gather support from the case of CIT v. M.I. Builders (P.) Ltd. (supra), the assessee had raised the objection with regard to continuation of the proceedings by Income-tax Officer - 1(I), Lucknow on the ground that the said proceedings are illegal as the notice under section 148 of the said Act issued itself was devoid of proper jurisdiction and ab initio void. The Income-tax Officer - 1(I), Lucknow, however, without considering the objection continued to proceed in the matter and passed the assessment order and also directed to initiate penalty proceedings. The CIT(A) dismissed the appeal of the assessee but the ITAT in the appeal filed by the assessee allowed the appeal of the assessee on the ground that notice issued under section 148(1) of the said Act was without jurisdiction and, therefore, the subsequent proceedings are invalid. Feeling aggrieved, the Revenue preferred an appeal before the High Court. While dismissing the appeal of the Revenue, the Court held that when the notice under section 148 (1) of the said Act was issued, ACIT, Range-IV, Lucknow had no jurisdiction over the assessee as the jurisdiction over the assessee was transferred to the Additional CIT, Range-I, Lucknow. It was held that there cannot be situation where two Assessing Officer would have simultaneous jurisdiction over the assessee. Accordingly, it was held that the Tribunal had rightly held that the issuance of notice under section 148 (1) of the said Act by the non-jurisdictional Assessing Officer was without jurisdiction. 17. We shall also note that on the date when the records were transferred by the Assessing Officer at New Delhi to the Assessing Officer at Mumbai, the time limit of six years as per Section 149 of the said Act had already elapsed. Respondent no. 1, thereafter, recorded fresh reasons and issued a fresh notice dated 14th January 2014 under section 148, that is impugned, well beyond six years. The notice issued by the Assessing Officer at Mumbai was independent of the notice issued by the Assessing Officer at New Delhi and, therefore, the validity thereof has to be decided independently. The very fact that the Assessing Officer at Mumbai recorded his own reasons and issued a fresh notice and did not seek to derive his jurisdiction basis the notice dated 22nd March 2013 itself indicates that the Revenue's stand has no basis. 18. In our view, the stand of Revenue that no fresh sanction under Section 151 of the said Act was required is also misconceived. Admittedly, no sanction has been accorded before issuance of notice by the Assessing Officer at Mumbai. The Revenue cannot seek to sustain the validity of the notice by relying on the sanction accorded to the issuance of the notice dated 22nd March 2013 by the Assessing Officer at New Delhi. The notice issued by the Assessing Officer at Page | 18 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain New Delhi was after obtaining approval of Additional Commissioner of Income Tax, Range-14, New Delhi. Even that notice is invalid because the notice dated 22nd March 2013 was issued after a period of four years from the end of the relevant assessment year and, therefore, sanction ought to have been accorded by the Commissioner of Income Tax. The sanction accorded by the Additional Commissioner of Income Tax, therefore, would render the notice issued by the Assessing Officer at New Delhi itself bad in law and without jurisdiction. A Division Bench of this Court in Miranda Tools (P.) Ltd. (supra) in paragraph 9 has held as under : 9. The next question arises is whether the sanction granted by the Chief Commissioner of Income-tax would fulfill the requirement of section 151. It is long been settled that when the statute mandates the satisfaction of a particular authority for the exercise of power then it has to be done in that manner only. Adopting this principle, the Division Benches of this Court in the case of Ghanshyam K. Khabrani v. Asst. CIT1 and CIT v. Aquatic Remedies P. Ltd. have held that sanction for issuance of reopening notice has to be obtained from the Authority mentioned in section 151 and not from any other officer including a superior officer. In the present case the Chief Commissioner of Income-tax is not the officer specified in section 151 of the Act. There is thus a breach of requirement of section 151(2) of the Act regarding sanction for issuance of notice under section 148 of the Act. Consequently, the impugned notice and the impugned order cannot be sustained in law. The Petitioner, therefore, is entitled to succeed. 19. The other ground taken by respondent to oppose the petition is that since the notice has been issued under section 148 read with Section 150 of the said Act, the approval under section 151 of the said Act is not required to be obtained is also misconceived. As stated earlier, first of all Section 150 of the said Act has no application in the present case. In any event, Section 150, as held in Murlidhar Bhagwan Das (supra), only lifts the bar of limitation for issuance of notice under section 149 of the said Act and the other conditions that are required to be complied with before jurisdiction to reassess can be validly assumed must be fulfilled. The Apex Court while construing the second proviso to section 34(3) of the Income-tax Act, 1921 held as under : The first part of the proviso released the operation of the proviso from the restriction imposed by section 34 only in respect of the time- limit within which any action may be taken or any order of assessment or re- assessment may by made. It means that the proviso continues to be subject to the other restrictions imposed under the section and it cannot override the said provisions in that regard. Under the proviso, the period of limitation will not apply to a