Assessment Invalid Where Non-Jurisdictional AO Issued Section 143(2) Notice: ITAT Kolkata

Sanat Kumar Sahana Vs ACIT (ITAT Kolkata)

The Income Tax Appellate Tribunal (ITAT), Kolkata, disposed of two appeals filed by the assessees against identical orders of the Commissioner of Income Tax (Appeals) for Assessment Year 2015-16. Since the issues involved were common, both appeals were heard together and decided through a common order. The Tribunal admitted an additional legal ground challenging the jurisdiction of the Assessing Officer, holding that it involved a pure question of law based on facts already available on record.

The undisputed facts showed that both assessees had filed their returns before the ITO, Ward-23(4), Hooghly, with returned incomes below Rs. 15 lakh. Under CBDT Instruction No. 1/2011 dated 31 January 2011, jurisdiction over non-corporate returns declaring income up to the prescribed monetary limit vested with the Income Tax Officer. The ITO, Ward-23(4), Hooghly issued notices under Section 143(2), but the assessments were ultimately completed by the ACIT, Circle-23(1), Hooghly.

The Tribunal observed that despite being given an opportunity, the Revenue failed to produce any notification, circular or order demonstrating that jurisdiction had been transferred to the ACIT or that concurrent jurisdiction had been conferred under Sections 120(4) or 120(5) of the Income-tax Act. Referring to the statutory provisions of Sections 120 and 124, the Tribunal held that jurisdiction can be exercised only in accordance with directions or notifications issued by the Central Board of Direct Taxes (CBDT). An Assessing Officer can exercise powers only if jurisdiction has been validly vested by the Board.

Relying extensively on its earlier decision in K.A. Wires Ltd., the Tribunal reiterated that only the jurisdictional Assessing Officer is competent to issue the mandatory notice under Section 143(2). It held that if a notice is issued by a non-jurisdictional officer or the assessment is completed by an officer who has not been vested with jurisdiction, the proceedings are without authority of law. The Tribunal further observed that transfer of a file by an officer who never possessed jurisdiction cannot validate an otherwise invalid notice.

The Tribunal also rejected the Revenue’s contention regarding concurrent jurisdiction, noting that no notification or order had been produced to establish that such jurisdiction had been conferred on the ACIT. It referred to several judicial precedents holding that jurisdiction cannot be created by consent, waiver, participation in proceedings or administrative error, and that proceedings initiated by an authority lacking jurisdiction are ab initio void.

The Revenue relied on the Supreme Court’s decision in I-Ven Interactive Limited, but the Tribunal held that the judgment dealt only with the validity of service of notice at the address available in the PAN database and not with the jurisdiction of the Assessing Officer issuing the notice. It observed that the Supreme Court’s ruling concerned service of notice and did not address cases where notices were issued by officers lacking jurisdiction. Accordingly, the Tribunal held that the decision did not assist the Revenue on the issue before it.

The Tribunal further relied on the Supreme Court’s decision in ACIT & Anr. v. Hotel Blue Moon (321 ITR 362) and held that issuance of a valid notice under Section 143(2) by the jurisdictional Assessing Officer is a mandatory statutory requirement. Since the jurisdictional Assessing Officer had not validly completed the assessments and the ACIT had not been shown to possess lawful jurisdiction, the assessment orders were held to be without jurisdiction and bad in law.

Having quashed the assessments on the jurisdictional issue, the Tribunal declined to examine the merits of the additions, observing that doing so would be merely academic. Consequently, both appeals filed by the assessees were allowed.

FULL TEXT OF THE ORDER OF ITAT KOLKATA

Both these appeals filed by the assessee are directed against separate but identical orders of the Learned Commissioner of Income Tax (Appeals) – 6, Kolkata, (hereinafter the “ld.CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 18/07/2019 for Assessment Year 2015-16.

2. As the issues arising in both these appeals are common, they are heard together and disposed off by way of this common order.

3. In both these appeals the assessee has raised a common additional ground of appeal, which reads as follows:-

“1. For that, in the facts and circumstances of the instant case, the Ld. Commissioner of Income Tax (Appeals)-6, Kolkata acted unlawfully in not appreciating that the conditions precedent for framing the assessment order u/s ITA No. 2202/Kol/2019 Assessment Years: 2015-16 Sanat Kumar Sahana ITA No. 2203/Kol/2019 Assessment Years: 2015-16 Dipti Kumar Sahana 143(3) of the Income ax Act, 1961 was not complied with and/or fulfilled by the Ld. Assistant Com missioner of Income Tax, Circle-23(1), Hoog ly in the present case and the assessment order so framed is absolutely ab initio void, ultra vires and null in l w.”

