Thr Hon’ble Mr. Justice Ravi v. Hosmani

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15 DAY OF SEPTEMBER, 2021 PRESENT THR HON’BLE MRS.JUSTICEK S.SUJATHA ANT) THR HON’BLE MR. JUSTICE RAVI V. HOSMANI I.T.A.No.441/2014 c/w 1.T.A.No.509/2014,I.T.A.No.510/2014, I.T.A.No.512/2014, I.T.A.No.513/2014, I.T.A.No.514/2014 &.I.T.A.No.515/2014 IN I.T.A.No.441/2014: BETWEEN : M/s HIMALAYA DRUG COMPANYMAKALI, TUMKUR ROAD,|BANGALORE-562123,(REP BY ITS CHIEF FINANCIAL OFFICER,Ms. JAYASHREE ULLALL,D/O SRI DAYANANDA ULLALAGED ABOUT 39 YEARS)_. APPELLANT (BY SRI K.K.CHYTHANYA, ADV.) AND : THERE DEPUTLY COMMISSIONER OINCOME TAX, CENTRAL CIRCLE-1(1), C.R.BUILDING, QUEEN’S ROAD,BANGALORE -560001._. RESPONDENT. (BY SRI K.V.ARAVIND, ADV.) THIS INCOME TAX APPEAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 13.06.2014 PASSED IN ITA NO.16034-1639/BANG/2012, -2-. FOR THE ASSESSMENT YEAR 2003-04, 2004-05, 2005-06, 2006-O07, 2007-08 AND 2008-09 PRAYING TO 1. FORMULATE THESUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. 2. ALLOWTHR APPBAL AND SHIT ASIDE THR ORDBR PASSEBED BY TITAT,BANGALORE‘CIBENCHIN|ITA|NO. 1634TO|1639/BANG/2012.DATED13.06.2014TO|TH EEXTENTPREJUDICIAL TO THERE APPELLANT IN I.T.A.No.509/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE, oO.THERE DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE _ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANY MAKALIL BANGALORE -562123PAN: AADFT 30258PAN: AADFT 30258 _. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 13.06.2014 PASSED IN ITA NO.1634/BANG/2012, FOR:THERE ASSBKSSMEBNT YRBAR JOO3-04 PRAYING TO [. FORMUTHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.ALLOW THR APPBAL AND SBT ASIDE THR ORDERS PASSBD BY)THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN|IT(TP)A NO.1634/BANG/2012 DATED 13.06.2014 AND CONFIRM.THE ORDER OF THR APPELLATE COMMISSIONBR CONFIRMING - 3 -. THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.510/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE, oO.THERE DEPUTLY COMMISSIONER O INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALTBANGALORE -562123PAN: AADFT 30258 _. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 13.06.2014 PASSED IN ITA NO.1635/BANG/2012, FOR:THERE ASSBKBSSMEBNT YRBAR JOO4-05 PRAYING TO [. FORMTHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.|ALLOW THEHK APPEAL AND SEI ASIDE THE ORDERS PASSED BTHE INCOME TAX APPELLATE TRIBUNAL, BANGALORE INIT(TP)A NO.1635/BANG/2012 DATED 13.06.2014 AND CONFIRM)THE ORDER OF THR APPELLATE COMMISSIONBR CONFIRMING - 4 _| THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.512/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE, oO.THERE DEPUTLY COMMISSIONER OINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALTBANGALORE -562123PAN: AADFT 30258 _. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) - 4 _| THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.512/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE, oO.THERE DEPUTLY COMMISSIONER OINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALTBANGALORE -562123PAN: AADFT 30258 _. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 13.06.2014 PASSED IN ITA NO.1636/BANG/2012, FOR:THERE ASSBKBSSMEBNT YRBAR YJOO5-06 PRAYING TO [. FORTHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.|ALLOW THEHK APPEAL AND SEI ASIDE THE ORDERS PASSED BTHE INCOME TAX APPELLATE TRIBUNAL, BANGALORE INIT(TP)A NO.1636/BANG/2012 DATED 13.06.2014 AND CONFIRM)THE ORDER OF THR APPELLATE COMMISSIONBR CONFIRMING -5 -| THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.513/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE oO.THERE DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALT BANGALORE -562123PAN: AADFT 30258_. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|2600-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDERDATED 13.06.2014 PASSED IN ITA NO.1637/BANG/2012, FOR:THRE ASSESSMENT YEKEAR 2OO6-07 PRAYING TO I. FORMULATHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.