re-assessment made under section 27 or to an assessment or re-assessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33B, section 66 or section 66A of the Act. It was not contended, nor was it possible to contend, that by reason of the reference to the said provisions the powers and jurisdiction conferred on the respective. authorities, tribunals or courts referred to therein were enlarged or modified by a reference in the proviso or that the proviso could be read or construed as amending those sections conferring on those bodies wider or different powers or Page | 19 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain jurisdiction. Learned counsel for the department expressly disclaimed any such submission. Therefore, the scope of the proviso cannot ordinarily exceed the scope of the jurisdiction conferred on an authority under the said provisions. (Emphasis Supplied) 20. Therefore, for a moment, even if accept Revenue's contention that the present proceedings are continuation of the proceedings initiated by the Assessing Officer at New Delhi vide notice dated 22nd March 2013, the proceedings would be invalid since the notice issued by the Assessing Officer at New Delhi itself was invalid inasmuch as sanction of the appropriate authority as per Section 151 was not obtained before issuing the notice. 21. On the submissions of Mr. Pardiwalla that respondent had issued impugned notice under section 148 relying on the Delhi High Court order and judgment despite agitating the conclusion of the Delhi High Court before the Apex Court, Mr. Suresh Kumar submitted that an SLP has been filed against the decision of the Delhi High Court to cover the contingency of an adverse outcome in the SLP. It is Revenue's contention before the Apex Court that the deemed dividend under section 2(22)(e) is assessable in the hands of P&A. This is certainly not permissible because the jurisdictional requirement is that respondents must entertain a belief that income chargeable to tax has escaped assessment in the hands of petitioner. It is not possible for respondents to entertain such belief if they are agitating the matter against P&A. On this ground also, the impugned notice should be held as invalid. The Division Bench of this Court in DHFL Venture Capital Fund v. ITO [2013] 34 taxmann.com 300/217 Taxman 116/358 ITR 471 held that where the Assessing Officer sought to make protective assessment by reopening an assessment on the ground that a contingency may arise in future resulting in escapement of income that would be wholly impermissible and would amount to rewriting of the statutory provision. Paragraph 18 of the said judgment reads as under : 18. A protective assessment as the learned author indicates is regarded as being protective because it is an assessment which is made ex abundanti cautela where the department has a "doubt as to the person who is or will be deemed to be in receipt of the income". A departmental practice, which has gained judicial recognition, has emerged where it appears to the Assessing Officer that income has been received during the relevant Assessment Year, but where it is not clear or unambiguous as to who has received the income. Such a protective assessment is carried out in order to ensure that income may not escape taxation altogether particularly in cases where the Revenue has to be protected against the bar of limitation. But equally while a protective assessment is permissible a protective recovery is not allowed. However, such an exercise which is permissible in the case of a regular assessment must necessarily yield to the discipline of the statute where recourse is sought to be taken to the provisions of section 148. Protective assessments have emerged as a matter of departmental practice which has found judicial recognition. Any practice has to necessarily yield to the rigour of a statutory provision. Hence, when recourse is sought to be taken to the provisions of section 148, there has necessarily to be the fulfillment of the jurisdictional requirement that the Assessing Officer must have reason to Page | 20 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain believe that income has escaped assessment. To accept the contention of the Revenue in the present case would be to allow a reopening of an assessment under section 148 on the ground that the Assessing Officer is of the opinion that a contingency may arise in future resulting an escapement of income. That would, in our view, be wholly impermissible and would amount to a rewriting of the statutory provision. Moreover, the reliance which is sought to be placed on the provisions of Explanation 2(a) to section 147 is misconceived. Explanation 2 provides a deeming definition of cases where income chargeable to tax has escaped assessment and clause (a) includes a case where no return of income has been furnished by the assessee although his income or the income of any other person in respect of which he is assessable exceeds the maximum amount which is not chargeable to tax. As the reasons which have been disclosed to the assessee would indicate, this is not a case where an assessee has not filed a return of income simplicitor. The whole basis of the reopening is on the hypothesis that if the provisions of Sections 61 to 63 are attracted as has been claimed by the assessee, and the income of Rs. 32.83 Crores which has been claimed by the assessee to be exempt is treated as exempt, in that event an alternate basis for taxing the income in the hands of the AOP of the contributories is sought to be set up. For the reasons already indicated, the entire exercise is only contingent on a future event and a consequence that may enure upon the decision of the Tribunal, that again if the Tribunal were to hold against the Revenue. A reopening of an assessment under section 148 cannot be justified on such a basis. There has to be a reason to believe that income has escaped assessment. 