TaxTMI 
TaxTMI 
2012 (5) TMI 598
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....ready assessed by ITO Ward-32(2), New Delhi and ACIT Noida has no jurisdiction to issue these notices u/s 147/148 and the subsequent transfer of jurisdiction dated 9-3-2004, is in contravention of Sec. 127, as statutory opportunity of hearing was not given to assessee. These issues have been raised by following grounds: "On the facts and circumstances of the case the learned CIT(A) has erred:- 1. In confirming the order of the ACIT Circle Noida passed u/s 144/147 who lacked jurisdiction to issue notice u/s 148 dated 27-3-2003 for A.Y. 1996-97 to 2001-02 & 31-3-2003 for A.Y. 2002-03 and subsequent proceedings u/s 142(1) in pursuance thereto, before the transfer of jurisdiction over the assessee from Delhi to Noida w.e.f. 9-3-2004, thus making the order of reassessment passed by the AO Noida illegal/ ab initio void, as no notices u/s 148 were issued to the assessees after 9- 3-2004 when the jurisdiction over the assessee's case was transferred from ITO Ward 33(2) to ACIT Noida. 2. In ignoring the Chief Commissioner of Income tax Meerut letter dated 3-3-2004 regarding the jurisdiction status of the assessee in Delhi & the need to get the jurisdiction transferred over the ....
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....ssesse Address From To Shri Deepak Gupta 205, Kamal Plaza Building Karol Bagh, New Delhi. ITO Ward-, 33(2), New Delhi ACIT, Noida. This order has been passed for coordinated post search assessment with immediate effect. Sd/- (Commissioner of Income Tax) Delhi-XI, New Delhi. 3.1. A perusal of the order u/s 127(2) and record clearly reveals that: (i) It has not been disputed by department that prescribed opportunity of hearing before transfer was not given to assessee. (ii) Even if unsustainable transfer is assumed to be correct then the jurisdiction was vested in ACIT, Noida w.e.f. 19-3-2004. Notice u/s 147/148 were issued prior to that date i.e. 9-3-2003 & 31-3- 2003 (AY 2202-03) (iii) From the address given in the order it is clearly revealed that Shri Deepak Gupta was assessed by ITO, Delhi with residential address at Karol Bagh, Delhi. This order has not been disputed by the department. (iv) Therefore, a plain perusal of this order clearly reveals that prior to 9-3-2004 assessee was assessed by ITO, Ward-33(2), New Delhi. 3.2. These impugned 148 notices in this case were issued by ....
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....- Jurisdiction- Proposal for transfer of records of M/s Auram Jewellery Export Pvt. Ltd., 167, NEPZ, Noida and Sh. Deepak Gupta & Smt. Urmila Gupta -Reg. Kindly refer to your letter dated 20-01-2004 and the queries raised by this office dated 25-01-2004 to ACIT, Noida. In this regard, I am directed to convey the following:- ACIT, Noida assumed jurisdiction over M/s Aurum Jewellery Export Pvt. Ltd., 167, NEPZ Noida by virtue of issue of notice u/s 148 dated 27-03-2002 for A.Y. 95-96. Thereafter in case of Mr. Deepak Gupta notice u/s 148 for the A.Y. 1996-97 to 2001-02 and notice u/s 142(1) for A.Y. 2002- 03 were issued on 27-3-2003 and in the case of Smt. Urmila Gupta also notice u/s 142(1) for the A.Y. 2002-03 was issued on 27-03-2003. from the perusal of the record it is seen that these notices were served by affixture and there was no regular service of notices. However prior to this, as reported by ACIT Noida, Sh. Deepak Gupta and Smt. Urmila Gupta have been filing returns regularly in the respective wards at Delhi. The information in this regard was communicated to ACIT, Noida and the same is as follows: Name of the Assessee A.Y. Date of filing the re....
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.... impugned ex parte assessments on 22-3-2004 in the case of Deepak Gupta and on 29-3- 2005 in the case of Smt. Alka Tiwari. 3.10. Thus all the 148 notices issued on the assessee are prior to the date of the purported transfer of jurisdiction and ab initio void and ACIT Noida had no jurisdiction to issue such notices u/s 148 and frame the impugned ex parte assessments. Consequently, all these notices and assessments being bad in law ab initio void deserve to be quashed. In this backdrop ld. counsel contends that assessee was filing his return of income for following years with ITO Delhi. S.No. Asstt. Yr. Date of filing of return in Delhi. 1. 1993-94 28-3-1994 2. 1994-95 18-2-1995 3. 1995-96 15-11-95 4. 1996-97 17-1-1997 5. 1997-98 22-2-1998 6. 2000-01 26-9-2000 7. 2001-02 20-9-2001 8. 2002-03 10-9-2002. 3.11. The assessee was consecutively assessed at Delhi for number of years, is demonstrated by these undisputed facts. Unfortunately sort of dispute erupted between assessee and one high rank officer of the Income-tax Department Shri Bani Singh S/o Ram Lal. Due to impending disputes office....