|ALLOW THR APPBAL AND SBT ASIDE THR ORDERS PASSBD BY)THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN|IT(TP)A NO.1637/BANG/2012 DATED 13.06.2014 AND CONFIRM)THE ORDER OF THR APPELLATE COMMISSIONBR CONFIRMING -6 -| THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.514/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE oO.THERE DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALT BANGALORE -562123PAN: AADFT 30258_. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|2600-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDERDATED 13.06.2014 PASSED IN ITA NO.1638/BANG/2012, FOR:THR ASSESSMENT YEKEAR 2007-08 PRAYING TO I. FORMULATTHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.|ALLOW THR APPBAL AND SBT ASIDE THR ORDERS PASSBD BY)THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN|IT(TPJ)A NO.1638/BANG/2012 DATED 13.06.2014 AND CONFIRMTHE ORDER OF THR APPELLATE COMMISSIONBR CONFIRMING a a THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.515/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE oO.THERE DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALT BANGALORE -562123PAN: AADFT 30258_. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) a a THR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. IN I.T.A.No.515/2014: BETWEEN : 1.THE COMMISSIONBR OF INCOMB TAXCRHNTRAL CIRCLECRHNTRAL CIRCLE C.R.BUILDING, QUEENS ROAD BANGALORE oO.THERE DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE-1 (1)INCOME TAX, CENTRAL CIRCLE-1 (1) C.R.BUILDING, QUEENS ROAD BANGALORE_ APPBLLANTS| (BY SRI K.V.ARAVIND, ADV.) AND : M/s HIMALAYA DRUG COMPANYMAKALT BANGALORE -562123PAN: AADFT 30258_. RESPONDENT. (BY SRI K.K.CHYTHANYA, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SECTION|260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER|DATED 13.06.2014 PASSED IN ITA NO.1639/BANG/2012, FOR:THERE ASSBKBSSMEBNT YRBAR QJOO8-09 PRAYING TO [. FORTHE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE. II.|ALLOW THR APPBAL AND SBT ASIDE THR ORDERS PASSBD BY)THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE IN|IT(TP)A NO.1639/BANG/2012 DATED 13.06.2014 AND CONFIRM.THERE ORDER OF THE APPELLATE COMMISSIONER CONFIRMINTHR ORDEBR PASSBD BY THR DBPUTY COMMISSIONER OFINCOME TAX, CENTRAL-CIRCLE-1(1), BANGALORE. THESE APPEALS COMING ON FOR HEARING, THIS DAY,|S. SUJATHA, J., DELIVERED THE FOLLOWING: -8 -| JU DBiGMENT ITA No.441/2014 is filed by the assessee undersection 260A of the Income Tax Act, 1961 (‘Act’ forshort) assailing the order dated 13.06.2014 passed inITA Nos.1634-1639/Bang/2012 by the Income TaxAppellate Tribunal, Bengaluru, ‘C’ Bench, Bengaluru(‘Tribunal for short) relating to the Assessment Years2003-04 to JOO8-O9. 2 |ITA No.441/2014 was admitted by thisCourtOT]15.06.2015)TO considerthefollowingsubstantial questions of law: A.Whether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin holding that the directions of Hon’ble DRP arenot barred by limitation?the case, the Honourable ITAT was right in lawin holding that the directions of Hon’ble DRP arenot barred by limitation? B.Whether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin upholding action under section 153C byholding that handing over of assets is notthe case, the Honourable ITAT was right in lawin upholding action under section 153C byholding that handing over of assets is not -9Q-) required for assuming jurisdiction under sectionLT53CPLT53CP C.Whether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin upholding the invocation of section I153Cthough there is no recording of satisfactionwithin the meaning of section 153CP?the case, the Honourable ITAT was right in lawin upholding the invocation of section I153Cthough there is no recording of satisfactionwithin the meaning of section 153CP? DiWhether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin upholding the invocation of section 153C of ITAct though the notice under section 153C hasbeen issued without proper application of mind?