'Has escaped assessment' indicates an event which has taken place. Tax legislation cannot be rewritten by the Revenue or the Court by substituting the words 'may escape assessment' in future. Writing legislation is a constitutional function entrusted to the legislature. (Emphasis Supplied) 22. In the circumstances, the notice dated 10th January 2014 issued by respondent no. 1 under section 148 of the said Act to petitioner and notice dated 14th February 2014 issued by respondent no. 1 to Rachna Morarka for Assessment Year 2006-2007 are quashed and set aside. Consequently, the orders rejecting petitioner's objections are also quashed and set aside.” 25. On the identical facts, the Hon`ble High Court of Bombay in the case of Capstone Securities Analysis (P) Ltd [2023] 146 taxmann.com 423(Bom), held that where assessee shifted its registered office from Mumbai to Pune and request made to transfer jurisdiction to Pune was allowed by Commissioner, Mumbai, since transfer of PAN was consequential to order of transfer of jurisdiction, the AO, Mumbai would not continue to exercise jurisdiction in case of assessee even if PAN Page | 21 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain came to be transferred much later than transfer of jurisdiction. The findings of the Hon`ble Court is reproduced below: “2. Briefly stated the material facts are as under: The assessee fled its return of income for the assessment year 2010-11 at Mumbai. The return of the assessee was processed under section 143(1) on 17 April 2017. Subsequently, the case was selected for scrutiny under CASS and since the assessee had entered into an international transactions during the relevant period, reference under section 92CA(1) was made to Transfer Pricing Officer by assessing officer to determine Arm's Length Price (ALP) of international transactions with AEs. The TPO vide Order dated 30 January 2014, made an adjustment of Rs. 6,36,13,021/-. 3. On the basis of the Order passed by TPO, the assessing officer made the draft assessment order under section 144C(1) of the Act on 10 February 2014, against which, the assessee fled objections before the Dispute Resolution Panel on 11 March 2014. The Dispute Resolution Panel, however, upheld the finding of the TPO. 4. The assessee, in the meantime, had shifted its registered office from Mumbai to Pune and in that regard, the Registrar of Companies, Maharashtra had issued a certificate of transfer on 13 April 2011, which was brought to the notice of the concerned ITO. A request was also made to the assessing officer, Ward-3(1)(3), Mumbai for transferring the jurisdiction to Pune, which prayer was allowed by virtue of the Order dated 19 December 2014 passed by the Commissioner of Income Tax-3, Mumbai. 5. The assessing officer, however, despite the Order having been passed on 19 December 2014, proceeded to pass the final Order of assessment on 24 December 2014. The issue of jurisdiction has been decided by the ITAT by virtue of its Order dated 9 August 2017, which is impugned in the present appeal by the revenue. The Tribunal held that after the Commissioner of Income Tax-3, Mumbai had passed an Order on 19 December 2014, transferring the assessment jurisdiction from Mumbai to Pune, the assessing officer at Mumbai had no jurisdiction over the file of the assessee on the date when the Order of assessment came tobe passed on 24 December 2014 by him. The Tribunal rejected the argument of the revenue that the assessing officer would continue to exercise the jurisdiction in the case of the assessee inasmuch as PAN of the assessee came to be transferred only 29 December 2014. It was held that the transfer of PAN is consequential to the Order of transfer of jurisdiction and that it is a PAN, which follows the jurisdiction and not vice versa. 6. In our view, there is no illegality in the Order dated 9 August 2017, which has been passed by the Tribunal. No substantial question of law arises. The Appeal is accordingly dismissed.” 26. On the identical facts, our view is fortified by the judgment of the Coordinate Bench of ITAT Kolkata in the case of Eversafe Securities (P) Ltd [2021] 128 taxmann.com 347 (Kol-Trib.) wherein it was held that Page | 22 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain where case of assessee was transferred by ITO, Ward- 4 to ITO, Ward-5, impugned order under section 143(3) passed by ITO, Ward-5 without issuing notice under section 143(2) and only in pursuance with notice issued by ITO, Ward- 4, who did not enjoy jurisdiction over assessee, was null and void. The detailed finding of the Coordinate Bench is reproduced below: “8. We first take up the issue of jurisdiction. ITO, Ward-4(3), Kolkata issued notice u/s 143(2) of the Act on 12-8-2013 to the assessee. The assessee on 4-9- 2013 replied as follows: "Kindly refer to the above. A notice U/s 143(2) of the Income-tax Act, 1961 dated 12/08/2013 was served on for Asst year 2012-13. In this regard and as per our information you do not hold the charge and jurisdiction over our case. As per our understanding I.T.O. Ward 5(3) holds jurisdiction over this case. In view of the above, we submit that notice issued and proceeding undertaken by you in our case is not valid as per law and you are requested to kindly do the needful in this regards. Kindly note that compliance to your notice is without prejudice to our right to challenge the validity of the proceeding including the issue of jurisdiction or limitation. Accordingly, the provisions of section 292BB or any other provisions will not validate the proceeding." (Emphasis supplied) 8.1 Admittedly, no notice u/s 143(2) of the Act was issued to the assessee by ITO, Ward-5(3), Kolkata. This fact is admitted by the ITO, Ward-5(1), Kolkata in his letter addressed to the Pr. CIT-2, Kolkata in F. No. I.T.O./W-5(1)/KOL/2020- 21/165 dated 17-3-2021. We extract part of this for ready reference: "However from the Notice U/s. 143(2) dated 12/08/2013 attached with your above letter, it is observed that the said notice was issued by the then ITO, Ward 4(3), Kotkata as PAN was lying with him. Address of assessee Eversafe Securities, (P.)Ltd. was 41, N.S. Road, Kolkata 700001. Jurisdiction of 41 ,N.S. Road, KolKata 700001 were lying with ITO, Ward 5(3), Kolkata, and for this file was transferred to ITO, Ward 5(3), Kolkata. For notice issued by ITO, Ward 5(3), Kolhata, since file is not traceable, attempt was made to locate from the system. No such Notice was found in system." 