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....epartment and also release the seized properties. Respected Sir, In reference to the above captioned matter, I wish to state that my account of the Citizen Bank, Noida was seized and further issued a noticed under section 148 to the Income tax Act, in which you have asked for copy of Income tax return and various other details. In compliance of that notice I provided the copy of the Income Tax Return duly filed at Delhi in Ward no. 33(2) with a request that since I am filing my income tax return at Delhi regularly therefore, transfer my case to Delhi income tax department. On subsequent hearing you informed to my counsel that you have sent your recommendations to transfer the case from Noida to Delhi for approval of commissioner of income tax but till date I have not received any information regarding that. As per the Law of Income Tax Act prevailing in India, the assessee has to file the Income Tax Return at one place and the department has to assess him at that place only. According to this also the assessment of my case should be done by the Assessing Officer of Ward no. 33(2), where I am regularly filing my Income tax return. Since I am filing my income tax retur....
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....ction of AO, Delhi was ab initio illegal and that of ACIT, Noida valid. While ld. CIT(Appeals) projected as if assessee was non cooperative with ACIT, Noida and misrepresented facts before Hon'ble High Court, without appreciating that assessee was consistently objecting to illegal jurisdiction, had no legal obligation to surrender himself to it in order to avoid anticipated harassment. 3.15. Though on one hand in assessee's case it is being held that: (i) there is no necessity of giving opportunity of hearing to assessee for transfer of case record from one city to another; (ii) Delhi and Ghaziabad are practically same city. On the other hand while transferring the jurisdiction of assessee's wife Smt. Urmila Gupta in similar order u/ 127(2) dated 16-3-2004, CIT Delhi notice of hearing was given which is evident from the order. 3.16. CIT(A) in the appellate order dated 7-2-2011 held that ACIT, Noida had valid jurisdiction over the assessee on following considerations: (i) Without refuting assessee's claim that no 148 notice dated 27-3-2003 was not served on him. It has been held that as per I.T. Law and Civil Procedure Code, notice u/s 148 is deemed to....
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....is angle also, opportunity was not really needed to be given to the assessee. Thus the contention raised by the appellant regarding the same has no force and is hereby rejected." (vi) Two facts are given importance, namely, the AO Noida was having territorial jurisdiction over the area where the assessee was conducting his business and secondly in view of section 124(3)(b), the assessee, Shri Deepak Gupta, could have questioned the jurisdiction of ACIT, Noida within the time limit of 30 days from the service of notice u/s 148 i.e. latest by 27- 04-2003. However, Shri Deepak Gupta neither filed any return nor filed any letter of objection regarding jurisdiction within the stipulated period. (vii) Order of DGIT (Inv.) Lucknow clearly held that ACIT, Noida had valid jurisdiction over assessee. (viii) Assessee's bank a/cs have Noida address and assessee had used Noida address also. (ix) Reliance was placed on M/s Amulya General Trading & Agencies Ltd. Vs. ACIT (1998) 65 ITD 329 (Del.), observing as under: "Section 124, read with section 120, of the Income tax act, 1961 - Income-tax authorities - Jurisdiction of - Assessment years 1988-89 to 1992-93 Assessee - comp....
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....s 148 was issued on assessee on 17-7-2003 through Inspector, which was also not received by it. If there was a properly served notice u/s 147, why would AO issue another 148 notice on 17-7-2003. On coming to the knowledge of these proceedings, assessee objected on 21-7-2003 itself pointing out that he was assessed at Delhi and ACIT, Noida had no jurisdiction. The same objection was sent to CIT, Ghaziabad also. None of the authorities ever examined these objections. It is wrong on the part of ld. CIT(Appeals) to hold that 148 notice dated 27-3-2003 was received by the assessee. Without verifying the fact about service on the assessee, the service has been deemed because notices were issued. It has been held that assessee should have objected to the jurisdiction by 27-4-2003, ignoring that assessee had filed proper objections with all the details about the non service of notice before various competent authorities. Authorities knew that the assessee was assessed at Delhi, however deliberately did not even consider the statutory objections raised by the assessee and no step was taken to correct their mistake by either transferring the material available with them to AO, Delhi or immed....