|the case, the Honourable ITAT was right in lawin upholding the invocation of section 153C of ITAct though the notice under section 153C hasbeen issued without proper application of mind?| [iWhether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin upholding the action of TPO of reviewing herown order passed under section 92CA(3) and thecorrectness of the remand by the DRP to TPOP|the case, the Honourable ITAT was right in lawin upholding the action of TPO of reviewing herown order passed under section 92CA(3) and thecorrectness of the remand by the DRP to TPOP| FEWhether on the facts and circumstances of the|case, the Honourable ITAT was right in law inupholding the directions issued by the Hon'bleDRP in respect ofAMP expenditure though it did|not form part of the Order of TPO u/s 92CA(S3) ofcase, the Honourable ITAT was right in law inupholding the directions issued by the Hon'bleDRP in respect ofAMP expenditure though it did|not form part of the Order of TPO u/s 92CA(S3) of - 10 -| FEWhether on the facts and circumstances of the|case, the Honourable ITAT was right in law inupholding the directions issued by the Hon'bleDRP in respect ofAMP expenditure though it did|not form part of the Order of TPO u/s 92CA(S3) ofcase, the Honourable ITAT was right in law inupholding the directions issued by the Hon'bleDRP in respect ofAMP expenditure though it did|not form part of the Order of TPO u/s 92CA(S3) of - 10 -| the Act or the draft assessment order passed bythe JCIT u/s 144C(1) of the Act?| FFWhether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in lawin upholding the initiation of proceedings undersection 153C though the requisition proceedingsare invalid?the case, the Honourable ITAT was right in lawin upholding the initiation of proceedings undersection 153C though the requisition proceedingsare invalid? G Whether on the facts and in the circumstances ofthe case, the Honourable ITAT was right in law|in upholding the validity of reference to TPO eventhough no incriminating material was found|during requisition proceedings in respect ofassessment years for which the assessmentproceedings abated?the case, the Honourable ITAT was right in law|in upholding the validity of reference to TPO eventhough no incriminating material was found|during requisition proceedings in respect ofassessment years for which the assessmentproceedings abated? 3.].A.No.1/2020 was filed by the assessee in ITA No.441/2014 for framing additional substantial question of law. 4This Court vide order dated 02.12.2020 was! pleased to pass an order on the said 1.A., relevantportion of which is extracted hereunder: - |] -. “The following additional substantial question|of law shall also be considered at the time offinalhearing of the appeal. “H. Whether on the facts and in|the circumstances of the case, thenotices issued under Section 153C bythe Deputy Commissioner of IncomeTax,CentralCircle,Bengaluru’On11.05.2009 for the Assessment YearsIOQ0OQ3-To YAOQOSB-arewithoutjurisdiction and hence invalid therebyrenderingallthesubsequentproceedings void ab initio?”| 5We have heard the learned counsel for the|parties. The substantial question of law ‘H’ is admitted.| 6. ITA Nos.509/2014, 9510/2014, 9512/20149013/2014, 5914/2014 and 9159/2014 are filed by trevenue challenging the very same order of the Tribunaland the appeals were admitted to consider thesubstantialquestionsot law.framed1nITANo.441/2014. T |Given the circumstances, it would be apt tofirst address the substantial question of law ‘H’ as the -120-. other substantial questions of law would depend uponthe result of this substantial question of law. Hence,first we proceed to consider the substantial question oflaw ‘H’. 8.