8.2 The issue is whether the assessment order passed u/s 143(3) of the Act dated 14-3-2015 by the ITO, Ward-5(3), Kolkata is bad in law when a notice u/s 143(2) of the Act was not issued by the jurisdictional assessing officer. Page | 23 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 8.3 This Bench of the Tribunal in the case of Hillman Hosiery Mills (P.) 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 the Act, to the assessee. This issue is no more res-integra. This Bench of the Tribunal in the case of Soma Roy v. ACIT in ITA No. 462/Kol/2019; Assessment Year 2015-16, order dt. 8th 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 Page | 24 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 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 v. ACIT in ITA No. 2073/Kol/2016 order dt. 27-9-2017, 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 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 6-9-2013 and the same was served on the assessee on 19-9-2013 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 24-9- 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 6-9- 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 24-9-2014. (iii) On 24-9-2014 statutory notices for scrutiny were issued by ACIT, Circle-27, Haldia. 6. We note that the CBDT Instruction is dated 31-1-2011 and the assessee has filed the return of income on 29-3-2013 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 6-9-2013 by ITO, Ward-1, Haldia when he Page | 25 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 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 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 v. ITO [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 v. 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 v. 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 Page | 26 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 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 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." 11. Respectfully following the same, we have to hold that the assessment order passed by the DCIT, Circle-11(1), Kolkata, without issuance of notice u/s 143(2) of the Act, is bad in law. If it is held that the ITO Ward-3(3), Kolkata, has jurisdiction over the assessee, then the assessment order passed by the DCIT, Circle-11(1), Kolkata, would become bad in law as it would be an order passed by an officer who has no jurisdiction. Looking at it either way, we find that the assessment is bad in law." (Emphasis supplied) Page | 27 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 8.4 This Bench of the Tribunal in the case of K.A.Wires Ltd. (supra) held as follows: "6. We 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, we hold as follows:— 7. The address of the assessee as given in the return of income and as given in the PAN Card, has not undergone any change for the previous assessment years, this year and for the subsequent assessment years. A perusal of the copy of return of income field by the assessee for the Assessment Year 2010-11, 2011-12, 2012-13 & 2013-14, demonstrate that it was filed with the same address, before the ITO, Ward-8(3), Kolkata. There is no dispute that it was only the ITO, Ward-8(3), Kolkata, who had and continued to have the jurisdiction over the assessee company. The PAN card also has the same address for all these years. There is no change in address of the assessee company. 7.1 It is also not in dispute that the notice u/s 143(2] of the Act dt. 06/08/2013 was issued by the ITO Ward-33(1), Kolkata. The assessee does not fall under the jurisdiction of this officer. A perusal of the order sheet entries demonstrate that, after issuance of notice u/s 143(2] of the Act on 06/08/2013, the ITO, Ward- 33(1], Kolkata, transferred the file to ITO, Ward-8(3], Kolkata on 03/02/2014. Thereafter, ITO, Ward-8(3], Kolkata, issued notice u/s 143(1] on 10/10/2014 and completed the assessment u/s 143(3] of the Act on 30/03/2015. The ITO Ward-8(3], Kolkata, who had the jurisdiction over the assessee, did not issue notice u/s 143(2] of the Act to the assessee. The issue before us is whether the non-issual of notice u/s 143(2) of the Act, by the Assessing Officer having jurisdiction over the assessee makes the assessment bad in law. 8. We 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, we hold as follows:— 8.1 Jurisdiction of the Income-tax Authorities is conferred by the Board (Central Board of Direct Tax) u/s. 120(1) & (2) of the LT. Act, 1961. The Section reads as follows: 120. (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 Page | 28 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 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 anyone or more of the following criteria, namely:- (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and (d) cases or classes of cases. (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein, - (a) authorise any 1[Principal