Soma Roy, Bardwan V. A.C.I.T.,Circle-1, Durgapur

ITA 462/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9379 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-12-2019
• Assessment Year: 2015-2016
• Appeal Filed On: 11-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Question of law; Time period of passing order
• Section: 68; 143(3); 142(1); 250; 292BB; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER] I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY..............................APPELLANT C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY WEST BENGAL 712 105 [PAN: AHWPR 4803 P] VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-1, DURGAPUR.................................RESPONDENT APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : DECEMBER 10 TH , 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 8 TH , 2020 O R D E R PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DURGAPUR, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 25/01/2019, FOR THE ASSESSMENT YEAR 2015-16. 2. THE ASSESSEE IS AN INDIVIDUAL AND HAS FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2015-16 ON 31/10/2015, DECLARING TOTAL INCOME OF RS.18,35,410/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 26/01/2017 DETERMINING TOTAL INCOME OF RS.31,05,410/- INTERALIA MAKING AN ADDITION OF RS.12,70,000/-, ON THE GROUND THAT THE CASH DEPOSITS IN THE BANK ACCOUNT WERE NOT EXPLAINED. HENCE THESE CASH CREDITS AND ADDED U/S 68 OF THE ACT. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL WITHOUT SUCCESS. 3. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE ME, DISPUTING THE ADDITION MADE U/S 68 OF THE ACT. 4. THE ASSESSEE FILED AN ADDITIONAL GROUND OF APPEAL. THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUND, READS AS FOLLOWS:- 1. THAT YOUR APPELLANT HAD PREFERRED THE INSTANT APPEAL BEING AGGRIEVED BY THE APPELLATE ORDER PASSED BY THE LD, COMMISSIONER OF INCOME TAX (APPEALS) DURGAPUR WHO WAS PLEASED TO UPHOLD THE PURPORTED ACTION OF THE LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, DURGAPUR IN THE ASSESSMENT ORDER FRAMED U/S. 143(3) OF THE INCOME TAX ACT, 1961 ON MERITS. 2. . THAT THOUGH VERBAL ARGUMENTS ON THE VALIDITY OF THE ASSESSMENT ORDER FRAMED UJS. 143(3) OF THE ACT WERE ADVANCED BEFORE THE LD. COMMISSIONER OF INCOM (APPEALS) DURGAPUR. H OWEVER IN THE GROUNDS OF APPEAL, NO SPECIFIC GROUND ON THIS BEHALF WAS URGED UP BEFORE HIM FOR ADJUDICATION. ACCORDINGLY, YOUR APPELLANT WITH THE LEAVE OF YOUR HONOUR WISHES TO RAISE THE FOLLOWING GROUNDS AS UNDER: '1. FOR THA T IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, THE LD COMMISSIONER OF INCOME TAX (APPEALS) DURGUPUR ACTED UNLAWFULLY IN NOT APPRECIATING THAT THE CONDITIONS PRECEDENT FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE INCOME TAX ACT; 1961 WAS NOT COMPLIED WI FULFILLED FOR THE LD ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, DURGAPUR IN PASSING THE ASSESSMENT ORDER U/S. 143(3) OF THE INCOME TAX ACT; 1961 AND HIS PURPORTED FINDINGS 011 THAT BEHALF ARE ABSOLUTELY IS AB INITIO VOID ULTRA VIRES AND NULL 3. THAT DUE TO LACK OF LEGAL OPINION, THE AFORESAID GROUND WAS RAISED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DURGAPUR. IN FACT, THE AFORESAID GROUND IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER AND AS SUCH. LEAVE THE GROUND MAY PLEASE BE GRANTED IN THIS REGARD. 4. THAT YOUR APPELLANT HAS A STRONG PRIMA FACIE CASE. THE BALANCE OF CONVENIENCE STRONGLY FAVOURS YOUR APPELLANT IN PASSING AN ORDER OF ADMISSION OF THE ADDITIONAL GROUND. YOUR APPELLANT WILL SUFF 5. AFTER HEARING RIVAL CONTENTIONS, GROUND , RAISING A JURISDICTIONAL ISSUE THE FACTS. THE LD. COUNSEL FOR THE ASSE NO. 1/2011 [F. NO. 187/12/2010 ASSESSEE IS WITH THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE THE ASSESSEE IS A NON- CORPORATE ASSESSEE AND THE 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 JURISDICTION OF THE CASE. HE SUBMITTED THAT THE ASSESSMENT ORDER WAS PASS 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 ME RITS, HE REBUTTED THE FOR THE ASSESSEE RELIED ON CERTAIN CASE WHEN NECESSARY. 6. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE VESTS W ITH THE ITO AS WELL AS THE ACIT AND HENCE THE ASSESSMENT CANNOT BE 2 CIRCLE 1, DURGAPUR IN THE ASSESSMENT ORDER FRAMED U/S. 143(3) OF THE INCOME TAX ACT, 1961 ON MERITS. 2. . THAT THOUGH VERBAL ARGUMENTS ON THE VALIDITY OF THE ASSESSMENT ORDER FRAMED UJS. 143(3) OF THE ACT WERE ADVANCED BEFORE THE LD. COMMISSIONER OF INCOM OWEVER IN THE GROUNDS OF APPEAL, NO SPECIFIC GROUND ON THIS BEHALF WAS URGED UP BEFORE HIM FOR ADJUDICATION. ACCORDINGLY, YOUR APPELLANT WITH THE LEAVE OF YOUR HONOUR WISHES TO RAISE THE FOLLOWING GROUNDS AS UNDER: - T IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, THE LD COMMISSIONER OF INCOME TAX (APPEALS) DURGUPUR ACTED UNLAWFULLY IN NOT APPRECIATING THAT THE CONDITIONS PRECEDENT FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE INCOME TAX ACT; 1961 WAS NOT COMPLIED WI TH AND/OR FULFILLED FOR THE LD ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, DURGAPUR IN PASSING THE ASSESSMENT ORDER U/S. 143(3) OF THE INCOME TAX ACT; 1961 AND HIS PURPORTED FINDINGS 011 THAT BEHALF ARE ABSOLUTELY IS AB INITIO VOID ULTRA VIRES AND NULL IN LAW' 3. THAT DUE TO LACK OF LEGAL OPINION, THE AFORESAID GROUND WAS RAISED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DURGAPUR. IN FACT, THE AFORESAID GROUND IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER AND AS SUCH. LEAVE TO ARGUE THE GROUND MAY PLEASE BE GRANTED IN THIS REGARD. 4. THAT YOUR APPELLANT HAS A STRONG PRIMA FACIE CASE. THE BALANCE OF CONVENIENCE STRONGLY FAVOURS YOUR APPELLANT IN PASSING AN ORDER OF ADMISSION OF THE ADDITIONAL GROUND. YOUR APPELLANT WILL SUFF ER IRREPARABLE INJURY IF THE PRAYER IS REFUSED. AFTER HEARING RIVAL CONTENTIONS, I ADMIT THIS ADDITIONAL GROUND AS IT IS A LEGAL , RAISING A JURISDICTIONAL ISSUE AND DOES NOT REQUIRE ANY INVESTIGATION INTO THE FACTS. THE LD. COUNSEL FOR THE ASSE SSEE 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 CORPORATE ASSESSEE AND THE INCOME RETURNED IS ABOVE 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 PASS 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. RITS, 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 THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE CON CURRENT JURISDICTION ITH THE ITO AS WELL AS THE ACIT AND HENCE THE ASSESSMENT CANNOT BE I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY CIRCLE 1, DURGAPUR IN THE ASSESSMENT ORDER FRAMED U/S. 143(3) OF THE 2. . THAT THOUGH VERBAL ARGUMENTS ON THE VALIDITY OF THE ASSESSMENT ORDER FRAMED UJS. 143(3) OF THE ACT WERE ADVANCED BEFORE THE LD. COMMISSIONER OF INCOM E TAX OWEVER IN THE GROUNDS OF APPEAL, NO SPECIFIC GROUND ON THIS BEHALF WAS URGED UP BEFORE HIM FOR ADJUDICATION. ACCORDINGLY, YOUR APPELLANT WITH T IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, THE LD COMMISSIONER OF INCOME TAX (APPEALS) DURGUPUR ACTED UNLAWFULLY IN NOT APPRECIATING THAT THE CONDITIONS PRECEDENT FOR ISSUANCE OF NOTICE TH AND/OR FULFILLED FOR THE LD ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, DURGAPUR IN PASSING THE ASSESSMENT ORDER U/S. 143(3) OF THE INCOME TAX ACT; 1961 AND HIS PURPORTED FINDINGS 011 THAT BEHALF ARE 3. THAT DUE TO LACK OF LEGAL OPINION, THE AFORESAID GROUND WAS RAISED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DURGAPUR. IN FACT, THE AFORESAID GROUND IS TO ARGUE 4. THAT YOUR APPELLANT HAS A STRONG PRIMA FACIE CASE. THE BALANCE OF CONVENIENCE STRONGLY FAVOURS YOUR APPELLANT IN PASSING AN ORDER OF ADMISSION OF THE ADDITIONAL ADMIT THIS ADDITIONAL GROUND AS IT IS A LEGAL AND