May 2023
Reassessment — Notice under section 148 — Jurisdiction — Notice issued by officer who had no jurisdiction over the assessee — Notice defective and invalid — Notice and order rejecting objections of the assessee set aside.
K. B. Bhujle, Advocate
11 Ashok Devichand Jain vs. UOI
[2023] 452 ITR 43 (Bom) A. Y.: 2012-13
Date of order: 8th March, 2022
Sections 147 and 148 of ITA 1961
Reassessment — Notice under section 148 — Jurisdiction — Notice issued by officer who had no jurisdiction over the assessee — Notice defective and invalid — Notice and order rejecting objections of the assessee set aside.
The petitioner assesee filed a writ petition challenging a notice dated 30th March, 2019 issued by the Income Tax Officer under section 148 of the Income-tax Act, 1961 for the A. Y. 2012-13 and an order passed on 18th November, 2019 rejecting the petitioner’s objection to reopening on various grounds.
The Bombay High Court allowed the writ petition and held as under:
“i) The primary ground that has been raised is that the Income-tax Officer who issued the notice u/s. 148 of the Act, had no jurisdiction to issue such notice. According to the petitioner as per CBDT Instruction No. 1 of 2011 dated January 31, 2011, where income declared/returned by any non-corporate assessee is up to Rs. 20 lakhs, then the jurisdiction will be of Income-tax Officer and where the income declared/returned by a non-corporate assessee is above Rs. 20 lakhs, the jurisdiction will be of Deputy Commissioner/Assistant Commissioner.
ii) The petitioner has filed return of income of about Rs. 64,34,663 and therefore, the jurisdiction will be that of Deputy Commissioner/Assistant Commissioner and not Income-tax Officer. Mr. Jain submitted that since notice u/s. 148 of the Act has been issued by the Income-tax Officer, and not by the Deputy Commissioner/Assistant Commissioner that is by a person who did not have any jurisdiction over the petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice.
iii) The notice u/s. 148 of the Income-tax Act, 1961 for reopening the assessment u/s. 147 is a jurisdictional notice and any inherent defect therein is not curable.
iv) On the facts that the notice u/s. 148 having been issued by an Income-tax Officer who had no jurisdiction over the assessee had not been issued validly and without authority in law. The notice and the order rejecting the assessee’s objections were set aside.”
[2023] 452 ITR 43 (Bom) A. Y.: 2012-13
Date of order: 8th March, 2022
Sections 147 and 148 of ITA 1961
Reassessment — Notice under section 148 — Jurisdiction — Notice issued by officer who had no jurisdiction over the assessee — Notice defective and invalid — Notice and order rejecting objections of the assessee set aside.
The petitioner assesee filed a writ petition challenging a notice dated 30th March, 2019 issued by the Income Tax Officer under section 148 of the Income-tax Act, 1961 for the A. Y. 2012-13 and an order passed on 18th November, 2019 rejecting the petitioner’s objection to reopening on various grounds.
The Bombay High Court allowed the writ petition and held as under:
“i) The primary ground that has been raised is that the Income-tax Officer who issued the notice u/s. 148 of the Act, had no jurisdiction to issue such notice. According to the petitioner as per CBDT Instruction No. 1 of 2011 dated January 31, 2011, where income declared/returned by any non-corporate assessee is up to Rs. 20 lakhs, then the jurisdiction will be of Income-tax Officer and where the income declared/returned by a non-corporate assessee is above Rs. 20 lakhs, the jurisdiction will be of Deputy Commissioner/Assistant Commissioner.
ii) The petitioner has filed return of income of about Rs. 64,34,663 and therefore, the jurisdiction will be that of Deputy Commissioner/Assistant Commissioner and not Income-tax Officer. Mr. Jain submitted that since notice u/s. 148 of the Act has been issued by the Income-tax Officer, and not by the Deputy Commissioner/Assistant Commissioner that is by a person who did not have any jurisdiction over the petitioner, such notice was bad on the count of having been issued by an officer who had no authority in law to issue such notice.
iii) The notice u/s. 148 of the Income-tax Act, 1961 for reopening the assessment u/s. 147 is a jurisdictional notice and any inherent defect therein is not curable.
iv) On the facts that the notice u/s. 148 having been issued by an Income-tax Officer who had no jurisdiction over the assessee had not been issued validly and without authority in law. The notice and the order rejecting the assessee’s objections were set aside.”
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