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20-12-2019, Harish K.S., Section 282, 144, 139, Tribunal Bangalore

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10 months 2 days ago #11826 by amit
Section - 282, 144, 139, 153(1)(b)
Order Date - 20-12-2019
Favouring - Revenue
Court - Tribunal Bangalore
Appellant - Harish K.S.
Respondent - ITO
Citation - 1219Taxpundit214
Appeal No. - ITA No.1299/Bang/2019
Asstt. Year - 2009-10



This is an appeal by the Assessee against the order dated 27.03.2019 of CIT(Appeals), Davangere, relating to assessment year 2009-10.

2. The Assessee is an individual. He carries on the business of running a petrol bunk. He filed return of income for AY 2009-10 on 5.10.2009 with the Income-Tax Officer (ITO), Ward-3, Davangere. Till 2008-09, the Assessee was filing return of income with ITO, Ward-2, Shimoga and the PAN (Permanent Account Number) of the Assessee was lying with ITO, Ward-2, Shimoga. Since was PAN was lying with ITO, Ward-2, Shimoga, notice dated 25.8.2010 u/s.143(2) of the Income Tax Act, 1961 (Act) was issued by the ITO, Ward-2, Shimoga. Another notice dated 17.1.2011 u/s.142(1) was issued by the ITO, Ward-2, Shimoga. A third notice dated 31.5.2011 was also issued by the ITO, Ward-2, Shimoga calling for particulars with regard to the return of income filed by the Assessee. In response to this letter, the Assessee filed a letter dated 31.5.2011 before ITO, Ward-2, Shimoga stating that the return of income was filed before ITO, Ward-3, Davanagere and he alone would have jurisdiction. Thereafter proceedings were transferred to ITO, Ward-3, Davangere.

3. Thereafter the ITO, Ward-3, Davangere, issued a notice dated 25.7.2011 u/s.142(1) of the Act calling for some details from the Assessee. To the said letter, the Assessee by a letter dated 24.8.2011 submitted that notice u/s.143(2) of the Act is required to be issued prior to framing an assessment u/s.143(3) of the Act. By letter dated 26.8.2011, the AO informed the Assessee that notice u/s.143(2) of the Act dated 25.8.2010 was already issued by the ITO, Ward-2 Shimoga and called upon the Assessee to comply with the requirements mentioned in notice u/s.142(1) of the Act dated 25.7.2011 and that if the Assessee fails to do so, the assessment will be completed u/s.144 of the Act ex parte to the best of AO’s judgment. To this notice, the Assessee again sent a letter dated 5.9.2011 taking a stand that notice u/s.143(2) of the Act issued by the ITO, Ward-2, Shimoga was not valid because he was not a predecessor AO of the Assessee and that the return of income had not been filed before him by the Assessee. The AO in reply to the letter dated 5.9.2011 of the Assessee informed the Assessee by his letter dated 25.11.2011 that the notice u/s.143(2) of the Act issued by the ITO, Ward-2, Shimoga dated 25.8.2010 was valid in law and that the objection of the Assessee in this regard was untenable. To this notice the Assessee by reply dated 1.12.2011 and 3.12.2011 informed the AO that the AO i.e., ITO, Ward-3, Davanagere does not have jurisdiction as there is no order from the Chief Commissioner of Income Tax u/s.127 of the Act, transferring the case from ITO, Ward-2, Shimoga to ITO, Ward-3, Davanagere. The AO ITO, Ward-3, Davanagere by his notice u/s.142(1) informed the Assessee that if no reply is received to the points set out in the notice u/s.142(1) of the Act, the proceedings would be concluded ex parte. To this notice again the Assessee sent a reply dated 26.12.2011 stating that the AO does not have jurisdiction and that in the absence of a notice u/s.143(2) of the Act, no assessment can be framed u/s.143(3) of the Act.

4. The AO proceeded to frame an assessment u/s.144 of the Act, observing as follows:-

“8.0 Vide this office letter dated 22.12.2011, following proposal for additions were also put forth to the assessee calling for his objections. For the sake of clarity, the relevant portion of the letter is reproduced here below: Please refer to the above

2.0 Vide your reply dated 01 12.2011 & 03.12.2011, the question of jurisdiction was once again reiterated. However, the said issue has already redressed through this office letters mentioned above. It is once reiterated that, the pre-assessment notice u/s.143(2) was served by Income-tax Officer, Ward-2, Shimoga on 31.08 2010, as laid down in the section 282 of the Income-tax Act, 1961, since the PAN was lying with him. Subsequently, at your instance, the case · was transferred to this ward. Therefore, the proceedings are in order and all objections are disposed off accordingly.

3.0 The assessment in your case is getting barred by limitation on 31.12.2011. As there is no proper compliances to the notices issued, I have no option but to proceed with ex-parte assessment based on the material available on record . It is proposed to make the following additions. In the interest of natural justice, you are hereby given final opportunity to file your objections if any for the proposed additions for which your case is posted for hearing on Monday, the 26th December, 2011 at 11.30AM.

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