| The Tax Publishers2021 TaxPub(DT) 5425 (Pune-Trib) INCOME TAX ACT, 1961
Section 254
Where in case of assessee assessment under section 143(3) was completed but notice under section 143(2) was issued by AO having different jurisdiction in same city, then Tribunal was not justified in holding that assessment order without serving notice under section 143(2) to assessee was void-ab-initio because it was not the case that notice under section 143(2) was not issued to the assessee, therefore, considering the legislative intent as enshrined in the provision of sections 127(3) and section 127(4), there crept in mistake apparent from record in the order of Tribunal and thus, same was recalled.
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Appeal (Tribunal) - Rectification of mistake apparent under section 254 - Notice under section 143(2) was issued by AO having different jurisdiction in same city - Tribunal held assessment framed under section 143(3) to be void on grounds that notice under section 143(2) was not issued
Case of assessee was that assessment under section 143(3) was completed by AO of another jurisdiction (Ward 2(4), Aurangabad), whereas, the notice under section 143(2) was issued to the assessee by AO having different jurisdiction in same city (Ward 2(1), Aurangabad). Tribunal held that assessment order without serving notice under section 143(2) to assessee was void-ab-initio. Revenue filed instant Miscellaneous Application contending that Tribunal wrongly held assessment order to be null and void-ab-initio considering the legal grounds taken by assessee without going into the merits of the case. Held: In instant case, it was not the case that notice under section 143(2) was not issued to the assessee. Notice under section 143(2) shall be issued by AO making assessment but here was the case where such notice was already issued by AO having jurisdiction and subsequently it was transferred to another AO for making assessment. It was also correct on record that the assessee did not challenge jurisdiction of AO and constantly filed return with AO having jurisdiction, whereas, such notice was already sent under section 143(2) to assessee, thereafter no further re-issuance of notice was required. Legislative intent becomes clear with reading to section 127(3) and section 127(4) that while section 127(3) makes right to be heard dispensed with if the case transferred from one AO to another in same city, place or locality and assessee has agreed these facts. That section 127(4) is clear that re-issuance of notice already issued by AO having jurisdiction and subsequently transferred to another AO shall not be required. Considering the legislative intent as enshrined in the provision of sections 127(3) and section 127(4), there crept in mistake apparent from record in the order of Tribunal and thus, same was recalled.
Distinguished:Asstt. CIT & Anr. v. Hotel Blue Moon (2010) 321 ITR 362 (SC) : 2010 TaxPub(DT) 1434 (SC). Referred: Peter Vaz v. CIT [Tax Appeal No.19, 21, 22, 23, 24 and 25 of 2017] : 2021 TaxPub(DT) 2156 (Bom-HC), Abhishek Jain v. Income Tax Officer & Anr. & Anr. (2018) 94 Taxmann.com 355 (Del) : 2018 TaxPub(DT) 3029 (Del-HC), CIT v. Lalitkumar Bardia, Prop. Aditya Jewellers [Income Tax Appeal No.127 of 2006 dt. 11-7-2017] : 2017 TaxPub(DT) 2052 (Bom-HC), Pr. CIT v. Mega Corporation Ltd. [ITA 128/2016, dt. 23-2-2017], Pr. CIT v. Atlanta Capital Pvt. Ltd. [ITA 665-666/2015, dt. 21-9-2015], CIT v. Shyam Sunder Infrastructure (P) Ltd. [ITA 236/2014, dt. 4-2-2015], CIT v. SS. Ahluwalia (2014) 225 Taxman 131 (Delhi) : 2014 TaxPub(DT) 1647 (Del-HC), Dholadhar Investment Pvt. Ltd. v. CIT 2014 TaxPub(DT) 1698 (Del-HC), Hindustan Transport Co. v. Inspecting Assistant CIT & Anr. (1991) 189 ITR 326 (All) : 1991 TaxPub(DT) 0056 (All-HC) and Veerendra Gurulingappa Mangalge v. Income Tax Officer [ITA No.695/PUN/2019, dt. 6-8-2019]
REFERRED :
FAVOUR : Against the assessee
A.Y. :
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