2018 (5) TMI 1265 - HC - Income Tax

Court confirms jurisdiction, allows appeal on interest levy under Section 234B(1) but upholds inclusion of allowances.

J. Aditya Rao Versus The Assistant Commissioner of Income Tax, Hyderabad

The court upheld the jurisdiction of the Mumbai Assessing Officer and the validity of the case transfer to Hyderabad. It confirmed the inclusion of ... Reopening of assessment - Jurisdiction of the Assessing Officer at Mumbai to initiate proceedings under Sections 147 and 148 - Held that:- Plea of assessee that jurisdiction of the Assessing Officer at Mumbai was that as he has not filed returns and was not assessed at Mumbai, the Assessing Officer concerned at Mumbai had no jurisdiction is wholly without any merit. The jurisdiction of an Assessing Officer does not depend upon the fact whether a person had filed his returns or not. It depends upon the territorial area, the person or classes of persons, income or classes of income and cases or classes of cases, with reference to which the jurisdiction is conferred on the Competent Authority concerned as per Section 120(3) read with Section 124 of the Act. In this view of the matter, we do not find any merit in this submission of the assessee. Whether transfer of the case on the ground of purported non-compliance of Section 127(2)(a) of the Act, is bad? - Held that:- Both the requirements of prior notice and recording of the reasons before passing the order of transfer were envisaged to enable the party likely to be affected by such transfer to submit his objections. If the assessee had any such sustainable objection, he is expected to have raised the same before the Assessing Officer at Hyderabad after the transfer of the case. From the fact that the assessee has not raised any such objection would clearly show that he had no grievance against the transfer as such. Indeed, the assessee objected to the jurisdiction exercised by the Assessing Officer at Mumbai on the ground that he was being assessed at Hyderabad. Transfer of the case to Hyderabad is obviously in tune with his objection, which appears to be the reason why the assessee has not raised any objection on the transfer. The assessee has also not pleaded any prejudice on account of transfer or purported absence of reasons for such transfer. For the aforementioned reasons, we reject this submission of the assessee as well. Levy of interest under Section 234B(1) - Held that:- Assessee, whose income tax is liable to be deducted at source, is not liable to pay advance tax under Section 208 of the Act and consequently, he is not liable to pay interest under Section 234B(1) thereof. See Maersk Co.Ltd [2011 (4) TMI 886 - UTTARKHAND HIGH COURT] Issues Involved:1. Jurisdiction of the Assessing Officer at Mumbai to initiate proceedings under Sections 147 and 148 of the Income Tax Act.2. Validity of the transfer of the case from Mumbai to Hyderabad without compliance with Section 127(2)(a) of the Act.3. Correctness of the quantum of allowances included under the taxable income.4. Legitimacy of charging interest under Section 234B(1) of the Act.Detailed Analysis:1. Jurisdiction of the Assessing Officer at Mumbai:The assessee, a pilot employed by Indian Airlines and residing in Mumbai, was issued a notice under Section 148 by the Income Tax Officer, Ward 11(3), Mumbai. The assessee contended that the Mumbai officer lacked jurisdiction as his returns were filed in Hyderabad. The court clarified that jurisdiction under Section 120(3) read with Section 124 of the Act is based on territorial area, persons, income, and cases, not on where returns were filed. The court found no merit in the assessee's claim, affirming that the Mumbai officer had jurisdiction since the assessee resided and worked in Mumbai.2. Validity of Case Transfer Without Compliance with Section 127(2)(a):The assessee did not object to the transfer from Mumbai to Hyderabad before the Assessing Officer or in appeals. The court noted that objections regarding non-issue of notice and non-recording of reasons for transfer should have been raised earlier. These are mixed questions of fact and law, and raising them for the first time in the High Court is impermissible. The court emphasized that the assessee's appearance before the Hyderabad officer and lack of objections indicated no prejudice from the transfer. Consequently, the court rejected the assessee's submission on this ground.3. Correctness of the Quantum of Allowances Included Under Taxable Income:The assessee challenged the inclusion of certain allowances in his taxable income. However, the court did not find substantial grounds to interfere with the findings of the Assessing Officer, Commissioner of Income Tax (Appeals), and the Tribunal. The court upheld the inclusion of the allowances as part of the taxable income.4. Legitimacy of Charging Interest Under Section 234B(1):The court referred to precedents, including the Supreme Court's judgment in Ian Peter Morris, which held that an assessee whose income is subject to tax deduction at source (TDS) is not liable for advance tax under Section 208 and, consequently, not liable for interest under Section 234B(1). The court concluded that since the assessee was a salaried employee with TDS applicable, the levy of interest under Section 234B(1) was unsustainable. Thus, the court set aside the orders imposing interest under Section 234B(1).Conclusion:The court upheld the jurisdiction of the Mumbai Assessing Officer and the validity of the case transfer to Hyderabad. It confirmed the inclusion of allowances in the taxable income but set aside the levy of interest under Section 234B(1) for the additional tax. The appeals were allowed to the extent of interest levy, while the rest of the Tribunal's order was affirmed.