DOES NOT REQUIRE ANY INVESTIGATION INTO SSEE SUBMITTED THAT AS PER BOARD INSTRUCTION I)], DT. 31/01/2011, THE JURISDICTION OF THE 1, DURGAPUR, AS INCOME RETURNED IS ABOVE AND WHEREAS, THE STATUTORY NOTICE U/S 143(2) OF THE ACT, WAS ISSUED 1(1), DURGAPUR, WHO HAD NO JURISDICTION OF THE CASE. HE SUBMITTED THAT THE ASSESSMENT ORDER WAS PASS ED BY THE 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 THE LOWER AUTHORITIES. THE LD. COUNSEL WOULD BE REFERRING TO AS AND CURRENT JURISDICTION ITH 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 CONT CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, 8. I FIND THAT THERE IS NO DISPUTE IN THE FACT THAT THE NOTICE U/ DT. 29/09/2016 HAS BEEN ISSUED BY THE ITO, WD WAS TRANSFERRED TO THE JURISDICTION OF THE ACIT ON 11/08/2017 NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURISDIC OF THIS CASE AND WHO HAD COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, CIRCLE- 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. 9. THIS BENCH OF T HE TRIBUNAL IN THE CASE OF ITA NO. 2073/KOL/2016 ORDER DT. 27.09.2017, 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 THE PECUNIARY JURISDICTION LIES BEFORE AC/DC. IN THIS CASE, ADMITTEDLY, THE ASSESSEE AN INDIVIDUAL (NON CORP INCOME OF RS.50,28,040/ 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 ITO, WARD- 1, HALDIA ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY THE AO. THE AO NOTED THAT SINCE THE RETURNED INCOME IS MORE THAN RS. 15 LACS THE CASE WAS TRANSFERRED FROM THE ITO, WARD ACIT, CIRCLE- 27 AND THE SAME WAS RECEIVED BY THE OFFICE OF THE ACIT, CIRCLE HALDIA ON 24.09.2014 AND IMMEDIATELY ACIT ISSUED NOTICE U/S. 142(1) OF THE ACT ON THE SAME DAY. FROM THE AFORESAID FACTS THE FOLLOWING FACTS EMERGED: 3 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 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 HAVE HEARD RIVAL CONT ENTIONS. 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:- 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 OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURISDIC COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. HE TRIBUNAL IN THE CASE OF SHRI SUKUMAR CH. SAHOO VS. ACIT IN ITA NO. 2073/KOL/2016 ORDER DT. 27.09.2017, HELD AS FOLLOWS:- 5. FROM A PERUSAL OF THE ABOVE INSTRUCTION OF THE CBDT IT IS EVIDENT THAT THE PECUNIARY JURISDICTION CONFERRED BY THE CBDT ON ITOS IS IN RESPECT TO THE 'NON CORPORATE RETURNS' FILED WHERE INCOME DECLARED IS ONLY UPTO RS.15 LACS ; AND THE 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 CORP ORATE 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 1, HALDIA ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY THE AO. THE AO NOTED THAT SINCE THE RETURNED INCOME IS MORE THAN RS. 15 LACS THE CASE WAS TRANSFERRED FROM THE ITO, WARD - 1, HALDIA TO 27 AND THE SAME WAS RECEIVED BY THE OFFICE OF THE ACIT, CIRCLE HALDIA ON 24.09.2014 AND IMMEDIATELY ACIT ISSUED NOTICE U/S. 142(1) OF THE ACT ON THE SAME DAY. FROM THE AFORESAID FACTS THE FOLLOWING FACTS EMERGED: I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY 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 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 ENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE S 143(2) OF THE ACT 1(1), DURGAPUR. LATER, THE CASE . THEREAFTER, NO OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER HAVING JURISDIC TION COMPLETED THE ASSESSMENT ON 26/12/2017 I.E., ACIT, 1(1), DURGAPUR. UNDER THESE CIRCUMSTANCES, THE QUESTION IS WHETHER THE ASSESSMENT IS BAD IN LAW FOR WANT OF ISSUAL OF NOTICE U/S 143(2) OF THE ACT. SHRI SUKUMAR CH. SAHOO VS. ACIT IN 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 THE JURISDICTION TO CONDUCT ASSESSMENT IF IT IS ABOVE RS 15 LAKHS. CORPORATE PERSON I.E. LIKE ASSESSEE, THE PECUNIARY JURISDICTION LIES BEFORE AC/DC. IN THIS CASE, ADMITTEDLY, THE ORATE PERSON) WHO UNDISPUTEDLY DECLARED 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 ISSUED BY THE THEN 1, HALDIA ON 06.09.