Is it settled position of law that consent does not confer jurisdiction?

The Income Tax Appellate Tribunal (ITAT) in Bangalore has ruled that an assessee's consent does not confer jurisdiction on an Assessing Officer (AO) who lacks it. The tribunal found that the AO who issued the assessment order did not have the proper jurisdiction over the assessee. Despite the Revenue's argument that the assessee participated in proceedings and section 292BB of the Income Tax Act could cure procedural defects, the ITAT followed a Karnataka High Court ruling stating that this section cannot rectify a lack of fundamental jurisdiction. Consequently, the assessment order was quashed.

IN THE INCOME TAX APPELLATE TRIBUNAL
‘A’ BENCH : BANGALORE
BEFORE SHRI. CHANDRA POOJARI, ACCOUNTANT MEMBER
AND
SMT. BEENA PILLAI, JUDICIAL MEMBER

ITA No. 01/Bang/2020
Assessment Year : 2014-15

Smt. Arwa Hararwala,
Flat B-502, Wilson
Apartments,
13th Cross, Wilson Garden,
Bangalore – 560 027.
PAN: ABVPA7712K

vs

The Income tax
Officer,
Ward – 7 (2)(2),
Bangalore.

Assessee by : Shri Ravishankar S.V, Advocate
Revenue by : Shri Sumer Singh Meena, CIT-OSD(DR)

Date of Hearing : 22-10-2021
Date of Pronouncement : 20-12-2021

ORDER

Present appeal is filed by assessee against order dated 28.10.2019 passed by Ld.CIT(A)-10, Bangalore on following grounds of appeal.

2. The assessee is an individual and is proprietrix of M/s.Hydromatic Engineering Company, dealing in pipe fitting, valves and automation products. She filed return of income for AY 2014-15 on 01.10.2014, declaring total income of Rs.16,79,980/-. The case was taken up for a scrutiny. It is submitted that, assessee was regularly filing her return of income and was assessed with its Income Tax Officer, Ward – 7(2)(2), Bangalore.

3. On the contrary, the Ld.CIT.DR submitted that assessee participated in the assessment proceedings and that no prejudice is caused. He took support of provisions of section 292BB of the Act and submitted that the procedural defect gets cured.

4. It is pertinent to note that assessee filed additional evidence before Ld.CIT(A) which was forwarded for the remand report to the file of AO, Ward-7(2)(2) for comments. However, the remand report has been provided by the DCIT, Circle – 5 (2)(1). On query being raised by the bench, the Ld.AR submitted that ITO, Ward – 5 and ITO, Ward – 7 were possessing jurisdiction over assessee since assessee was running her business at pincode – 560002 and residing at pincode – 560027 respectively.

5. In the present case, admittedly, no notice u/s. 143(2) was issued by the AO having jurisdiction over assessee either prior to the assessment proceedings or during the assessment proceedings. We place reliance on the decision of Hon’ble Karnataka High Court in the case of Nittu Vasanth Kumar Mahes vs. ACIT reported in (2019) Taxman 277 (Karnataka) wherein Hon’ble Court took similar view. Hon’ble Court also held that provisions of section 292BB of the Act cannot cure such defect.

6. As we have quashed the assessment order, the issues raised by assessee on merits becomes academic in nature and hence does not require any adjudication at this juncture. In the result, the appeal filed by the assessee stands allowed on the legal issue raised. Order pronounced in the open court on 20th December, 2021.

 Please find attached the enclosed file for the full judgement