Director General or] Director General or 14[Principal Director or] Director to perform such functions of any other income-tax authority as may be assigned to him by the Board; (b) empower the 1 [Principal Director General or] Director General or 14[Principal Chief Commissioner or] Chief Commissioner or 14[Principal Commissioner or] Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by an Additional Commissioner or an Additional Director or a Joint Commissioner or a Joint Director, and, where any order is made under this clause, references in any Page | 29 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply. (5) The directions and orders referred to in sub-sections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to exercise and perform, concurrently, the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. (6) Notwithstanding anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification. 8.2 From a plain reading of the above, it is clear that u/s 120(1) of the Act, the Income-tax Authorities will have to exercise Acts only in accordance with the jurisdiction conferred by the Board. U/s 120(3) of the Act, such powers can be conferred by the Board having regard to the territorial area, class of person, income or class of the cases. The CBDT under sec. 120(5) of the Act, can also confer jurisdiction on two or more Assessing Officers (concurrent jurisdiction). The CBDT can also by notification confer powers on the authorities for the purpose of assessment as may be notified in the notification. This shows that concurrent jurisdiction can be exercised only when CBDT confers such jurisdiction u/s 120(4) and 120(5) of the Act. 8.3 In accordance with the powers conferred u/s. 120 (1) and 120(2) of the Act, the CBDT issued notification on no. 191/2002(F.No.187/9/2002-ITA-1 Page | 30 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain dated 30-7-2002) whereby the CBDT conferred the jurisdiction by specifying the Designation of the specific Income-tax Authorities, its Head Quarters, Territorial Area, Persons or classes of persons and cases or class of cases. 8.4 As per the above referred notification, the assessee's being a company, the case fell under the jurisdiction of Commissioner of Income Tax, Kolkata- III, Kolkata vide serial no. 205 of the notification. The jurisdiction of the assessee fell with the Assessing Officer being ITO ward 8(3), Kolkata, who was under the charge of Commissioner of Income-tax -Kolkata III. 8.5 The Authorities under the Income Tax, after the jurisdiction is conferred in them by virtue of notification u/s 120(1) and 120(2) of the Act, have to perform their functions as per sec. 124 of the Act. Section 124 of the Act, reads as under: 124. (1) Where by virtue of any direction or order issued under sub-section (1) or sub-section (2) of section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction- (a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and (b) in respect of any other person residing within the area. (2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be determined by the Principal Director General or Director General or the Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or Commissioner; or where the question is one relating to areas within the jurisdiction of different Principal Director General or Directors General or Principal Chief Commissioners or] Chief Commissioners or Principal Commissioners or Commissioners, by the Principal Director General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or] Commissioners concerned or, if they are not in agreement, by the Board or by such Principal Director General or] Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer— Page | 31 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain (a) where he has made a return under sub-section (1) of section 115WD or under sub- section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub- section (1) of section 142 or sub-section (2) of section 115WE or sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144 to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (c) where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section 153C or after the completion of the assessment, whichever is earlier. (4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders issued under sub-section (1) or sub-section (2) of section 120. Page | 32 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 8.6 The clear and unambiguous words used in section 124(1) of the Act, are that the Assessing Officer should be vested with the Jurisdiction by virtue of an order, notification or directions issued u/s. 120(1) or u/s. 120(2) of the Act. Therefore, only the Officer who has been vested with the jurisdiction conferred u/s 120(1) and 120(2) of the Act can act as Assessing Officer and issue notice under sec. 143(2) of the Act, since "he shall have jurisdiction" are the words as has been used in sec. 124(1) of the Act. 8.7 Even though the Assessing Officer have been vested with the Jurisdiction u/s. 124(1) of the Act, by the Board, yet the assessee may dispute such jurisdiction vested u/s 124(1) of the Act, in the Assessing Officer. Such dispute can be raised u/s. 124(3) of the Act, within one month of the issue of notice u/s. 143(2) of the Act. This sub section, therefore, clearly stipulates that the assessee can dispute the jurisdiction of the Assessing Officer to issue notice even though such jurisdiction was vested in him by the direction or order issued u/s. 120(1) or 120(2) of the Act, for some reasons. 