PR. CIT- 2, THANE V. NEEL CONSTRUCTIONS, NAVI MUMBAI

MA 178/MUM/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4475 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 13-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HOSHANG B IRANI
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘B‘ BENCH MUMBAI BEFORE: SHRI M.BALAGANESH, ACCOUNTANT MEMBER & MS. KAVITHA RAJAGOPAL, JUDICIAL MEMBER M.A. NO.178/Mum/2020 (Arising out of ITA No.7050/Mum/2014 (Asse ssment Year :2010-11) & M.A. NO.177/Mum/2020 (Arising out of ITA No.7049/Mum/2014 (Asse ssment Year :2009-10) Principal Commissioner of Income Tax-2, Thane 6 th Floor, Ashar IT Park ‘B’Wingh, Road No.16Z Wagle Industrial Estate Thane (W)- 400 604 Vs. M/s. Neel Construction 31, Vardhman Chambers Sector-17, Vashi Navi Mumbai – 400 703 PAN/GIR No.AADSN0640G (Appellant) .. (Respondent) Revenue by Shri Hoshang B Irani Assessee by Smt. Ritika Agarwal Date of Hearing 25/02/2022 Date of Pronouncement 05/05/2022 आदेश / O R D E R PER M. BALAGANESH (A.M): By virtue of these Miscellaneous Applications, the Revenue seeks to recall the consolidated order passed for A.Yrs. 2009-10 and 2010-11 by this Tribunal on 23/09/2019. MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 2 2. Let us take up the Miscellaneous Application preferred by the Revenue for A.Y.2009-10. We find that this Tribunal for A.Y.2009-10 in ITA No.7049/Mum/2014 dated 23/09/2019 had held that the assessment framed u/s.143(3) of the Act by the ld. AO was without jurisdiction and bad in law. For the sake of convenience, it would be relevant to state the chronology of events involved for this assessment year. Date Events AY 2008-09 Order u/s.14(3) passed by DCIT, CC-I, Thane dt:28/12/2010 26/09/2010 Return of Income filed 20/08/2010 Notice u/s.143(2) from ITO Ward 2, Panvel 27/09/2010 Notice u/s.143(2) from ITO Ward 2, Panvel 08/10/2010 Our objection regarding jurisdiction, i.e. presently jurisdiction with Thane 28/12/2010 Order u/s.143(3) for A.Y.2008-09 passed by DCIT CC-I Thane 31/01/2011 Notification effective from 1/4/2011 that jurisdiction transferred to ACIT (Refer Exhibit A) 9/5/2011 effective from 20/05/2011 Order u/s.127 transferring jurisdiction from Thane to ITO Ward Panvel EFFECT: Order u/s.127 dated 9/5/2011 effective from 20/5/2011 prevails upon notification dated 31/1/2011 effective from 1/4/2011 i.e. jurisdiction lay with ITO ward 2, Panvel with effect from 20/5/2011 26/09/2011 Notice u/s.143(2) by ACIT, Panvel Circle, Panvel. 30/11/2011 Order u/s.143(3) passed by ACIT, Panvel Circle, Panvel MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 3 3. From the aforesaid table, it could be seen that notice u/s.143(2) dated 20/08/2010 and 27/09/2010 was issued to the assessee for A.Y.2009-10 by ITO-Ward (2), Panvel. At that time itself, the jurisdiction of the assessee was lying with DCIT Central Circle Thane. This is evident from the fact that the regular scrutiny assessment proceedings for A.Y.2008-09 was going on at that particular point in time before DCIT Central Circle-1, Thane. In fact, the order u/s.143(3) of the Act was passed for A.Y.2008- 09 by DCIT, Central Circle, Thane on 28/12/2010. Hence, this goes to prove that jurisdiction of the assessee at the time of issuing notice u/s.143(2) of the Act for the A.Y.2009-10 was only with DCIT, Central Circle-Thane. In fact immediately, on receipt of notice u/s.143(2) of the Act dated 20/08/2010 and 27/09/2010, the assessee vide letter dated 08/10/2010 had indeed objected to the said notice u/s.143(2) of the Act and had also stated that the present jurisdiction lies with Thane Officer. We find from the aforesaid table that the jurisdiction of the assessee was transferred from Thane to ITO Ward Panvel vide order u/s.127 of the Act only on 09/05/2011 effective from 20/05/2011. Thereafter, on 26/09/2011, notice u/s.143(2) of the Act was issued by ACIT, Panvel to the assessee. This notice u/s.143(2) of the Act dated 26/09/2011 is admittedly time barred. Hence, the assessment framed u/s.143(3) of the Act for the A.Y.2009-10 on 30/11/2011 by Panvel Circle Officer is without jurisdiction as notice u/s.143(2) of the Act was not issued within the prescribed time by the Officer having jurisdiction. This fact has been brought on record by this Tribunal and hence, we do not find any infirmity in the order passed by this Tribunal warranting any rectification. Hence, the Miscellaneous Application preferred by the Revenue for A.Y.2009-10 is devoid of merit and is hereby dismissed. MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 4 4. Let us take up the Miscellaneous Application preferred by the Revenue for A.Y.2010-11. We find that this Tribunal for A.Y.2010-11 in ITA No.7050/Mum/2014 dated 23/09/2019 had held that the assessment framed u/s.143(3) of the Act by the ld. AO was without jurisdiction and bad in law. For the sake of convenience, it would be relevant to state the chronology of events involved for this assessment year. Date Particulars 29/09/2010 31/01/2011 09/05/2011 w.e.f. 20/05/2011 Return of Income filed Notification with effect from 01/04/2011 matter assigned to ACIT Order u/s.127 – Jurisdiction transferred from Thane to Panvel Effect On a combined reading of above notification and order it is clear that ACIT Panvel acquired jurisdiction on the appellant on 20/05/2011 24/08/2011 30/09/2011 17/01/2012 Notice u/s. 143(2) issued by ITO ward 2. Panvel instead of ACIT which was without jurisdiction Expiry of time limit for issuance of notice u/s.143(2) Notice u/s.143(2) issued by ACIT Circle Panvel which was time barred 04/01/2013 Case assigned to JCIT by CIT-II Thane by letter No.THN/CIT-11/127(2)/2012-13/2440 22/03/2013 Order u/s.143(3) passed by JCIT Panvel Conclusion For A.Y.2010-11, original notice u/s.143(2) was MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 5 without jurisdiction, rendering the impugned assessment null and void. Notice dated 17/01/2012 issued by ACIT was time barred, so no cognizance can be taken of the same 5. The ld. DR placed on record the transfer order passed by the ld. CIT u/s.127 of the Act dated 09/05/2011 having effect from 20/05/2011 wherein the jurisdiction of the assessee was transferred from DCIT, Central Circle-1, Thane to ITO Ward (2) Panvel. The ld. DR also placed on record the CBDT Instruction No.1/2011 dated 31/01/2011 wherein based on pecuniary jurisdiction of income limits for corporate and non-corporate returns, cases were transferred from ITOs to ACIT/DCITs. The said instruction was applicable from 01/04/2011. The ld. DR accordingly, argued based on this instruction of CBDT and based on pecuniary jurisdiction considering the income limits of the assessee, the jurisdiction was transferred from DCIT Thane to ITO Panvel. Accordingly, he stated that the notice issued u/s.143(2) of the Act for A.Y.2010-11 on 24/08/2011 by ITO Ward-2 Panvel was valid. The ld. DR also placed on record the notice u/s.143(2) dated 24/08/2011 issued for A.Y.2010-11 by ITO Ward-2, Panvel and notice u/s.143(2) of the Act dated 17/01/2012 for A.Y.2010-11 issued by ACIT Panvel. 6. From the aforesaid table, we find that the last date for issuance of notice u/s.143(2) of the Act for the A.Y.2010-11 expired on 30/09/2011. Before that date, notice u/s.143(2) of the Act was issued by ITO Ward-2, Panvel on 24/08/2011. On 24/08/2011, the jurisdiction of the assessee lies with ITO Ward-2, Panvel as per order u/s.127 of the Act dated 09/05/2011. We hold that when the jurisdiction lies with ITO Ward-2, Panvel who had rightly issued the notice u/s.143(2) of the Act on MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 6 24/08/2011, we are unable to comprehend ourselves to accept as to why the ACIT Panvel had issued yet another notice u/s.143(2) of the Act on 17/01/2012. No evidence is brought on record to prove as to how the jurisdiction of the assessee shifted from ITO Ward-2, Panvel to ACIT Panvel. On 04/01/2013 pursuant to an administrative order passed by CIT-2, Thane, the case was assigned to JCIT and ultimately, the assessment for A.Y.2010-11 was completed u/s.143(3) of the Act on 22/03/2013 by JCIT Panvel. Here again, we do not know how the jurisdiction got shifted to JCIT Panvel from ACIT Panvel. We find that pursuant to notification dated 31/01/2011 which is passed on pecuniary jurisdiction, ACIT Panvel had assumed jurisdiction of the assessee on 01/04/2011. If that is so, how the ITO Panvel could have issued 143(2) notice on 24/08/2011 instead of ACIT Panvel. These facts were clearly brought on record by this Tribunal in its order dated 23/09/2019. Hence we hold that the miscellaneous application preferred by the revenue is devoid of merit. We accordingly do not find any error in the said order passed by this Tribunal warranting any rectification u/s.254(2) of the Act. 7. In the result, both the Miscellaneous Applications of the Revenue are dismissed. Order pronounced on 05/05/2022 by way of proper mentioning in the notice board. Sd/- (KAVITHA RAJAGOPAL) Sd/- (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 05/05/2022 KARUNA, sr.ps MA No. 178/Mum/2020 & 177/Mum/2020 M/s. Neel Constructions 7 Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//