4. The ld. Counsel for t e assessee submitted that this is a legal the jurisdiction of the Asses sing Officer and that all the facts are on re same may be admitted as it is a pure legal ground. The ld. D/R could n that this is a legal issue. Und er these circumstances, we admit this leg the assessee as this goes to relying on the judgment of Power Company Ltd v CIT (1

5. We have heard both the parties on this legal ground of the jurisdiction of the Assessing Officer.

6. The undisputed facts in both the cases is that the jurisdiction f the assessee lies with the ITO, Ward-23(4 , Hooghly. The return of income was filed within his jurisdiction. In both the ca es, in the return of income filed, the gro ss total income is below Rs.15,00,000/- i.e., R .10,07,510/-, in the case of Shri Sanat Ku ar Sahana and Rs. 13,51,310/- in the case of S t. Dipti Sahana.

CBDT Instruction No . 1/2011 [F. No. 187/12/2010-IT(A-I)], dated 31/01/2011, reads as follows:-

“Reference have been received by the Board from a large number of axpayers, especially from mofussil areas, t at the existing monetary limits for assignin cases to ITOs and DCs/ACs is causing ha dship o the taxpayers, as it results in transfer of their cases to a DC/AC who is located in a different station, which increases their cost of compliance. The Board had considered he matter and is of the opinion that the existing limits need to be revised to remove the a bovementioned hardship.

An increase in the mon tary limits is also considered desirable in view of the increase in the scale of trade and industry since 2001, when the present income limit were introduced. It has therefore been decided to increase the monetary limits as under:

Metro charges for the purpose of above instructions shall be Ahm dabad, Banagalore, Chennai, Delhi, Kolkata Hyderabad, Mumbai and Pune.

The above instructions are issued in supersession of the earlier instructions and shall be are issued in supersession of the earlier instructions and shall be applicable with effect f om 1-4-2011.”

6.1. It is clear from the bove circular that the jurisdiction of bo h the assessees is with the ITO, Ward-23(4), Hooghly. The ITO,Ward-23(4), Hooghly, has issued a notice u/s 143(2) of the Act on 29/07/2016 in the case of Smt. Dip i Sahana and on 01/08/2016 in the case of Shri Sanat Sahana, as the jurisdiction lied with him. But the assessment in question in both the cases was completed by the CIT, Circle-23(1), Hooghly. The issue is wheth er the ACIT, Circle-23(1), Hooghly, has jur isdiction to passed the assessment order in que stion or not.

7. The ld. D/R could n ot produce any order or circular to prove that there was change in jurisdiction of t e officers. Despite being given opportunity, he could not demonstrate that the ACIT, Circle-23(1), Hooghly, had jurisdiction.

8. This Bench of the case of Tribunal in K.A. Wires Ltd. vs. ITO in ITA No.1149/Kol/2019, order dt. 22/01/2020, while adjudicating and identical issue on jurisdiction, held as follows:

“6. We have heard rival contentions. On careful consideratio of the facts and circumstances of the case, perusal of the papers on record, orders of th e authorities below as well as case law cite , we hold as follows:-

8. We have heard rival contentions. On careful consideratio of the facts and circumstances of the case, perusal of the papers on record, orders of th e authorities below as well as case law cite , we hold as follows:-

8.1.  Jurisdiction of the Income Tax Authorities is conferred by he Board (Central Board of Direct Tax) u/s. 120(1) & (2) of the LT. Act, 1961. The Section reads as follows:

120. (1) income-tax authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, as the case may be, assigned to such uthorities by or under this Act in accordance with uch directions as the Board m ay issue for the exercise’ of the powers and performance of the functions by all or any of those authorities.

Explana tion. – For the removal of doubts, it is hereby decla red that any income-tax auth ority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a directio issued under sub-section (1).

2. The directions of the Board under sub-section (1) may authorise any other income- ax authority to issue orders in writing for the exercise of the powers and perform ance of the functions by all or any of the other in ome- tax authorities who are subordinate to it.