8.8 In this case, the jurisdiction of the assessee was never vested with the Assessing Officer, Ward 33(1), (non corporate assessee ward) who issued notice u/s. 143(2) of the Act. In fact, the assessee also filed return before ITO, Ward-8(3), KoIkata who was having jurisdiction over the assessee as per the Boards Notification, which fact is evident from the copy of acknowledgements of return of income for the last few years. The notice under sec. 143(2), however, was issued in this case by ITO, Ward 33(1), Kol who has not been vested with the jurisdiction over the assessee company by CBDT. 8.9 Under the scheme of "e" filing of return, the assessee has to fill PAN on the return. It has to also fill its address and some of the details are picked- up by the assessee. If the Department's system fails to correctly transfer the return to the jurisdictional Assessing Officer and transfer the same to a Assessing Officer though who has no jurisdiction as per the CBDT's notification, such mistake cannot confer the jurisdiction on such an Assessing Officer. Jurisdiction can be conferred only by notification u/s 120(1) and 120(2) of the Act only. 8.10 The Ld DR submitted that there was transfer order of the assessee's case for the assessment year in question, from ITO Ward 33(1) to ITO Ward 8(3). There can be a valid transfer order from ITO Ward 33(1) only if he was vested with the jurisdiction over the assessee. As he was never vested with the jurisdiction either by the notification of the CBDT or by any order of the Commissioner of Income-tax earlier to the issue of notice u/s 143(2) of the Act, he could not have validly transferred the case to ITO, Ward-8(3), Kolkata. The file/case was restored to its jurisdictional area. When the said ITO Ward 33(1) was not having valid jurisdiction at the time of issue of notice u/s 143(2) of the Act, then the notice is bad in law. The transfer of the folder from ITO Ward 33(1) to ITO Ward 8(3) in fact establishes that the revenue realised that the ITO Ward 33(1) had no jurisdiction. 8.11 The Ld DR also raised the issue that u/s 120(4) and 124(5) of the Act, there can be concurrent jurisdiction. There is no dispute over that. However there is no direction or order or notification u/s 120(1) or 120(2) of the Act, conferring concurrent jurisdiction to the ITO Ward 33(1) along with ITO Page | 33 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain Ward 8(3) u/s 120(1) or u/s 120(2) of the Act, which is the condition mentioned in section 120(4) and 120(5) of the Act. 8.12 The Ld DR for the purpose of his submission also read out para 19 of the decision of ITAT in the case of Rungata Irrigation in ITA No 1224/K/2019 dated 6-9-2019. The said decisions is in favour of the assessee. The Ld CIT(DR) has relied on para 19 which is in fact in favour the assessee. The Tribunal has fully analyzed the entire provisions of section 120, 124 and 127 of the Act, in para 13, 14,15,17, 18, 21 of the order with regard to the issue of vesting of jurisdiction and transfer etc and held that the issue of notice by non-jurisdictional AO was bad in law and without jurisdiction. 8.13 The Ld DR argued that the assessee did not dispute the jurisdiction u/s 124(3) of the Act and hence by not disputing the same, the right to challenge the jurisdiction is lost forever. This would have been so, had the ITO, Ward- 33(1), Kolkata, had original jurisdiction over the assessee. This is not the case. When an authority does not have jurisdiction, then the act done by such authority is bad in law and is void ab-initio 8.14 This issue came up for consideration in the following cases: (i) Rungta Irrigation Ltd. referred to above with relevant paragraphs and paragraph 36. (ii) Smriti Kedia Calcutta High Court 339ITR page 37 (iii) Indorama Software Solutions Ltd. Mumbai Bench ITA No. 5211 and 5290(Mum) of 2011 dated 7-9- 2012 8.15 In the case of Mahalchand Motilal Kothari & Co (ITA No. 1851/1852/Kolj2002, ITAT, D- Bench, Kol dated 28-7-2006 wherein the Tribunal considered the notification dated 30-7-2002 and held that after issue of the notification the Assessing Officer who was earlier vested the jurisdiction lost the jurisdiction and even though the order of the CIT(A) was received by him at the time when he was having jurisdiction, yet the Assessing Officer who has been divested of the jurisdiction on 30-7-2002 cannot file the appeal after the said date. In that case even the authorization was also granted for filing the appeal by the CIT-XIII, Kolkata who lost the jurisdiction after the notification. In that case after the dismissal of the appeal of the Department by the Tribunal on the aforesaid ground of jurisdiction, the Revenue filed an appeal before the Hon'ble High Court but the same was dismissed. The Revenue thereafter came up with condonation petition and a filed fresh appeal before the ITAT but the same was also dismissed in ITA No. 1768 and 1769/Kol/2006, B-Bench on 15-9-2014. The Revenue filed an appeal before the Hon'ble High Court which was dismissed with the following observations: "The appeal carried by theACIT-39 to the Appellate Tribunal was dismissed as not competent. The order of the Appellate Tribunal was challenged by the Revenue in this Court. This Court did not interfere with the order of the Tribunal and the matter rested there without this Court's order being Page | 34 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain challenged by the Revenue before the Supreme Court. In the present case, the matter pertains to the same assessment year when the ITO-44 has preferred an appeal where the initial assessment was not done by the ITO- 44 but such assessment 'was conducted by the ACIT-39 at a point of time when AC1T-39 lost jurisdiction over the assessee pursuant to the said CBOT Notification 2002 Since there was a fundamental error, the Appellate Tribunal dismissed the appeal as incompetent since the order of the Assessing Officer who had no jurisdiction to undertake the assessment qua the assessee could never have been found to be legal or resurrected. " 8.16 While deciding the issue in the case of Mahalchand Motilal Kothari & Co. (supra) the ITAT relied on the Judgement of Calcutta High Court in the case of "West Bengal State Electricity Board" 278ITR 218. In that case the Hon'ble Calcutta High Court held that jurisdiction cannot be conferred by default or by agreement and the decision without jurisdiction is a nullity. The Hon'ble High Court also relied on a number of Judgements while arriving at such a conclusion. 