|Assesse is a partnership firm engaged in thebusinessoT manufactureandsale.ot herbalpharmaceutical products (ayurvedic, medicaments andpreparations), consumer/personal care products andanimal health care products. The assessee filed itsreturn of income which was selected for scrutiny andthe order under Section 143(3) of the Act was passeddisallowing certain expenses and making certainadditions.Assesseepreferredappealsbetorethe|Commissioner of Income Tax |Appeals} which came tobe allowed in part. Being aggrieved by the same, therevenue filed appeals before the Tribunal and assesseefiled cross-objections. The Tribunal allowed the cross-objections of the assessee in part dismissing the revenue’s appeals for the assessment years 2003-04.and 2004-05. Relating to the assessment year 2005-06,the appeal filed by the assessee was pending before theCIT (A). Relating to the assessment years 2006-07 and2007-08, the assessee filed its return of incomedeclaring total income of Rs.Nil. No assessment has—been made prior to requisition proceedings. Relating tothe assessment year 2008-09, return was filed by theassessee declaring the income of Rs. Nil. Notice undersection 143(2) was issued. revenue’s appeals for the assessment years 2003-04.and 2004-05. Relating to the assessment year 2005-06,the appeal filed by the assessee was pending before theCIT (A). Relating to the assessment years 2006-07 and2007-08, the assessee filed its return of incomedeclaring total income of Rs.Nil. No assessment has—been made prior to requisition proceedings. Relating tothe assessment year 2008-09, return was filed by theassessee declaring the income of Rs. Nil. Notice undersection 143(2) was issued. OQ It transpires that Bangalore City Police hasseized the cash of Rs.9.85 crore on 04.08.2008 from theresidence of the searched person, Mr. Hisham SyedTamiz. A warrant of authorisation under Section 132A|was executed by the Director of Income Tax to requisitethe seized cash from Inspector of Police, J.C. NagarPolice Station. The said Inspector was directed tohandover the seized cash to Assistant Director of| - 14 -— IncomeTax|(Investigations),Bangalore,whoWaSauthorized to carry out further investigation. Pursuantto which, enquiry under Section 131 was conducted andstatements of Mr. Meraj Manal, Mr. Shabir Sharif,partner of the assessee - company and Mrs.JayashreeUllal, CFO of the assessee - company were recorded. Itwas explained by them that the seized cash relates topart of proceeds of sale of 7 industrial sheds, out ofwhich 6 sheds were owned by the Himalaya DrugCompany Private Limited and 1 shed was owned by theASSse€ssce - COMpahy. 10.|Based on these statements, notice underSection 153C of the Act was served on the assessee on|11.05.2009. In response to the said notice, the assesseefiled return of income on O1.06.2009 tor the assessmentyears 2003-04 to 2008-09, which has reached upto theTribunal. The Tribunal passed consolidated order dated13.06.2014 by partly allowing the appeal. Being -15-. aggrieved by the extent of the order which is prejudicialto the assessee, these appeals are filed. 11.)Learned counsel for the assessee would|submit that conferring of the jurisdiction on the officerhas come to the notice of the assessee only on noticingthe date mentioned in the assessment order of |Mr. Hisham Syed Tamiz and further got confirmed onthe information secured by the assessee to theapplication made under the provisions of the Right toIntormationAct, 2005as|pertheletterdated29.09.2013 issued by the Assistant Commissioner ofIncome Tax, Central Circle-I, Bengaluru. Hence, thiseround though not raised before the authorities, theproceedings initiated by the Deputy Commissioner ofIncome Tax being without jurisdiction, the same renders.the further proceedings voidab inttio-as it goes to theroot of the matter. In this regard, catena of judgmentsare cited by the learned counsel. It was further argued the date mentioned in the assessment order of | that Sections 292B and 292BB are not applicable to theinstant case as Section 292B applies only in case ofmistake/defect or omission, whereas Section 292BBdeals with service of notice and not issue of notice. It was further submitted that the bar provided undersection 124(3)(c) of the Act is prospective in nature andthe same is not applicable to the facts of the presentcase. Moreover, the amendment to Section 124 is not)procedural but substantive amendment. 