THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “C” DELHI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT (THIRD MEMBER), MS. MADHUMITA ROY, JUDICIAL MEMBER &

SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER ITA No. 7444/Del/2018 (Assessment Year: 2015-16)

Kusum Dube Vs. ITO Ward 2(3)

C/o Kapil Goel Adv. Gurgaon, Income Tax F-26/124 Sector 7, Rohini Department, Phase V, Delhi - 110085 Udyog Vihar, Sector 19, Gurugram, Haryana

122016 Haryana (cid:1)थायीलेखासं./जीआइआरसं./PAN/GIR No: AEWPD9787R Appellant .. Respondent Appellant by : Dr. Kapil Goel, Adv.

Respondent by : Sh. Om Prakash, Sr. DR Date of Hearing 14.08.2025 Date of Pronouncement 14.08.2025

ORDER

PER MADHUMITA ROY, JM:

The instant appeal filed by the assessee is directed against the order dated 04.09.2018 passed by the Learned CIT(A), Gurgaon arising out of the order passed under 143(3) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) dated 22.08.2017 by the ITO, Ward 2(3), Gurgaon whereby and where under the assessee has been granted part relief on account of claim under Section 54F of the Act to the extent of Rs.15,63,566/- out of the disallowance made by the Ld. AO of Rs.105,67,271/- for Assessment Year 2015-

16.

2. The brief facts leading to the case are that the assessee filed its return of income on 26.07.2015 declaring total income of Rs.66,070/- at Dibrugarh. The case was selected for scrutiny under CASS and notice under Section 143(2) was issued by the ITO, Dibrugarh. Subsequently, the case was transferred on request made by the assessee to the jurisdictional AO of Gurgaon and the file was received on transfer by office letter issued by ITO, Ward 1(4) Dibrugarh dated 29.03.2017. Notice under Section 142(1) was issued on 05.06.2017 requiring the assessee to file information relating to the claim of deduction under Section 54F of the Act whereupon the copy of the purchase and sale deeds of the property were furnished. The said assessment was finalized by the Ld. AO upon making addition of Rs.105,67,271/- on account of long term capital gain rejecting the claim under Section 54F of the Act. The Ld.CIT(A) restricted the said addition to the tune of Rs.15,63,566/-. 3. The case of the assessee before us is this that the order passed by the Ld. AO being ITO, Ward -2(3), Gurgaon under Section 143(3) is without appreciating the fact that the said AO never issued any notice under Section 143(2) of the Act and the assessment has been finalized on the basis of the notice issued by the non-jurisdictional officer i.e ITO, Dibrugarh which is non-est in the eyes of law. It was further argued by him that the order sheet dated 29.03.2017 categorically stated that ‘as per request of the assessee the assessment records are transferred to ITO, Ward-2(3), Gurgaon since, the current jurisdiction lies there’. Further that the Ld. CIT(A) erred in sustaining the order passed by the Ld. AO without appreciating the fact that Section 2(7A) of the Act clearly defines Assessing Officer and nowhere in the present case of the assessee, the jurisdictional ITO, Ward-2(3) Gurgaon issued valid notice under Section 143(2) of the Act and therefore, the entire assessment is void-ab-initio and thus liable to be quashed as was the crux of the submissions made by the Ld. AR.

4. At the time of hearing of the matter, the Ld. A.R also submitted before us that the issue is squarely covered on identical facts in the case of Ms. Ekta Gupa in ITA No. 3821/Del/2019 for A.Y. 2015-16 by the Coordinate Bench, a copy whereof has also been filed before us. We note that submission made by the Ld. A.R has not been able to be controverted by the Ld. D.R. However, it was submitted by him that since on request made by the assessee the case has been transferred to Gurgaon, there is no requirement of issuing notice under Section 143(2) of the Act by the AO of Gurgaon which in our considered opinion is not acceptable.

5. Keeping in mind the facts mentioned hereinabove, we have considered the judgment passed by the Coordinate B