8.17 The Hon'ble Allahabad High Court in the case of V.P. Electronics Corporation Ltd in ITA No. 79 of 2015 dated 1-3-2017 has also taken similar view wherein the provisions of sec. 124(3) were also referred to. It was held that when the notice was not issued by the competent authority, i.e., an Assessing Officer having jurisdiction, then the assessment is a nullity. 8.18 In the case of Deepchand Kothari reported in 171 ITR 381(Raj) it was held that the Assessing Officer who was having no jurisdiction to initiate the proceedings then such proceedings are ab-intio- void. Further the Hon'ble High Court relying on the Judgement of the Hon'ble Supreme Court in the case of Kiran Singh v. Chaman Paswan, it was held that the Jurisdictional issue can be taken up at any stage of the proceedings, even at the time of execution of decree. 8.19 The ITAT, Kolkata in the case of Ganesh Reality and Mall in ITA No. 581/Kol/2017 held that if no jurisdiction was conferred on a particular authority the issue of notice or completion of assessment by such authority is illegal. 8.20 In the case of P.V. Doshi v. CIT the Gujarat High Court held that the jurisdictional issue can be taken up at any stage of the proceedings. 8.21 In the case of Rajmandir Estates (386 ITR 162) the Hon'ble Calcutta High Court held that if the Commissioner Income-tax issuing notice u/s. 263 has lost the Jurisdiction then the notice and order issued by him is a nullity. 8.22 The Lucknow Bench of the ITAT in ITA No. 89 and 90/LKW/2015 dated 16-4-2015 in the case of Md Rizwan held that notice u/s 143(2) issued by non-jurisdictional Assessing Officer is a nullity. 8.23 Same view have been taken a number of other cases some of which are under:— 1. A.L. Ahuja v. DCIT SOT (2003) page 475 at page If at the time of issue of notice u/s. 158BC the Assessing Page | 35 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 480 Officer had no jurisdiction the assessment is illegal. 2. Income-tax Officer v. Sarkar & Co. 1954 AIR 613 Calcutta. If at the time of filing, of the appeal the ITO had no seisin over he assessee's case and case is transferred by the Commissioner of Income-tax from ITO Ward-III(2) to some other Officer, on the date of filing of the Appeal, the ITO Ward III(2) cannot file the Appeal and the appeal of the department rightly dismissed by the ITAT 3. Ram Krishna Ramnath v. Commissioner of Income-tax AIR 1932 Page 65 Nagpur When by notification dated 28th March, 1923 the powers conferred on the ITO should be exercised by the ACIT the Notice issued by the ITO was illegal 4. CIT West Bengal and another v. Anil Kumar Roy Choudhury and Another reported in 66 ITR page 367 The decision of the Calcutta High Court in Sarkar & Co. 1954 AIR 613 Calcutta was approved and held that if the case is transferred by the commissioner or The board then the income tax officer from whom the file is transferred shall have no concern with the appeal. 5. Commercial Enterprises v. State of Oriss Annulment of assessment is permissible where the taxing authority had no jurisdiction to assessee. 6. Sain Baba Mohansing 90 ITR page 197 Proceedings taken by an authority who lacked jurisdiction is ab initio void. 7. Rajeevkumar Donerria v. Asst. Commissioner of Income Tax 94 ITD page 344 Only the assessing officer who at the relevant time of filing of the appeal has the jurisdiction can file the appeal. An appeal filed by an officer who has no jurisdiction to file the appeal is non est. 8.24 The Hon'ble Gujarat High Court in the case of Jolly Fantasy World Ltd., Tax appeal no. 1254 of 2014, judgement dated 9-3-2015 held that there cannot be waiver of Jurisdiction, even if the assessee has participated in the proceedings. Page | 36 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain 8.25 Consent cannot confer jurisdiction and if the notice issued is without jurisdiction it is invalid as was held in Resham Petrotech Ltd. ITA O. 2777/Ahd/2011 dated 10-2-2012. 8.26 The Hon'ble Bombay High Court in ITA No. 127 OF 2006 in the case of The Commissioner of Income Tax-I, Lalit Kumar Bardia, judgment dt. 11- 7-2017, held that the transfer of jurisdiction subsequently cannot validate the action already taken. 8.27 The Ld. DR cited the judgement of the Hon'ble Supreme Court in the case of I-Ven Interactive Limited (Civil Appeal No. 8132 of 2019 dated 18- 10-2019). This judgement is not on the issue of jurisdiction of the Assessing Officer. In that case, there is no dispute that the assessing officer issuing notice had jurisdiction over the assessee. In that case the selection of the return for scrutiny was generated under automated system of the Income-tax Department which picks up the address of the assessee from the PAN database. The notice u/s 143(2) was sent at the assessee's address available as per the PAN database. Intimation for further hearing and three more notices were sent at the same address as available in the PAN. Finally, the assessee appeared before the tax authority but challenged the notices saying that these notices were not served upon him and that he never received notice u/s 143(2) of the Act and that further subsequent notices served and received by the assessee were beyond the period of limitation prescribed under the law. The assessee submitted that he changed his address and the new