12.Learned counsel for the revenue thoughmade an endeavor to justify the impugned orders butcould not succeed as the reply given by the competentauthority under the provisions of the Right toInformation Act and the order oft transfer could not bedisputed. However, the learned counsel made anattempt to support the impugned orders referring toSections 292B and JO?2BB ot the Act. 13.)We have carefully considered the arguments. of the learned counsel appearing for the parties andperused the material on record. 12.Learned counsel for the revenue thoughmade an endeavor to justify the impugned orders butcould not succeed as the reply given by the competentauthority under the provisions of the Right toInformation Act and the order oft transfer could not bedisputed. However, the learned counsel made anattempt to support the impugned orders referring toSections 292B and JO?2BB ot the Act. 13.)We have carefully considered the arguments. of the learned counsel appearing for the parties andperused the material on record. 14.|As discussed above, an order under Section127(2) of the Act was issued on 20.07.2009 by theCommissioner of Income Tax, Bengaluru, in exercise ofthe powers conferred under sub-section (2) and sub-section (3) of Section 127 transferring the case of theassessee from the Assessing Officer — DCIT, Circle 6(1)to DCIT, Central Circle 1(1) , Bangalore. The said orderspecifies that the said Notification will come into effectfrom 20.07.2009. Notices under Section 153C were|issued by the Deputy Commissioner of Income Tax,Central Circle 1(1), Bangalore on 11.05.2009, muchearlier to conierring jurisdiction on the said officer. Inthe assessment order of the search party — Mr. Hishamsyed Tamiz, it was reflected that consequent to thesearch under Section 132, the said case was centralized to the Circle — Deputy Commissioner of Income Tax,Central Circle-1(1), Bangalore, from ITO Ward 8(2)Bangalore vide order of Commissioner of Income Tax,Bangalore-IV in F.No.6A/Centralization /CIT,IV/200910 dated 20.10.2010. Based on the said intormation|found in the said assessment order, the entire processwas begun to find out the transfer of the file andconferring the jurisdiction on the officer, DCIT, Circle -1(1), Bangalore. 15..Thus, the undisputed facts are that the|assessee’s case was transferred from ACIT, Circle — 6(1),Bengaluru to DCIT, Central Circle, Bengaluru on20.07.2009, as per the order passed under Section127(2) dated 20.07.2009; notices under Section 193Cfor the assessment years under consideration wereissued by the DCIT, Central Circle, Bengaluru on11.05.2009; date of transfer of files from ACIT is19.08.2009. Thus, it isex-facle- apparent that the - 19 -| notices under Section 153C were issued prior totransfer of case and jurisdiction conferred on the DCIT.It is well settled by now that any order passed withoutjurisdiction is invalid. — 16.|At this juncture, it is apt to refer to thejudgment of the Hon'ble Apex Court in the case ofPrincipal Commissioner of Income Tax vs. MaruttSuzuki India Ltd.,reported in(2019) 416 ITR 613(SC)/ wherein, it has been held that the assessment orderpassedagainstthenon-existentCOImpafn1Sasubstantive illegality and not a procedural violation ofthe nature adverted to Section 292B. | 17.In the case ofPrincipal Commissioner of Income-tax vs. Silver Line‘reported in(2016) 383 ITR)455(Detht),the.Hon ’bleHigh|CourtOT Delh1.considering the objections raised by the revenueinasmuch as ITAT permitting the assessee to raise thepoint concerning non-issuance of notice under Section 143(2) of the Act for the first time in the appeal beforethe ITAT, held that it is settled law that the requirementof issuance of such notice is a jurisdictional one, it doesgo to the root of the matter as far as the validity of thereassessment proceedings under Section 147/148 of theAct is concerned. The issue being purely one of law, theIncome Tax Appellate Tribunal was not in error inpermitting the assessee to raise such a point before it. 18.|The Hon’ble High Court of Bombay in thecase oftCommissioner of Income tax-1, Nagpur vs.Lalitktumar Bardireported in(2018) 404 ITR 63(Bombay),while considering the jurisdiction of theAssessing Authority in issuing the notice under Section158BC of the Act has observed that it is the assessingofficer alone who has to serve notice upon the assesseecalling upon him to furnish a return in terms of Section158BC of the Act. Such notice was not issued by theAssessing Officer having jurisdiction. As a consequence, -2l -) 18.|The Hon’ble High Court of Bombay in thecase oftCommissioner of Income tax-1, Nagpur vs.Lalitktumar Bardireported in(2018) 404 ITR 63(Bombay),while considering the jurisdiction of theAssessing Authority in issuing the notice under Section158BC of the Act has observed that it is the assessingofficer alone who has to serve notice upon the assesseecalling upon him to furnish a return in terms of Section158BC of the Act. Such notice was not issued by theAssessing Officer having jurisdiction. As a consequence, -2l -) the notice being without jurisdiction, all the proceedingssubsequent thereto are without authority of law. The relevant factual aspects are discussed in para 13 of thesaid judgment, which is quoted hereunder for readyreference:-. “13. It is undisputed position that therespondent/ assessee was being assessed atRajnandgaon (M.P.). It was as a consequenceof search upon the Motwani group at Nagpur|that a search was carried on upon theRespondent/Assessee. In view of the above,the Commissioner of Income Tax, Raipur for|facilitatingdetailedandcoordinatedinvestigation, passed an order on 6.7.1999,|under Section 127 of the Act transferring the|respondent/ assessee’sCaASefromRajnangaon to Nagpur. However, the Orderdated 6.7.1999 of the Commissioner of|Income Tax, Nagpur was quashed and set.aside on 17.9.1999 by the Hon’ble M.P. High|Court. The notice u/s.158BC of the Act was|issued on 22.9.1999 1.e., after the order of|transfer dated 6.7.1999, u/s.127 of the Act| - 29 -| was quashed and set aside. Thus, it ceased|to exist. Consequently, on 22.9.1999, when|the Deputy Commissioner of Income Tax,|Nagpur ceased to have jurisdiction to assess.the Respondent/Assessee as there was no.orderof|transferof|the|respondent/ assessee’s case to Nagpur. In|terms of Section 2(7A) of the Act, theAssessing Officer means ‘an Officer of theIncome Tax vested with Jurisdiction either byvirtue of Section 120 or any other provision of theAct’.Admittedly,theDeputyCommissioner of Income Tax, Nagpur does|not|havejurisdictionOVECTthe|respondent/ assessee by virtue of Section 120of the Act. However, the claim ofJurisdiction|as|FTAssessingOfficerOVECTrespondent/assessee is the Order dated6.7.1999 which has been passed u/s.127 of|the Act, while issuing notice on 22.9.19949,under Section 158BC of the Act. But, as the|Order dt.6.7.1999 under Section 127 of the|Act by the Commissioner of Income Tax,Raipur was set aside before issuing of notice, the Deputy Commissioner of Income Tax,| -293 -) Nagpurceased.tO betheRespondent/ Assessee’s Assessing Officer. In|the result, the notice dated 22.9.1999 issued|u/s.158BC of the Act was issued by the|Deputy Commissioner of Income Tax, who.WAaSnot.the|AssessingOfficerof|the|respondent/assessee. It is the Assessing|Officer alone who has to serve notice upon the|assessee calling upon him to furnish a return|in terms of Section 158BC of the Act. This|notice the Deputy Commissioner of Income|Tax could not tissue as, on 22.9.1999, he wasnot the Assessing Officer. As a consequence,the notice being without jurisdiction, all the|proceedings subsequent thereto are withoutauthority of law.” This judgment was challenged by the revenue before the Hon'ble Apex Court which came to bedismissed. We find no reason to take a different view. | 19.|Thus, it is well established that the noticeissued by the DCIT Circle 1(1), Bangalore, is withoutjurisdiction and as such, all further proceedings would - O24 - render voidab tintti. The arguments of the learned|counsel for the revenue with respect to Sections 292Band 292BB do not merit any consideration. AQ.As held by the Hon'ble Apex Court in thecase otMaruti Suzuki India Ltd.,supra, the noticeissued without jurisdiction is a substantive illegalityand not a procedural violation of the nature adverted toin Sections VOQOB and 2YOVOBB which deals’ wmistake /defect or service of notice. 21.)Section124(3)(c)WaSinsertedbythe. Finance Act 2016 with effect from 01.06.2016 which|reads thus: before the Hon'ble Apex Court which came to bedismissed. We find no reason to take a different view. | 19.|Thus, it is well established that the noticeissued by the DCIT Circle 1(1), Bangalore, is withoutjurisdiction and as such, all further proceedings would - O24 - render voidab tintti. The arguments of the learned|counsel for the revenue with respect to Sections 292Band 292BB do not merit any consideration. AQ.As held by the Hon'ble Apex Court in thecase otMaruti Suzuki India Ltd.,supra, the noticeissued without jurisdiction is a substantive illegalityand not a procedural violation of the nature adverted toin Sections VOQOB and 2YOVOBB which deals’ wmistake /defect or service of notice. 21.)Section124(3)(c)WaSinsertedbythe. Finance Act 2016 with effect from 01.06.2016 which|reads thus: “124(3)(c) No person shall be entitled to callin question the jurisdiction of an Assessing|Officer. - (a)XXXXX|(b)XXXXX| (c}where an action has been takenunder section 132 or section 132A,after the expiry of one month from -95 -| the date on which he was servedwith a notice under sub-section (1) ofsection 153A or sub-section (2) ofsection 153C or after the completionof the assessment, whichever isearlier.” DQ?|It is trite that the language employed in theAmendment Act is self — explanatory that the saidamendment has come into effect prospectively from theL[ 8]Day of June, 2016. The intention of the legislature|was made explicit to give effect to the amendment fromL[ 8]Day of June, 2016. This proviso cannot be treated|as declaratory/statutory or curative in nature, the samebeing conscious decision of the legislature. This view isfortified by the judgment of the Hon'ble Apex Court inthe case if.CIT vs. Vatika Townshipt (P.) Ltd.,reported|1n(2014) 367 ITR 466 (SC). -926 -| YO3 HOTtheforegoingTEasOf#s,substantialquestion of law ‘H’ is answered in favour of the assesseeand against revenue. D4In view of the substantial question of law ‘H’|having been answered in favour of the assessee, theother substantial questions of law raised by theassessee as well as the revenue would render academic.Hence, keeping open the said substantial questions oflaw, we allow the appeal filed by the assessee,dismissing the appeals filed by the revenue. 5.|Hence, we pass the following © ORDER 1)ITA No.441/2014 filed by the assessee is_allowed. — 11)The substantial question of law ‘H’ is.answered in favour of the assessee and against the revenue. PMR - 227 - 111)In view of the substantial question of law‘H’ having been answered in favour of the.assessee, the other substantial questions.of law raised by the assessee as well as_the revenue would render academic. IV) ITA Nos.509/2014, 510/2014, 512/2014, 0913/2014, 5914/2014 and 9159/2014 fil by the revenue are dismissed. Sd/-.JUDGE. Sd/-.JUDGE.