Kusum Nangia, New Delhi V. ACIT, Circle-2(2)(2) Int. Tax., New Delhi

ITA 94/DEL/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7382 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Delhi
• Assessment Year: 2016-2017
• Appeal Filed On: 06-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY CHOUDHARY
• Assessee Lawyers: WAY OF FILING ADDITIONAL GROUNDS. LD
• Keywords: Period of limitation; Competent authority; Time period of passing order; Set aside; Capital Gains
• Section: 148; 54; 12; 201; 292BB; 143(2); 119; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.87/DEL./2020 (ASSESSMENT YEAR : 2016-17) DCIT (IT), CIRCLE 2(2)(3), VS. DR. (MRS.) KUSUM NA NGIA, NEW DELHI. C/O M/S. P.N. KHANNA & CO., 14 15F, CONNAUGHT PLACE, NEW DELHI 110 001. (PAN : ACYPN2552N) ITA NO.94/DEL./2020 (ASSESSMENT YEAR : 2016-17) DR. (MRS.) KUSUM NANGIA, VS. DCIT (IT), CIRCLE 2( 2)(3), C/O S.K. BINDAL & CO., NEW DELHI. B 153, SECTOR 51, NOIDA 201 301 (U.P.) (PAN : ACYPN2552N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. BINDAL, ADVOCATE SHRI SANJIV BINDAL, ADVOCATE, SHRI RINKY SHARMA, ADVOCATE REVENUE BY : SHRI VIJAY CHOUDHARY, SENIOR DR DATE OF HEARING : 13.01.2021 DATE OF ORDER : 22.01.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 2 PRESENT CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE ARE BEING DISPOSED OFF BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DISCUSSION. 2. APPELLANT, DCIT (IT), CIRCLE 2(2)(2), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 31.10.2019 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-43, NEW DELHI QUA THE ASSESSMENT YEAR 2016-17 ON THE GROUNDS THAT :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN COMPUTING THE C OST OF ACQUISITION AS ON 01.04.1981 ON THE BASIS OF DATA P ROVIDED BY MINISTRY OF URBAN DEVELOPMENT INSTEAD OF RELYING ON THE DOCUMENTS (SALE DEED) PROVIDED BY THE DEPARTMENT OF ARCHIVES FOR (LAND COST, COST OF CONSTRUCTION AND COST OF IM PROVEMENT) IN VICINITY OF KALKAJI ITSELF. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE COST OF CONSTRUCTION OF THE PROPERTY IN THE HANDS O F THE ASSESSEE SHOULD HAVE BEEN TAKEN AT NIL. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT NUMBER OF RESIDENTIAL UNITS IN A RESIDENTIAL BUILDING IS NOT RELEVANT FOR GRANTING EXEMPTION U/S 54 IGNORING THE SPECIFIC AME NDMENT MADE BY FINANCE ACT, 2014. 3. APPELLANT, DR. (MRS.) KUSUM NANGIA (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL SOU GHT TO SET ASIDE THE IMPUGNED ORDER DATED 31.10.2019 PASSED BY THE C OMMISSIONER OF INCOME-TAX (APPEALS)-43, NEW DELHI QUA THE ASSES SMENT YEAR 2016-17 ON THE GROUNDS THAT :- ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 3 1. THE CIT (APPEALS) ERRED IN LAW AND ON FACTS IN RECOMPUTING THE ADDITIONS MADE FOR LONG TERM AND SH ORT TERM CAPITAL GAINS AT RS.54,04,128/- AND RS.58,45,5 00/- RESPECTIVELY WITHOUT APPRECIATING THAT NEITHER ANY PROPERTY WAS SOLD DURING THE RELEVANT PREVIOUS YEAR BY THE A PPELLANT NOR WAS THE ALLEGED SALE CONSIDERATION OF RS. 4.85 CRORE EVER RECEIVED BY HER. THUS, CAPITAL GAINS SO COMPUTED MU ST BE DELETED. 2. THE CIT (APPEALS) ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THE FACT THAT CAPITAL GAIN, THOUGH AT NIL, WAS ERRONEOUSLY DECLARED IN THE RETURN OF INCOME FOR AY 2016-17 BY THE APPELLANT ON THE ADVICE OF HER COUNSEL WHERE AS FACTUALLY NO SUCH GAIN AROSE TO HER SINCE NO 'TRANSFER' OF AS SET TOOK PLACE; AND ALSO BY IGNORING THE JUDGMENT OF THE HON'BLE AP EX COURT IN PR.CIT VS. LALITABEN GOVINDBHAI PATEL (2019) 103 TAXMAN.COM 10, PLACED ON HIS RECORD IN THIS REGARD. THUS, CAPITAL GAIN SO COMPUTED MUST BE DELETED. 3. THE CIT (APPEALS) OTHERWISE ALSO ERRED IN LAW A ND ON FACTS IN REJECTING THE VALUATION OF LAND AS ON 1 ST APRIL, 1981 OBTAINED BY THE APPELLANT FROM A GOVERNMENT APPROVE D REGISTERED VALUER AND DECREASING IT WITHOUT REFERRI NG THE MATTER TO DVO, THE COMPETENT AUTHORITY, WHICH IS MA NDATORY; AND ALSO WITHOUT AFFORDING AN OPPORTUNITY TO THE AP PELLANT TO REBUT THE SAME. THUS, THE ADDITION FOR CAPITAL GAIN SO MADE WITHOUT ANY AUTHORITY OF LAW MUST BE DELETED. 4. THE CIT (APPEALS) ERRED IN LAW AND ON FACTS IN RE- COMPUTING THE ADDITIONS MADE FOR LONG TERM AND SHOR T TERM CAPITAL GAINS AT RS.54,04,128/- AND RS.58,45,500/- RESPECTIVELY IN AY 2016-17, WHILE IGNORING THAT THE ONLY CONSIDE RATION FOR 'TRANSFER OF DEVELOPMENT RIGHTS' OF THE PROPERTY RE CEIVED BY THE APPELLANT FROM THE BUILDER WAS RS. 25 LAKHS AND THA T TOO IN THE PERIOD RELEVANT TO THE A Y 2014-15, HENCE COULD BE TAXABLE IN THAT YEAR ONLY. THUS, THE ADDITIONS MADE FOR CAPITA L GAINS IN AY 2016-17 MUST BE DELETED. 4. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE, BEING A NON-RES IDENT INDIAN, HELD A PROPERTY SITUATED AT R-6, NEHRU ENCLAVE, KAL KAJI, NEW DELHI CONSISTING OF A FREEHOLD PLOT MEASURING 866 SQ.YDS. WITH A ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 4 RESIDENTIAL HOUSE BUILT THEREON. ASSESSEE ENTERED INTO A COLLABORATION AGREEMENT DATED 22.05.2013 WITH SHRI VED PRAKASH ISRANI, BUILDER, FOR DEVELOPING THE SAID PROPERTY. THE BUILDER WAS REQUIRED TO REDEVELOP THE EXISTING STRUCTURE ON THE PROPERTY ON BEHALF OF THE OWNER BY UTILIZING HIS OWN FUNDS AND RESOURCES AND THE ENTIRE COST OF CONSTRUCTION WAS TO BE BORNE BY THE BUILDER. IN ACCORDANCE WITH THE AGREEMENT, THE ASSESSEE RECEIVE D AN AMOUNT OF RS.25,00,000/- FROM THE BUILDER. AO DURING SCRUTIN Y PROCEEDINGS CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY TH E COST OF CONSTRUCTION OF REMAINING BUILDING BORNE BY THE BUI LDER SHOULD NOT BE INCLUDED IN COMPUTATION OF SALE CONSIDERATION. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, AO MADE ADDITIO N OF RS.6,47,14,523/- BY WAY OF DECLINING EXEMPTION U/S 54 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) CLAIMED BY THE ASSESSEE AND ADDED THE AMOUNT TO THE TOTAL INCOME OF THE ASS ESSEE AS LONG TERM CAPITAL GAIN. AO ALSO MADE ADDITION OF RS.1,3 6,03,950/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN ON SALE OF FLATS . 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING THE APPEAL WHO HAS PARTLY ALLOWED THE APPEAL . FEELING AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT (A), B OTH ASSESSEE AS ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 5 WELL AS THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT CROSS APPEALS. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. AT THE VERY OUTSET, LD. AR FOR THE ASSESSEE CONT ENDED THAT THE AO PASSED THE IMPUGNED ASSESSMENT ORDER WITHOUT ANY JURISDICTION AND AS SUCH, SAME IS VOID AB INITIO AND LIABLE TO B E QUASHED. HE HAS ALSO MOVED APPLICATION RAISING ADDITIONAL GROUNDS T O THE FOLLOWING EFFECT :- 1 . THE AO ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGNED ASSESSMENT ORDER I) BY EXPANDING SCOPE OF HIS ENQUIRY AND INVESTIGATION BEYOND THE REASON FOR SELECTING THE C ASE FOR SCRUTINY ON DEFINED ISSUES, AS MENTIONED IN THE NOTICES U/S 143(2) OF THE ACT AND IN THE IMPUGNED ASSESSMENT ORDER, II) WITHOUT OBTAINING MANDATORY PRIOR PERMISSION OF THE PR.CIT FOR EXPANDING THE SCOPE AS PER THE NO TICE ISSUED U/S 142( 1) OF THE ACT IN ACCORDANCE WITH TH E DIRECTIONS OF THE CBDT, IS VOID AB-INITIO, BAD IN L AW AND NEEDS TO BE QUASHED. 2. THE IMPUGNED ASSESSMENT ORDER IS BAD IN LAW AND VOID AB-INITIO BECAUSE THE FIRST TWO NOTICES U/S 143(2) OF THE ACT ISSUED WITHIN THE PRESCRIBED LIMITATION PERIOD WERE ONLY BY THE NON-JURISDICTIONAL ASSESSING OFFICERS WHEN CORRECT JURISDICTION OVER THE CASE OF THE ASSESSEE (AN OLD NRI LADY ABOV E 80 YEARS) BEING NON-RESIDENT UNDER THE PROVISIONS OF THE ACT AND FILING RETURNS AS NRI FOR THE LAST NUMBER OF YEARS WAS WIT H THE AO (INTERNATIONAL TAXATION), NEW DELHI. THOUGH THE ASS ESSMENT HAS FINALLY BEEN COMPLETED BY THE APPROPRIATE AO, B UT HE ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 6 NEVER ISSUED ANY NOTICE U/S 143(2) NEITHER WITHIN S TATUTORY PERIOD NOR EVEN LATER, WHICH MAKES THE ASSESSMENT O RDER BAD IN LAW. THUS, THE ASSESSMENT ORDER MUST BE QUASHED. 8. LD. DR FOR THE REVENUE OPPOSED THE APPLICATION R AISING ADDITIONAL GROUNDS FOR THE REASON THAT THE ASSESSEE HAS DULY PARTICIPATED IN THE ASSESSMENT AS WELL AS FIRST APP ELLATE STAGE PROCEEDINGS AND PRAYED FOR DISMISSAL OF THE APPLICA TION. 9. WE ARE OF THE CONSIDERED VIEW THAT ADDITIONAL GR OUNDS RAISING LEGAL ISSUE CAN BE ENTERTAINED BY THE QUASI -JUDICIAL AUTHORITY AT ANY STAGE OF THE PROCEEDINGS AND OUR VIEW IS FOR TIFIED BY THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN C ASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) . MOREOVER, BY ACCEPTING THE LEGAL GROUND, NO FRES H INVESTIGATION QUA FACTS IS REQUIRED AND ISSUE IS TO BE DECIDED ON THE BASIS OF MATERIAL ALREADY AVAILABLE ON RECORD, HENC E APPLICATION FOR ADDITIONAL GROUND IS ALLOWED. 10. FIRST OF ALL, IT WOULD BE EXPEDIENT TO DECIDE T HE LEGAL GROUNDS RAISED BY THE ASSESSEE BY WAY OF FILING ADDITIONAL GROUNDS. LD. AR FOR THE ASSESSEE CHALLENGING THE ASSUMPTION OF JURI SDICTION BY THE AO/ACIT, CIRCLE INTERNATIONAL TAX 2(2)(2) CONTENDED THAT WHEN THE ASSESSEE IS A NON-RESIDENT INDIAN RESIDING IN T HE USA, WHICH IS EVIDENT FROM THE INCOME-TAX RETURN FILED BY THE ASS ESSEE FOR THE YEAR UNDER ASSESSMENT AVAILABLE AT PAGES 74 TO 76 O F THE PAPER ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 7 BOOK, NOTICE U/S 143 (2) OF THE ACT IN THIS CASE WA S ISSUED BY ITO, WARD 52(2), DELHI WHICH WAS REQUIRED TO BE ISSUED B Y ITO, (INTERNATIONAL TAXATION) AND AS SUCH, THE ENTIRE AS SESSMENT PROCEEDINGS ARE VOID AB INITIO. HOWEVER, ON THE OT HER HAND, LD. DR FOR THE REVENUE RELIED UPON THE ORDER PASSED BY THE AO AS WELL AS LD. CIT (A) SO FAR AS JURISDICTION IS CONCERNED AND CONTENDED THAT WHEN ASSESSEE HAS DULY PARTICIPATED IN THE ASSESSME NT PROCEEDINGS, HE HAS NO RIGHT TO CHALLENGE THE JURISDICTION AT TH IS STAGE. 11. TO PROCEED FURTHER, IMPUGNED NOTICE ISSUED U/S 143(2) OF THE ACT TO INITIATE THE ASSESSMENT PROCEEDINGS IS EXTRA CTED FOR READY PERUSAL AS UNDER :- GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT OFFICE OF THE INCOME TAX OFFICER WARD 52(5), DELHI TO, KUSUM NANGIA C/O M/S P N KHANNA AND CO. C/O. M/S P N KHANNA AND CO., SHIVAM HOUSE 14-15 F CON. PLACE 110001, DELHI INDIA PAN : ACYPN2552N AY: 2016-17 NOTICE NO. ITBA/AST/S/143(2)/ 2017-18/1005043075 (1) DATED : 24/07/2017 NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 LIMITED SCRUTINY (COMPUTER AIDED SCRUTINY SELECTION ) SIR/MADAM/M/S., ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 8 THIS IS FOR YOUR KIND INFORMATION THAT THE RETURN O F INCOME FOR ASSESSMENT YEAR 2016-17 FILED VIDE ACK. NO. 1830800 90310516 ON 31/05/2016 HAS BEEN SELECTED FOR SCRUTINY. FOLLOWING ISSUE(S) HAVE BEEN IDENTIFIED FOR EXAMINA TION: 1. WHETHER DEDUCTION FROM CAPITAL GAINS HAS BEEN CLAIM ED CORRECTLY. 2. IN VIEW OF THE ABOVE, I WOULD LIKE TO GIVE YOU AN OPPORTUNITY TO PRODUCE ANY EVIDENCE/ INFORMATION WH ICH YOU FEEL IS NECESSARY IN SUPPORT OF THE SAID RETURN OF INCOME ON OR BEFORE 09.08.2017 AT 12:30 PM. 3. THE ABOVE MENTIONED EVIDENCE/ INFORMATION IS TO BE FURNISHED ONLINE ELECTRONICALLY IN E-PROCEEDING F ACILITY THROUGH YOUR ACCOUNT IN E-FILING WEBSITE OF INCOME- TAX DEPARTMENT. FURTHER PROCEEDINGS SHALL ALSO BE CONDU CTED ELECTRONICALLY(*). A BRIEF NOTE ON SALIENT FEATURES OF E- PROCEEDING IS ENCLOSED. 4. IN CASE YOU DO NOT WISH TO PRODUCE ANY EVIDENCE/INFORMATION, AS MENTIONED IN PARA 2, YOU A RE REQUESTED TO INTIMATE THE SAME ELECTRONICALLY ON OR BEFORE 09/08/2017. 5. SPECIFIC QUESTIONNAIRES/REQUISITION OF INFORMATION OR DOCUMENTS WOULD BE SENT SUBSEQUENTLY, IF REQUIRED. 6. PARA(S) (2) TO (4) ARE APPLICABLE IF YOU HAVE AN AC COUNT IN E-FILING WEBSITE OF INCOME-TAX DEPARTMENT. TILL SUCH AN ACCOUNT IS CREATED BY YOU, ASSESSMENT PROCEEDINGS S HALL BE CARRIED OUT EITHER THROUGH YOUR E-MAIL ACCOUNT OR M ANUALLY (IF E-MAIL IS NOT AVAILABLE). (*) SUBJECT TO EXCEPTIONS AS PER THE ENCLOSED NOTE SD/- KALICHARAN PRASAD, INCOME TAX OFFICER, WARD 52 (5), ROOM NO.1508, 15 TH FLOOR, E-2 BLOCK, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, NEW DELHI-110 002. ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 9 12. UNDISPUTEDLY, ASSESSEE BEING NON-RESIDENT INDIA N HAS BEEN FILING HER RETURN OF INCOME AS A NON-RESIDENT INDIA N AND IN ANY CASE, ASSESSMENT IS REQUIRED TO BE FRAMED BY THE ITO (INT ERNATIONAL TAXATION). IT IS ALSO NOT IN DISPUTE THAT NOTICE I N THIS CASE U/S 143(2) OF THE ACT HAS NEVER BEEN ISSUED BY THE JURI SDICTIONAL ITO TO THE ASSESSEE. PERUSAL OF THE NOTICE ISSUED U/S 143 (2) OF THE ACT EXTRACTED IN THE PRECEDING PARA GOES TO PROVE THAT THE SAME HAS BEEN ISSUED BY THE INCOME-TAX OFFICER, WARD 52(5), NEW DELHI WHO HAD NO JURISDICTION TO ISSUE THE SAME. ON THE BASIS OF NOTICE ISSUED U/S 143 (2) (SUPRA) BY THE NON-JURISDICTIONA L AO, THE SUBSEQUENT ASSESSMENT PROCEEDINGS ON THE BASIS OF W HICH ASSESSMENT ORDER DATED 30.12.2018 WAS FRAMED BY THE JURISDICTIONAL ITO ARE VOID AB INITIO AND BAD IN LA W. PARTICULARLY WHEN AO IN PARA 3 OF THE ASSESSMENT ORDER HAS HIMSE LF ADMITTED THAT ASSESSEE IS A NON-RESIDENT INDIAN LIVING IN US A. 13. NOW, THE QUESTION ARISES FOR CONSIDERATION IS : - AS TO WHETHER ISSUANCE OF NOTICE U/S 143(2) IS A M ERE IRREGULARITY CURABLE U/S 292BB OF THE ACT OR AN ILLEGALITY MAKIN G THE ENTIRE ASSESSMENT PROCEEDINGS BAD IN LAW? 14. WE ARE OF THE CONSIDERED VIEW THAT BY NOW, IT I S SETTLED PRINCIPLE OF LAW THAT ASSUMING WRONG JURISDICTION B Y ISSUING NOTICE U/S 143 (2) BY A NON-JURISDICTIONAL AO AND THEN FRA MING THE ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 10 ASSESSMENT BY JURISDICTIONAL AO IS AN ILLEGALITY WH ICH IS NOT CURABLE UNDER THE LAW AND MAKES THE ENTIRE ASSESSME NT PROCEEDINGS VOID AB INITIO. AS PER INSTRUCTIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT), ITO, INTERNATIONAL TAXATION, W ARD 2(2)(2) HAVE THE JURISDICTION U/S 143 (2) AND NOT THE ITO, WARD 52 (5). CBDT ISSUED INSTRUCTIONS PURSUANT TO THE PROVISIONS CONTAINED UNDER SECTION 119 OF THE ACT FOR COMPLETION OF THE ASSESSMENT BY ITO/ACITS & DCITS, AS THE CASE MAY BE, AND IN VIEW OF THE INSTRUCTIONS, ASSESSMENT HAS TO BE COMPLETED BY THE JURISDICTIONAL ITO ONLY. WHEN NOTICE UNDER SECTION 143 (2) WAS IS SUED BY THE NON-JURISDICTIONAL ITO AND ASSESSMENT WAS FRAMED BY THE JURISDICTIONAL ITO, THE ASSESSMENT ORDER FRAMED IN THIS CASE IS VOID AB INITIO AND BAD IN LAW. 15. HONBLE SUPREME COURT IN CASE OF SARDAR BALDEV SINGH VS. CIT (1960) 40 ITR 605 (SC) WHILE DECIDING THE IDENTICAL ISSUE HELD AS UNDER :- A PARI MATERIA PROVISION, I.E., SECTION 34 UNDER O LD INDIAN INCOME TAX ACT, 1922 (HEREINAFTER REFERRED TO AS A CT, 1922) WAS CONSIDERED AND IT WAS HELD THAT A.O. HAVING POW ER TO ISSUE NOTICE SHOULD BE A PARTICULAR A.O. HAVING JURISDICT ION OVER ASSESSEE AT THE TIME OF ISSUE OF REQUISITE NOTICE. IF NOTICE ISSUED BY ANY OTHER A.O. OR NOTICE IS BAD FOR ANY REASON, THAN SUCH LIKE ASSESSMENT WOULD BE ILLEGAL. 16. HONBLE HIGH COURT OF PUNJAB & HARYANA IN CASE OF LT. COL. PARAMJIT SINGH VS. CIT (1996) 220 ITR 446 (PUNJAB) HELD THAT, ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 11 A NOTICE FOR REASSESSMENT CAN BE ISSUED ONLY BY AO WHO HAD CONCLUDED THE PROCEEDINGS. 17. HONBLE SUPREME COURT IN CASE OF STATE OF GUJARAT VS. RAJESH KUMAR CHIMANLAL BAROT & ANR. AIR 1996 SC 266 4 HELD THAT, IF AN ORDER IS PASSED BY A JUDICIAL OR QUASI JUDIC IAL AUTHORITY HAVING NO JURISDICTION, IT IS AN OBLIGATI ON OF APPELLATE COURT TO RECTIFY THE ERROR AND SET ASIDE ORDER PASS ED BY AUTHORITY OR FORUM HAVING NO JURISDICTION. 18. COORDINATE BENCH OF THE TRIBUNAL IN CASE OF RANJEET SINGH VS. ACIT (2009) 120 TTJ 517 (DELHI) WHILE DECIDING THE IDENTICAL ISSUE HELD THAT, WHEN NOTICE U/S 148 WAS ISSUED BY THE ITO, GHAZIABAD WHEREAS THE ASSESSEE IS BEING ASSESSED AT DELHI AND ITO, GHAZIABAD ON THE DATE OF ISSUANCE OF NOTICE HA D NO JURISDICTION TO ASSESS THE ASSESSEE, NOTICE ITSELF WAS INVALID. 19. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FO LLOWING THE DECISIONS RENDERED BY HONBLE SUPREME COURT, HONBL E HIGH COURT AND COORDINATE BENCH OF THE TRIBUNAL (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT IN THE INSTANT CASE, NO TICE ISSUED BY NON-JURISDICTIONAL ITO, WARD 52 (5) BEING QUASI-JUD ICIAL AUTHORITY AND ASSESSMENT FRAMED BY JURISDICTIONAL ITO, WARD 2 (2)(2) IS NOT A MERE REGULARITY CURABLE U/S 292BB OF THE ACT BECAUS E ISSUANCE OF ITA NO.87/DEL./2020 ITA NO.94/DEL./2020 12 NOTICE U/S 143 (2) OF THE ACT IS A FOUNDATIONAL STE P TO INITIATE AND COMPLETE THE ASSESSMENT PROCEEDINGS, SO WHEN FOUNDA TION IS MISSING SUBSEQUENT ASSESSMENT FRAMED IN THIS CASE I S NOT SUSTAINABLE IN THE EYES OF LAW BEING VOID AB INITIO , HENCE LIABLE TO BE QUASHED. CONSEQUENTLY, WITHOUT ENTERING INTO TH E MERITS OF THIS CASE, ADDITIONAL GROUND RAISED BY THE ASSESSEE IN T HIS CASE IS DECIDED IN FAVOUR OF THE ASSESSEE AND THEREBY ASSES SMENT ORDER FRAMED IN THIS CASE IS HEREBY QUASHED. CONSEQUENTL Y, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FIL ED BY THE REVENUE HAS BECOME INFRUCTUOUS, HENCE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF JANUARY , 2021. SD/- SD/- (N.K. BILLAIYA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 22 ND DAY OF JANUARY, 2021 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-43, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.