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 19.09.2013 AS NOTED BY THE AO. THE AO NOTED THAT SINCE THE RETURNED INCOME IS 1, HALDIA TO 27 AND THE SAME WAS RECEIVED BY THE OFFICE OF THE ACIT, CIRCLE -27, HALDIA ON 24.09.2014 AND IMMEDIATELY ACIT ISSUED NOTICE U/S. 142(1) OF THE ACT ON THE SAME DAY. FROM THE AFORESAID FACTS THE FOLLOWING FACTS EMERGED: I) THE ASSESSEE HAD FILED R ISSUED NOTICE UNDER SECTION 143(2) II) THE ITO, WARD- 1, HALDIA TAKING NOTE THAT THE INCOME RETURNED WAS ABOVE RS. 15 LACS TRANSF ERRED THE CASE TO ACIT, CIRCLE III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE HALDIA. 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 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 RETURNED INCOME IS ABOVE RS. 15 LACS IT WAS THE AC/DC. SO, SINCE THE RETURNED INCOME BY ASSESSEE AN INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS THE ASSESSEE. IT IS SETTLED LAW THAT SERVING OF NOTICE U/S. 143(2) OF THE ACT IS A SINE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 06.09.2013 BY ITO, WARD- 1, HALDIA WHEN HE DID NOT HAVE THE PECUNIARY JURISDICTION TO ASSUME JURISDICTION AND ISSUE NOTICE. ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO ISSUE NOTICE HE DULY TRANSFERRED THE FILE TO THE ACIT, CIRCLE-27, HALDIA ON 24.09. 2014 WHEN THE ACIT ISSUED STATUTORY NOTICE WHICH WAS BEYOND THE TIME LIMIT PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT. WE NOTE THAT THE ACIT BY ASSUMING THE JURISDICTION AFTER THE TIME PRESCRIBED FOR ISSUANCE OF NOTICE U/S. 1 NON JUDICE AFTER THE LIMITATION PRESCRIBED BY THE STATUTE WAS CROSSED BY HIM. THEREFORE, THE ISSUANCE OF NOTICE BY THE ACIT, CIRCLE LIMITATION PERIOD FOR ISSUANCE OF STATUTORY NOTICE U/S. 143(2) OF 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, T 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 REPORTED IN [2017] 78 TAXMANN.COM 89 (KOLKATA RETURN OF INCOME OF ASSESSEE WAS RS. 12 LAKHS JURISDICTION FOR SCRUTINY ASSESSMENT VESTED IN INCOME 4 I) THE ASSESSEE HAD FILED R ETURN OF INCOME DECLARING RS.50,28,040/ - SECTION 143(2) OF THE ACT ON 06.09.2013. 1, HALDIA TAKING NOTE THAT THE INCOME RETURNED WAS ABOVE RS. ERRED THE CASE TO ACIT, CIRCLE -27, HALDIA ON 24.09.2014. III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 29.03.2013 DECLARING TOTAL INCOME OF . AS PER THE CBDT INSTRUCTION THE MONETARY LIMITS IN RESPECT TO AN ASSESSEE WHO IS AN INDIVIDUAL WHICH FALLS UNDER THE CATEGORY OF 'NON CORPORATE RETURNS' THE ITO'S INCREASED MONETARY LIMIT WAS UPTO RS.15 LACS; AND IF THE RETURNED INCOME IS ABOVE RS. 15 LACS IT WAS THE AC/DC. SO, SINCE THE RETURNED INCOME BY ASSESSEE AN INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS THE ASSESSEE. IT IS SETTLED LAW THAT SERVING OF NOTICE U/S. 143(2) OF THE ACT IS A SINE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 06.09.2013 BY 1, HALDIA WHEN HE DID NOT HAVE THE PECUNIARY JURISDICTION TO ASSUME JURISDICTION AND ISSUE NOTICE. ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO ISSUE NOTICE HE DULY TRANSFERRED THE FILE TO THE 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. 1 43(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, T 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. ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. THIS BENCH OF THE TRIBUNAL IN THE CASE OF KRISHNENDU CHOWDHURY VS. ITO REPORTED IN [2017] 78 TAXMANN.COM 89 (KOLKATA -TRIB.) HELD AS FOLLOWS:- RETURN OF INCOME OF ASSESSEE WAS RS. 12 LAKHS - AS PER CBDT INSTRUCTION, JURISDICTION FOR SCRUTINY ASSESSMENT VESTED IN INCOME - TAX OFFICER AND NOTICE I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY - . THE ITO 1, HALDIA TAKING NOTE THAT THE INCOME RETURNED WAS ABOVE RS. III) ON 24.09.2014 STATUTORY NOTICES FOR SCRUTINY WERE ISSUED BY ACIT, CIRCLE -27, 6. WE NOTE THAT THE CBDT INSTRUCTION IS DATED 31.01.2011 AND THE ASSESSEE HAS 29.03.2013 DECLARING TOTAL INCOME OF . 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 LACS; AND IF THE RETURNED INCOME IS ABOVE RS. 15 LACS IT WAS THE AC/DC. SO, SINCE THE RETURNED INCOME BY ASSESSEE AN INDIVIDUAL IS ABOVE RS.15 LAKH, THEN THE JURISDICTION TO ASSESS THE ASSESSEE LIES ONLY BY AC/DC AND NOT ITO. SO, THEREFORE, ONLY THE AC/DC HAD THE JURISDICTION TO ASSESS THE ASSESSEE. IT IS SETTLED LAW THAT SERVING OF NOTICE U/S. 143(2) OF THE ACT IS A SINE QUA NON FOR AN ASSESSMENT TO BE MADE U/S. 143(3) OF THE ACT. IN THIS CASE, NOTICE U/S. 143(2) OF THE ACT WAS ISSUED ON 06.09.2013 BY 1, HALDIA WHEN HE DID NOT HAVE THE PECUNIARY JURISDICTION TO ASSUME JURISDICTION AND ISSUE NOTICE. ADMITTEDLY, WHEN THE ITO REALIZED THAT HE DID NOT HAD THE PECUNIARY JURISDICTION TO ISSUE NOTICE HE DULY TRANSFERRED THE FILE TO THE 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 43(2) OF THE ACT NOTICE BECAME QOARUM NON JUDICE AFTER THE LIMITATION PRESCRIBED BY THE STATUTE WAS CROSSED BY HIM. 27, HALDIA AFTER THE 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, T HE 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. KRISHNENDU CHOWDHURY VS. ITO AS PER CBDT INSTRUCTION, TAX OFFICER AND NOTICE UNDER SECTION 143(2) MUST BE ISSUED BY INCOME NONE OTHER - BUT, NOTICE WAS 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 VOID SINCE ISSUE OF NOTICE UNDER SECTION 143(2) WAS NOT DONE BY INCOME OFFICERS AS SPECIFIED IN CBDT INSTRUCTION NO. 1/2011. 9.2. THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE IN [2005] 278 ITR 218 (CAL.) HAS HELD AS FOLLOWS: SECTION 254 OF THE INCOME YEARS 1983-84 TO 1987 - 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 O F CAUSE OF ACTION BUT ON DATE WHEN IT IS INITIATED 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 9.3. THE HONBLE SUPREME COURT IN THE CASE OF [2019] 108 TAXMANN.COM 183 (SC), 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 NO (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RESPONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 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 WEL 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 POIN T 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. ACCORDIN G 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 NOTIC 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 EMANAT 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. 5 UNDER SECTION 143(2) MUST BE ISSUED BY INCOME -TAX OFFICER, WARD - BUT, NOTICE WAS ISSUED BY ASSTT. COMMISSIONER, CIRCLE HALDIA MUCH AFTER CBDT'S INSTRUCTION AND KNOWING FULLY WELL THAT HE HAD NO JURISDICTION 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 OFFICERS AS SPECIFIED IN CBDT INSTRUCTION NO. 1/2011. THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF WEST BENGAL STATE ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE HAS HELD AS FOLLOWS: - SECTION 254 OF THE INCOME -TAX ACT, 1961 - APPELLATE TRIBUNAL - POWERS OF - 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 HELD, YESWHETHER JURISDICTION OF ASSESSING AUTHORITY IS NOT DEPENDENT ON F CAUSE OF ACTION BUT ON DATE WHEN IT IS INITIATED - HELD, YES 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 CREATED - HELD, YES ASSESSEE THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LAXMAN DAS KHANDELWAL [2019] 108 TAXMANN.COM 183 (SC), HELD AS FOLLOWS:- 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 NO (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE RESPONDENT HAD PARTICIPATED IN THE PROCEEDINGS, THE PROVISIONS OF SECTION 292BB WOULD BE A 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 WEL L 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. T 