address was mentioned in the return of income filed for subsequent years. The assessee also submitted that he filed Form No. 18 with Registrar of Companies, regarding change of address. No separate intimation was given to the Assessing Officer by the assessee regarding change of address. The Court held that mere mentioning of the new address on subsequent return without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. The court found that the assessee claimed to have filed a letter for change of address but such letter was never produced before any of the authorities. It was held that on the facts of the case, the notice issued on the address available on the PAN data base was proper and valid service of notice u/s 143(2) of the Act. The court held that the change of address in the database of PAN is must, in case of change of the name of the company and/or any change in the registered office of the corporate office of the assessee and the same has to be intimated to the Registrar of Companies in the prescribed format i.e., Form 18 and after completing the said requirement, the assessee is required to approach the Department with the copy of the said document and then the assessee is required to make an application for change of address in the departmental database of the PAN. In the present case the assessee has failed to do so. This judgment is on the issue of service of notice. It is not an issue as to whether the Assessing Officer has jurisdiction over the assessee. As already stated, it is not a case of notice being issued by a non-jurisdictional Assessing Officer. It is therefore clear that the issue in the case before the Hon'ble Supreme Court was not with regard to the jurisdiction of the officer in issuing the notice but was with regard to the service of notice on the proper address. The said judgement therefore does not help the department on this issue of Page | 37 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain jurisdiction now before us. Jurisdiction has to be conferred u/s 120 of the Act. Any act by an authority without jurisdiction is ab-initio void. 8.28 In view of the above discussion, as the Assessing Officer who had jurisdiction over the assessee i.e., ITO Ward - 8(3), Kolkata had not issued the notice to the assessee u/s 143(2) of the Act as mandatorily required under the Act, the assessment framed u/s 143(3) of the Act, is bad in law as held by the Hon'ble Supreme Court in the case of ACIT & Anr. v. Hotel Blue Moon: 321 ITR 362 (SC) . Hence we quash the same. 9. As we have held that the assessment is bad in law, in view of the non- issual of the statutory notice u/s 143(2) of the Act by the Assessing Officer, having jurisdiction over the assessee, we would not go into the merits of the case as it would be an academic exercise. 10. In the result, appeal of the assessee is allowed." 9. Respectfully following the propositions of law laid down in these case laws to the facts of the case we hold that the notice issued by the ITO, Ward-4(3), Kolkata u/s 143(2) of the Act on 12-8-2013 is without jurisdiction and hence non-est in law. It is ab-initio void. 10. The assessment order passed by the AO, ITO, Ward-5(3), Kolkata u/s 143(3) of the Act on 14-3-2015 was without issuance of mandatory notice u/s 143(2) of the Act, by the AO having jurisdiction over the assessee. Thus the assessment order passed u/s 143(3) of the Act, without issuance of valid notice u/s 143(2) of the Act is bad in law as held by the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra). Thus we allow the ground nos. 1-4 in favour of the assessee and quash the assessment order passed u/s 143(3) of the Act dated 14-3-2015. As we have quashed the assessment order on the ground of above discussion, we do not adjudicate the other grounds raised by the assessee as it would be an academic issue. 11. In the result, the appeal filed by the assessee is allowed.” 27. We note that there cannot be situation where two Assessing Officer would have simultaneous jurisdiction over the assessee. We note that it is a settled position of law that when the statute mandates that the satisfaction of a particular authority for the exercise of powers is to be done in a particular manner then it has to be done in that manner only. The omission on the part of the assessing officer to issue notice under section 143(2) of the Act, cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. We note that ld DR for the Revenue sought to take coverage under section 292BB of the Act which is rejected by us on the ground that the very foundation of the jurisdiction Page | 38 453/SRT/2019/AY.2013-14 Mahaveer Shantilal Jain of the assessing officer was on the issuance of notice under section 143(2) of the Act and the same having been complied with, the revenue cannot take shelter under the provisions of section 292BB of the Act. Considering the facts, as discussed above, we note that the assessment order is passed without issue of notice u/s 143 (2) of the Act and this defect cannot be cured by taking recourse to the provisions of section 292 BB of the Act. In view of the above, we hold that the AO had no valid jurisdiction to pass the assessment order and the very foundation of the assessment proceedings is bad in law. Hence, we quash the assessment order passed by the assessing officer under section 143(3) of the Act, dated 23.03.2016. 28. As the assessment order itself is quashed, all other issues on merits of the additions, in the impugned assessment proceedings, are rendered academic and infructuous therefore, we do not adjudicate them. 29. In the result, appeal filed by the Revenue is dismissed. Order pronounced on 25/09/2023 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 25/09/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat