TaxTMI 
TaxTMI 
TaxTMI 
2016 (5) TMI 17
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....s of a sum of Rs. 4053/- and seeking refund of a sum of Rs. 39,546/-. From the profit and loss account it appears that a sum of Rs. 27,232/- was written off allegedly incurred on account of preliminary expenses. A sum of Rs. 92,000/-, on the asset side, on account of preliminary expenses, was shown in the balance-sheet. From the balance-sheet, it also appears that as at 31st March, 2007, the share capital was Rs. 63.63 lacs and the reserve and surplus was Rs. 59.70 lacs approximately. However, as on 31st March, 2008 that is to say in the relevant previous year the share capital rose to Rs. 2,57,00,000/- approximately and the reserve and surplus rose to Rs. 37.52 crores approximately. There was no scrutiny assessment. Refund as prayed for was duly granted by a cheque dated 8th May, 2009 as would appear from page 191 of the additional papers submitted by Mr. Poddar. On 12th April, 2010 a notice under section 148 was issued to the assessee, a copy whereof is at page 192 of the additional papers filed by Mr. Poddar. Assessment under Section 147/143(3) was completed on 21st May, 2010 by disallowing a sum of Rs. 23,000/- under Section 35D by which the profit and loss account had been deb....
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....appellant at the time of issue of the Show Cause notice on 18th March, 2013 and passing of the order on 26th March, 2013 under section 263 of the Income Tax Act, 1961 in spite of transfer of jurisdiction to the Commissioner of Income Tax, Central Circle, Kolkata vide an order dated 3rd September, 2012 under section 127 (2)(a) of the said Act and its purported findings in that behalf are arbitrary, unreasonable and perverse? (b) Whether and in any event, the order under section 263 was passed without granting any opportunity to the appellant and the purported findings of the Tribunal regarding service of notice and grant of opportunity are arbitrary, unreasonable and perverse?" Mr. Poddar submitted that the assessee had already changed his address from 4, Ganesh Chandra Avenue to 27, Brabourne Road, as would appear from the communication issued to the assessee by the Income Tax Pan Service Unit desptached on 29th July, 2011, which would go to show that the current address of the assessee was " 5th Floor, Room No.503, Narayani Building, 27, Brabourne Road, West Bengal, Pin- 700 001", whereas the notice dated 18th March, 2013 was sent at 4, Ganesh Chandra Avenue, 1st Floor, Room ....
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.... support of his submission relied upon the judgement in the case of Rameshwar Sirkar -Vs- Income Tax Officer reported in (1973) 88 ITR 374 wherein the following views were expressed:- "The mere fact that the serving officer did not find the assessee to be served with the notice at his address is not sufficient to establish that he could not be found. It must be shown not only that the serving officer went to that place at a reasonable time when the assessee was expected to be present, but also that if he was not found, proper and reasonable attempts had been made to find him either at that address or elsewhere. A notice by affixture without reasonable attempts to find the assessee is not a proper notice." He also drew our attention to the statutory Form of an application for allotment of Permanent Account Number, which is provided in the Income Tax Rules in Form 49A, which requires of the assessee to give both his residential and office address, and column 8 of the Form requires the assessee to specify the address for communication whether residence or office. He submitted that all changes in the address of the assessee are also required to be notified in the same form. He want....
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....the assessee. The address, appearing in the aforesaid document, of the assessee is 4th Floor, room no.405, Mukti Chamber, 4 Clive Row, Kolkata. Same is the address appearing in another document issued by the Income-tax department appearing at page 191A. He then drew our attention to the notice under section 148 of the Income-tax Act dated 12th April, 2010, which was admittedly received by the assessee in pursuance whereof, he also filed his response and this letter was served upon the assessee at 14 Princep Street, 3rd Floor, Kolkata-700012. He also drew our attention to a letter dated 21st May, 2010 addressed by the assessee to the CIT appearing at page 578 of the additional documents, filed by Mr. Poddar, from which it appears that the prayer for migration made by a letter dated 11th March, 2010 was no longer being pressed. Mr. Ghosal submitted that it is not known as to from which place to which place was the prayer made by the assessee for migration. All that is discernible from the letter dated 21st May, 2010 is that the prayer for migration was not pressed. He contended that there are thus four addresses available; a) Ganesh Chandra Avenue b) Clive Row c) Princep Stree....
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....Poddar contended that the appellant before us is not in any way connected with Atha Mines Group. But the point of substance is that the impugned order under section 263 was passed by the CIT, Kolkata-II, Kolkata in spite of the fact that the jurisdiction had already been transferred by his predecessorin- office by his order dated 3rd September, 2012 with immediate effect. Mr. Podder contended that CIT, Kolkata-II, Kolkata thereafter had no longer any jurisdiction left with him to be exercised in respect of the return or returns filed by the assessee or assessments made. He submitted that the exercise of power was not only ex parte, without notice, but was also without jurisdiction. He drew our attention to the letter dated 18th March, 2013 received by his client from the Deputy Commissioner of Income-tax, which is a notice under section 143(2) pertaining to the assessment year 2012-2013. He submitted that the order dated 3rd September, 2012 transferring jurisdiction to a ACIT/DCIT, Central Circle-XIX, Kolkata had already become operative and was also acted upon. Therefore, CIT, Kolkata-II, Kolkata could not have exercised jurisdiction. The impugned order passed by him is altogether....
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....unal or authority in such event will be incompetent, as having ceased to have jurisdiction, to proceed further with the pending proceeding or proceeding which may be instituted after such removal of jurisdiction." Mr. Ghosal, learned senior advocate appearing for the revenue submitted that the transfer order itself indicates that jurisdiction of ITO, WD- 4(1), Kolkata was transferred to SCIT/DCIT Central Circle XIX, Kolkata, which is at page 584. The jurisdiction of the CIT remained unchanged. In other words, it is the jurisdiction of the Trial Court, which was changed. The jurisdiction of the appellate authority remained unchanged. Therefore, the order under challenge was validly passed by the CIT. Mr. Poddar, in reply, drew our attention to the explanation appended to section 127 of the Income-tax Act which reads as follows:- "In section 120 and this section, the word "case", in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedin....
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....ricted transfer was sought to be made for any particular year or years or otherwise. The order of transfer, as we have already indicated, was passed in the interest of revenue for better coordination, effective investigative and meaningful assessment. The actual transfer of files may have taken place on 29th July, 2013 but admitted position is that a notice under Section 143(2) by the transfereeassessing officer was issued on 18th March, 2013. The existence of files does not confer the jurisdiction when the same has validly been transferred and also acted upon. The jurisdiction over the subject-matter has to be conferred by law. The jurisdiction in this case had been transferred by the order dated 3rd September, 2012 by no other than the CIT Kolkata- II, Kolkata himself. Once that was done CIT Kolkata - II, Kolkata lost the seisin over the matter. He became 'functus officio'. Reference in this regard may be made to the Stroud's Judicial Dictionary of Words and Phrases, 7th Edition, Page 1085 wherein the following meaning has been expressed:- "FUNCTUS OFFICIO. An arbitrator or referee cannot be said to be functus officio when he has given a decision which is held to be no decisi....
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....tion, the function in the performance of which the document was produced before him is over and thereafter becomes functus officio having no power under section 33 to impound the instrument. The matter is really concluded by the decision of the Supreme Court in Govt. of Uttar Pradesh v. Mohammad Amir Ahmad Khan, AIR 1961 SC 787. That was a case where the question arose whether the Collector has any power to impound an instrument sent to him for adjudication under section 31 of the Stamp Act. The Supreme Court held that under that section the Collector had no such power, as the provision gave him the power only to give his opinion as regards the duty with which in his judgment the instrument was chargeable and when that function was performed by the Collector he became functus officio. It was observed by the Supreme Court that the power to impound only exists when an instrument is produced before judicial officers or other officers performing judicial functions as evidence of any fact to be proved, or before other public officers who have to perform any function in regard to those instruments as, for example, registration. The Supreme Court also approved the decisions in Colle....
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....ving fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority." We may first refer to the position with reference to civil courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and ....