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....laced as DGIT (Inv.) himself has observed in his order that he had no role in deciding the issue of jurisdiction and on one hand expressed his inability surprisingly various adverse observations have been made against assessee . When the DGIT (Inv.) himself accepted that he has no power to decide the issue of jurisdiction and he reports only to the Member(Inv.), CBDT, any adverse reference or mention in the order against assessee is without any justification. CIT(A)'s reliance on his order is misplaced and self contradictory. 3.22. Coming to the observation that Noida and Delhi for all practical purposes are same locality and place, it is vehemently argued that ld. CIT(A)'s findings have no legs to stand and they are self contradictory. Income-tax department itself regards Delhi and Noida as two different geographical locations in terms of city and state, as the Noida comes under U.P. state. As per the departmental hierarchy there are separate CCIT as they are treated as two different charges, therefore, there is no merit in CIT(A)'s finding. The I.T. Act has a clear statute on this issue which cannot be interpreted on the basis of practical purposes meanings. When t....
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.... The Director General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General of Chief Commissioner or Commissioner, - (a )Where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b)Whe....
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....ecessor. It is also provided that wherever it is possible to do so, the assessee shall be given a reasonable opportunity of being heard before an order of transfer is passed and that the competent authority will record his reasons for the transfer. The Explanation to section 127, makes it clear that once an order of transfer is made under the section, all pending proceedings for different years are transferred and the Assessing Officer to whom the case is transferred would be in a position to continue all the pending proceedings and to institute further proceedings against the assessee in respect of any year, past or future, and even to re-open the assessment for an earlier year which stood completed at the date of the transfer. It is clear that in the absence of any transfer order no Assessing Officer other than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to re-open a concluded assessment. It is common ground between the parties that the file of the petitioner pertaining to the assessment year 1988-89 has not been transferred from the jurisdiction of Assessing Officer, Pune to the ITO, Jalandhar....
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....4.2. The transfer of jurisdiction/ record are administrative proceedings and cannot be interpreted in such a manner to render the assessment proceedings as invalid. Reliance is placed on M/s Amulya General Trading & Agencies Ltd. (supra). 4.3. In any case, if the assessee objected to the jurisdiction of ACIT, Noida, after one month of issue of notice u/s 148, which is time barred and has been , as rightly pointed out by the ld. CIT(Appeals). Further reliance is placed on Hon'ble Punjab & Haryana High Court decision in the case of Smt. Jaswinder Kaur Kooner Vs. CIT (2007) 291 ITR 80, for the proposition that assessee can challenge the issue of jurisdiction only by way of writ petition and not in the assessment proceedings and assessee having not raised the objection as to jurisdiction at the appropriate time before AO, cannot be permitted to take the issue in appeal. 5. In rejoinder, learned counsel for the assessee contends that ld. DR has so far not been able to demonstrate the disputed fact that assessee was assessed at Delhi and the departmental authorities could transfer the jurisdiction as per law and not as per their whims. PAN nos. are issued universally by Noida o....
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.... 148 are invalid as per the provisions of Income-tax Act. This ground of the assessee is allowed. 6.2. Coming to the issue raised by the assessee that the transfer of jurisdiction order u/s 127(2) is also not proper in the eyes of law, it is clear that the CCIT, Meerut issued the letter to both the Commissioners i.e. CIT, Ghaziabad and CIT Delhi for inter charge transfer of jurisdiction on 3-3- 2004. The impugned 127(4) order has been passed by the CIT, Delhi on 9-3- 2004 i.e. within 5 days. There is no reference to any opportunity of being heard given to the assessee. There is neither any reference in the order nor ld. DR could dispute this fact. Ld. DR has only argued that it is an administrative order and denial of opportunity of hearing is not appealable, therefore, no prejudice is caused to the assessee. We are unable to agree with ld. DR. Statutory requirements are always mandatory irrespective of the fact whether the same is appealable or not, therefore, any transfer order passed u/s 127(2) of inter charge jurisdiction , without complying with the statutory requirement of giving opportunity of being heard to the assessee is invalid. 6.3. Hon'ble Delhi High Court's....