3. In is uing the directions or orders referred to in sub-sec tions (1) and (2), the Board o other income-tax authority authorised by it may h ave regard to anyone or more of the following criteria, namely:-

(a)  territorial area;

(b)  pers ns or classes of persons;

(c)  inco es or classes of income; and

(d)  case or classes of cases.

(5) The directions and orders referred to in sub-section s (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or no t of the same class) to exercise and perform, concurrently, the powers and functi ns in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and function s are exercised and perform ed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the function s as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule m de thereunder to the Assessin Officer shall be deemed to be references to such higher authority and any pro ision of this Act requiring approval or sanction of any such authority shall not apply.

(6) Not ithstanding anything contained in any direction o r order issued under this sec ion, or in section 124, the Board may, by notifi ation in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person o r class of persons, the income-tax authority exerc sing and performing the pow rs and functions in relation to the said person or cl ss of persons shall be such authority as may be specified in the notification.

 8.2. From a plain reading of the above, it is clear that u/s 120 (1) of the Act, the Income Tax Authorities will have to exercise Acts only in accordance ith the jurisdiction conferred by the Board. U/s 120(3) of the Act, such powers can be con erred by the Board having regard to the territorial area, class of person, income or cla s of the cases. The CBDT under sec. 120(5 of the Act, can also confer jurisdiction on tw or more Assessing Officers (concurrent jurisdiction). The CBDT can also by notification c nfer powers on the authorities for the purpose of assessment as may be notified in the notification. This shows that concurrent jurisdiction can be exercised only when CBDT confers such jurisdiction u/s 120(4) and 120(5) of the Act.

8.3.  In accordance with the powers conferred u/s. 120 (1) and 12 0(2) of the Act, the CBDT issued notificat on on no. 191/2002(F.No.187/9/2002-ITA-1 dated 30.7.2002) whereby the CBDT con erred the jurisdiction by specifying the Design tion of the specific Income Tax Authorities, its Head Quarters, Territorial Area, Persons o r classes of persons and cases or class of ca es.

8.4.  As per the abo e referred notification, the assessee’s being a company, the case fell under the jurisdiction of Commissioner of Income Tax, Kolkata-III, Kolkata vide serial no. 205 of the notification. The jurisdiction of the assessee fell with t e Assessing Officer being ITO ward 8(3), Kolkata, who was under the charge of Commissi ner of Income tax – Kolkata III.

 8.5.  The Authorities under the Income Tax, after the jurisdiction i conferred in them by virtue of notification u/s 120(1) and 120(2) of the Act, have to perform their functions as per sec. 124 of the Ac t. Section 124 of the Act, reads as under:

124. (1) Where by virtue of any direction or order issued un der sub-section (1) or sub-sect on (2) of section 120, the Assessing Officer h s been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction-

(a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and

(b) in respect of any other person residing within the area.

2. Where a question arises under this section as to whether an Assessing Officer has juri diction to assess any person, the question shall b e determined by the Director General or Director General or the Principal Chief ioner or Chief Commissioner or the Princip l Commissioner or ioner; or where the question is one relating o areas within the ion of different Principal Director General or irectors General or l Chief Commissioners or] Chief Commissi ners or Principal ioners or Commissioners, by the Principal Director General or Directors or Principal Chief Commissioners or Chief Commissioners or Principal ioners or] Commissioners concerned or, if they are not in agreement, by d or by such Principal Director General or] Directo General or Principal mmissioner or Chief Commissioner or Principal Commissioner or ioner as the Board may, by notification in the Offici l Gazette, specify.

3. No p erson shall be entitled to call in question the jurisd ction of an Assessing Officer-

(a) where he has made a return under sub-section (1) of sec sub-sect on (1) of section 139, after the expiry of one motion 115WD or under th from the date on which section comple e was served with a notice under sub-section (1) of section 142 or sub-(2) of section 115WE or sub-section (2) of section 143 or after the on of the assessment, whichever is earlier;

(b) where he has made no such return, after the expiry of th e time allowed by the notice u der sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 1 48 for the making ofthe return or first proviso to completed to the best of the judg earlier. by the notice under the first proviso to section 115WF section 144 to show cause why the assessment should not be judgment of the Assessing Officer, whichever is or under the

(c) where an action has been taken under section 132 or section 132A, after the expiry o one month from the date on which he was served with a notice under subsecti n (1) of section 153A or sub-section (2) of secti n 153C or after the complet on of the assessment, whichever is earlier.

4. Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made.

5. Not ithstanding anything contained in this section o in any direction or order iss ued under section 120, every Assessing Officer shall have all the powers conferre d by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders issued under sub­section (1) or sub-section (2) of section 120..

8.6. The clear and unambiguous words used in section 124(1) of the Act, are that the Assessing Officer shoul be vested with the Jurisdiction by virtue of an order, notification or directions issued u/s. 120(1) or u/s. 120(2) of the Act. Therefore, only the Officer who has been vested with th e jurisdiction conferred u/s 120(1) and 120(2 of the Act can actas Assessing Officer and issue notice under sec. 143(2) of the Act, since “he shall have jurisdiction” are the wo rds as has been used in sec. 124(1) of the Act.

8.7. Even though t e Assessing Officer have been vested with the Jurisdiction u/ s. 124(1) of the Act, by the Board, yet the assessee may dispute such jurisdiction vested u/s 124(1) of the Act, in the Assessing Officer. Such dispute can be raise u/s. 124(3) of the Act, within one month of the issue of notice u/s. 143(2) of the Act. This sub section, therefore, clearly stipulates that the assessee can dispute the jurisdict on of the Assessing Officer to issue notice even though such jurisdiction was vested in him by the direction or order issued u/ s. 120(1) or 120(2) of the Act, for some reasons.

8.8. In this case, th jurisdiction of the assessee was never vested with the Assessing Officer, Ward 33(1) , (non corporate assessee ward) who issued notice u/s. 143(2) of the Act. In fact, the assesse also filed return before ITO, Ward-8(3), KoIka ta who was having jurisdiction over the ass essee as per the Boards Notification, which fac is evident from the copy of acknowledgem nts of return of income for the last few years. The notice under sec. 143(2), however, was issued in this case by ITO, Ward 33(1), Kol who has not been vested with the jurisdiction over the assessee company by CBDT.

8.9.Under the scheme of “e” filing of return, the assessee has to fill PAN on the return. It has to also fill its address and some of the details are picked-up b the assesse. If the Department’s system f ils to correctly transfer the return to the jurisdictional Assessing Officer and transfer the same to a Assessing Officer though who has n jurisdiction as per the CBDT’s notification such mistake cannot confer the jurisdiction o n such an Assessing Officer. Jurisdiction can be conferred only by notification u/ s 120(1) a d 120(2) of the Act only.

8.10. The Ld DR sub mitted that there was transfer order of the ass essee’s case for the assessment year in que tion, from ITO Ward 33(1) to ITO Ward 8(3). here can be a valid transfer order from ITO Ward 33(1) only if he was vested with the j risdiction over the assessee. As he was never vested with the jurisdiction either by the notification of the CBDT or by any order of the Commissioner of Income tax earlier to the issue of notice u/ s 143(2) of the Act, he could not have validly transferred the case to ITO, Ward-8(3), Kolkata. The file/case was restored to its jurisdictional area. When the said ITO Ward 33(1) was not having valid jurisdiction at the time of issue of notice u/ s 143(2) of the Act, then the notice is bad i law. The transfer of the folder from ITO Ward 33(1) to ITO Ward 8(3) in fact establishes that the revenue realised that the ITO Ward 33(1) had no jurisdiction.

8.11. The Ld DR also concurrent jurisdiction order or notification u to the ITO Ward 33(1) which is the condition raised the issue that u/s 120(4) and 124(5) of the Act, there can be . There is no dispute over that. However ther is no direction or s 120(1) or 120(2) of the Act, conferring concurrent jurisdiction along with ITO Ward 8(3) u/ s 120(1) or u/ 120(2) of the Act, ct.

8.12. The Ld DR for the purpose of his submission also read out para 19 of the decision of ITAT in the case of R ungata Irrigation in ITA No 1224/K/2019 date 6.9.2019. The said decisions is in favour of the assessee. The Ld CIT(DR) has relied on par 19 which is in fact in favour the assessee. The Tribunal has fully analyzed the entire provisions of section 120, 124 and 127 of th e Act, in para 13, 14,15,17, 18, 21 of the order with regard to the issue of vesting of jurisdiction and transfer etc and held that the issu e of notice by non-jurisdictional AO was b ad in law and without jurisdiction.