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. G 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 NOTIC E 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 EMANAT ED 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. I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY - I, HALDIA AND ISSUED BY ASSTT. COMMISSIONER, CIRCLE HALDIA MUCH AFTER CBDT'S INSTRUCTION AND KNOWING FULLY WELL THAT HE HAD NO JURISDICTION WHETHER, THEREFORE, NOTICE ISSUED BY ASSTT. COMMISSIONER WAS TAX OFFICERS BECOMES VOID SINCE ISSUE OF NOTICE UNDER SECTION 143(2) WAS NOT DONE BY INCOME -TAX WEST BENGAL STATE ELECTRICITY BOARD VS. DEPUTY COMMISSIONER OF INCOME TAX, SPECIAL RANGE I, REPORTED POWERS OF - ASSESSMENT 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 HELD, YESWHETHER JURISDICTION OF ASSESSING AUTHORITY IS NOT DEPENDENT ON 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 CIT VS. LAXMAN DAS KHANDELWAL 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 NO TICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER. ACCORDING TO MR. MAHABIR SINGH, LEARNED SENIOR ADVOCATE, SINCE THE 292BB WOULD BE A 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 L 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. T 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. G 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 E 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 ED 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 10. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN AL 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 OVER THE ASSESSEE , HAS NOT ISSUED A NOTICE U/S 143(2) OF THE ACT AS REQUIRED BY T 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 OB JECTION 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 THAT I NEED NOT ADJUDICATE THIS ISSUE, AS I HAVE HELD THAT NON 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. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE DATED : 08.01.2020 {SC SPS} 6 RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN AL 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 , HAS NOT ISSUED A NOTICE U/S 143(2) OF THE ACT AS REQUIRED BY T STATUTE. NOTICE ISSUE BY THE OFFICER HAVING NO JURISDICTION OF THE ASSESSEE IS NULL AND 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 JECTION 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 /S 143(2) OF THE ACT BY THE JURISDICTIONAL ASSESSING OFFICER MAKES THE UNDER THESE CIRCUMSTANCES, WE ALLOW THIS APPEAL OF THE IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 8 TH DAY OF JANUARY, 2020. SD/- [J. SUDHAKAR REDDY] ACCOUNTANT MEMBER I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN AL L THESE CASE- LAW AND APPLYING THE SAME TO THE FACTS OF THE CASE, WE HOLD THAT THE ASSESSMENT HAVING JURISDICTION , HAS NOT ISSUED A NOTICE U/S 143(2) OF THE ACT AS REQUIRED BY T HE STATUTE. NOTICE ISSUE BY THE OFFICER HAVING NO JURISDICTION OF THE ASSESSEE IS NULL AND 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 JECTION U/S 124(3) OF THE ACT HAS TO BE TAKEN BY THE ASSESSEE ON RECTIFYING NOTICE JURISDICTIONAL ASSESSING OFFICER, I AM OF THE VIEW ISSUAL OF STATUTORY /S 143(2) OF THE ACT BY THE JURISDICTIONAL ASSESSING OFFICER MAKES THE UNDER THESE CIRCUMSTANCES, WE ALLOW THIS APPEAL OF THE C OPY OF THE ORDER FORWARDED TO: 1. SOMA ROY C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY WEST BENGAL 712 105 2. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 3. 4. CIT(A)- 5. CIT- , 6 . CIT(DR), KOLKATA BENCHES, KOLKATA. 7 OPY OF THE ORDER FORWARDED TO: ASSOCIATES, ADVOCATES ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE -1, DURGAPUR SENT THROUGH E-MAIL. . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 462/KOL/2019 ASSESSMENT YEAR: 2015-16 SOMA ROY TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES