|CORAM:||Bhavnesh Saini (JM), Waseem Ahmed (AM)|
|CATCH WORDS:||Non-issue of s. 143(2) notice, Non-service of s. 143(2) notice|
|DATE:||March 8, 2018 (Date of pronouncement)|
|DATE:||March 21, 2018 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 143(2) Notice: The issue of a s. 143(2) notice by an AO not having jurisdiction over the assessee is irrelevant. If the proper AO does not issue the notice within the time limit, the assessment is null and void. The argument that the non-jurisdictional AO issued the s. 143(2) notice as per PAN or computerized system or internal procedure is not relevant as it violates the law|
(i) It is not in dispute that return of income has been filed on 20th November, 2006 with ITO at New Delhi having jurisdiction over the case of the assessee. The Ld. D.R. also brought on record same which support the claim of the assessee that assessee filed the original return of income at Delhi. The record also reveal that even for earlier and subsequent years, the assessee filed return of income at Delhi.
(ii) The assessment in the present case has been framed by ITO, Ward-13(1), New Delhi, having jurisdiction over the case of the assessee. The ITO, Ward-1(1), Faridabad issued notice under section 143(2) on 23rd October, 2007, who was having no jurisdiction over the case of the assessee. The ITO at Delhi issued notice under section 143(2) on 28th July, 2008 which was beyond the period prescribed under the Law.
(iii) It is, therefore, clear that the A.O. having jurisdiction over the case of the assessee did not issue notice under section 143(2) upon the assessee within the period of limitation provided under the Act. Therefore, the first notice issued by ITO, Ward-1(1), Faridabad, having no jurisdiction over the case of the assessee would not be valid and would not get any jurisdiction over the case of the assessee.
(iv) The contention of the Ld. D.R. has no merit that ITO, Ward-1(1), Faridabad was empowered to issue notice as per PAN or it was issued as per Computerized System of the Department because it is against the provisions of Law. As such the issue would be in violation of the principles of law and as such the internal procedure provided by the department would not justify the illegality committed by the ITO, Ward-1(1), Faridabad.
(v) The entire assessment proceedings are vitiated because of nonservice of jurisdictional notice under section 143(2) within the period of limitation by the A.O. having jurisdiction over the case of the assessee. No infirmity have been pointed out in the order of the Ld. CIT(A) in holding the assessment order to be null and void. We confirm the finding of fact recorded by the Ld. CIT(A) and dismiss this ground of appeal of Revenue. Since the entire assessment order is declared as null and void, there is no need to decide the issue on merit which is left with academic discussion only.