8.13. The Ld DR argu the Act and hence by  forever. This would h ed that the assessee did not dispute the jurisdiction u/ s 124(3) of jurisdiction over the assessee. This is not the case. When an autho rity does not have jurisdiction, then the ac t done by such authority is bad in law and is void ab-initio

8.14. This issue came up for consideration in the following cases:

i. Rungta Irrigation Ltd. referred to above with relevan t paragraphs and paragraph 36.

ii. Smriti Kedi Calcutta High Court 339 ITR page 37

iii. Indorama Software Solutions Ltd. Mumbai Bench I TA No. 5211 and 5290(Mum) of 011 dated 7.9.2012

8.15. In the case of Mahalchand Motilal Kothari & Co (ITA No. 1851/1852/Kolj2002, ITAT, D-Bench, Kol da ted 28.7.2006 wherein the Tribunal considered the notification dated 30.7.2002 and held that after issue of the notification the Assess ng Officer who was earlier vested the jurisdiction lost the jurisdiction and even though the order of the CIT(A) was received by him at the time when he was having jurisdiction, yet the Assessing Officer who has been divested f the jurisdiction on 30.7.2002 cannot file the appeal after the said date. In that case even he authorization was also granted for filing th appeal by the CIT-XIII, Kolkata who los the jurisdiction after the notification. In that case after the dismissal of the appea l of the Department by the Tribunal on the aforesaid ground of jurisdiction, the Revenue filed an appeal before the Hon’ble High Court but the same was dismissed. The Revenu thereafter came up with condonation petitio n and a filed fresh appeal before the ITAT but the same was also dismissed in I TA No. 1768 and 1769/Kol/2006, B-Ben ch on 15.9.2014. The Revenue filed an appeal before the Hon’ble High Court which was dismissed with the following observations:

“The appeal carried by theACIT-39 to the Appel ate Tribunal was dismiss d as not competent. The order of the Appellate Tribunal was challen ed by the Revenue in this Court. This Court di not interfere with the order of the Tribunal and the matter rested there without this Court’s order being challenged by the Revenue before the Su reme Court. In the present case, the matter pertains to the same assessment year when the ITO-44 has preferred an appeal where the initial asses ment was not done by the TO-44 but such assessment ‘was conducted by the ACIT-39 at a point o time when AC1T-39 lost jurisdiction over the assessee pursuant to the said CBOT Notification 2002

Since th ere was a fundamental error, the Appellate Tribunal dismissed theappeal as incompetent since the order of the Assessing Officer who had no jurisdic tion to undertake the assessment qua the assessee could never have been found to be legal or resurrected.”

8.16. While deciding the issue in the case of Mahalchand Motilal Ko thari & Co., (supra) the ITAT relied on the Judgement of Calcutta High Court in the case of “West Bengal State Electricity Board” 278 ITR 218. In that case the Hon’ble Calcutta High Court held that jurisdiction cannot be conferred by default or by agreement and the decision without jurisdiction is a nullity The Hon’ble High Court also relied on a nu ber of Judgements while arriving at such a conclusion.

8.17. The Hon’ble Allahabad High Court in the case of V.P. Electron ics Corporation Ltd in ITA No. 79 of 2015 dated 1.3.2017 has also taken similar view wher in the provisions of sec. 124(3) were also referred to. It was held that when the notice w s not issued by the competent authority, i. an Assessing Officer having jurisdiction, then the assessment is a nullity.

8.18. In the case of eepchand Kothari reported in 171 ITR 381(Raj) it was held that the Assessing Officer w o was having no jurisdiction to initiate the pr ceedings then such proceedings are ab-inti o- void. Further the Hon’ble High Court relyin on the Judgement of the Hon’ble Supreme Court in the case of Kiran Singh Vs Chaman aswan, it was held that the Jurisdictional issue can be taken up at any stage of the proc edings, even at the time of execution of decree.

8.19. The ITAT, Kolkata in the case of Ganesh Reality and Mall in ITA No. 581/Kol/2017 held that if no jurisdiction was conferred on a particular authority the issue of notice or completion of assessment by such authority is ill illegal.

8.20. In the case of P. V. Doshi Vs CIT the Gujarat High Court held th t the jurisdictional issue can be taken up a any stage of the proceedings.

8.21. In the case of R ajmandir Estates (386 ITR 162) the Hon’ble Calcutta High Court held that if the Commissioner Income tax issuing notice u/ s. 263 has ost the Jurisdiction then the notice and order issued by him is a nullity.

8.22. The Lucknow Bench of the ITAT in ITA No. 89 and 90/LKW /20 15 dated 16.4.2015 in the case of Md Rizwan held that notice u/ s 143(2) issued by non-jurisdictional Assessing Officer is a nu llity.

8.23. Same view have been taken a number of other cases some of which are under:-

8.24. The Hon’ble Gujarat High Court in the case of Jolly Fantasy Wo rld Ltd., Tax appeal no. 1254 of 2014,jud ement dated 9.3.2015 held that there ca not be waiver of Jurisdiction, even if the assessee has participated in the proceedings.

8.25. Consent cannot confer jurisdiction and if the notice issued is ithout jurisdiction it is invalid as was held in Resham Petrotech Ltd. ITA O. 2777/ Ahd/20 1 dated 10.2.2012

8.27. The Ld. DR cited the judgement of the Hon’ble Supreme Court in the case of I-Ven Interactive Limited (Civil Appeal No. 8132 of 2019 dated 18.10.2019). This judgement is not on the issue of jurisdiction of the Assessing Officer. In that case, there is no dispute that the Assessing Officer issuing notice had jurisdiction over the assessee. In that case the selection of the return for scrutiny was generated under automated system of the Income Tax Department which picks up the address of the assessee from the PAN database. The notice u/s 143(2) was sent at the assessee’s address available as per the PAN database. Intimation for further hearing and three more notices were sent at the same address as available in the PAN. Finally, the assessee appeared before the tax authority but challenged the notices saying that these notices were not served upon him and that he never received notice u/s 143(2) of the Act and that further subsequent notices served and received by the assessee were beyond the period of limitation prescribed under the law.

The assessee submitted that he changed his address and the new address was mentioned in the return of income filed for subsequent years. The assessee also submitted that he filed Form No. 18 with the Registrar of Companies regarding change of address. No separate intimation was given to the Assessing Officer by the assessee regarding change of address. The Court held that mere mentioning of the new address on subsequent return without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. The Court found that the assessee claimed to have filed a letter for change of address but such letter was never produced before any of the authorities. It was held that on the facts of the case, the notice issued on the address available on the PAN database was proper and valid service of notice u/s 143(2) of the Act.

The Court held that the change of address in the database of PAN is a must, in case of change of the name of the company and/or any change in the registered office of the corporate office of the assessee, and the same has to be intimated to the Registrar of Companies in the prescribed format i.e., Form 18. After completing the said requirement, the assessee is required to approach the Department with the copy of the said document and then make an application for change of address in the departmental database of the PAN. In the present case the assessee has failed to do so.

This judgment is on the issue of service of notice. It is not an issue as to whether the Assessing Officer has jurisdiction over the assessee. As already stated, it is not a case of notice being issued by a non-jurisdictional Assessing Officer. It is therefore clear that the issue before the Hon’ble Supreme Court was not with regard to the jurisdiction of the officer in issuing the notice but was with regard to the service of notice on the proper address. The said judgment therefore does not help the department on this issue of jurisdiction now before us. Jurisdiction has to be conferred u/s 120 of the Act. Any act by an authority without jurisdiction is ab initio void.

8.28. In view of the above discussion, as the Assessing Officer who had jurisdiction over the assessee i.e., ITO Ward-8(3), Kolkata had not issued the notice to the assessee u/s 143(2) of the Act as mandatorily required under the Act, the assessment framed u/s 143(3) of the Act, is bad in law as held by the Hon’ble Supreme Court in the case of ACIT & Anr. Vs. Hotel Blue Moon: 321 ITR 362 (SC). Hence we quash the same.

9. As we have held that the assessment is bad in law, in view of the non-issuance of the statutory notice u/s 143(2) of the Act by the Assessing Officer having jurisdiction over the assessee, we would not go into the merits of the case as it would be an academic exercise.

10. In the result, appeal of the assessee is allowed.

9. Consistent with the uphold the contentions of t cases by the ACIT, Circle-23 same for both the assessme view taken in the above case, as the facts are identical, we e assessee that the assessment orders pa ssed in both these (1), Hooghly, were without jurisdiction. H ence we quash the t years.

10. In the result, both th appeals of the assessee are allowed.

Kol ata, the 29^th day of May, 2020.