TaxTMI 
TaxTMI 
2017 (12) TMI 297
X X X X Extracts X X X X
X X X X Extracts X X X X
....2005 passed by the Additional Commissioner of Income Tax under section 143(3) is bad in law, illegal and without jurisdiction and / or in excess of jurisdiction, on the grounds amongst others, that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the assessment order and consequently the Hon'ble Tribunal be pleased to quash the said order. 2. The Additional Commissioner of Income Tax lacked jurisdiction to pass the Order of Assessment u/s 143(3) dated 15.03.2005 and to exercise the powers of performing the functions of an Assessing Officer, without establishing that he possess such jurisdiction conferred on him under section 120(4)(b) of the Act. Accordingly, in the absence of an order u/s 120(4)(b) conferring jurisdiction on the Additional Commissioner of Income Tax, the assessment order dated 15.03.2005 passed by him needs to be quashed. 3. The proceedings having been initiated by issue of a Notice u/s 143(2) on 15.10.2003 by the Dy. Commissioner of Income Tax, in the absence of an Order transferring jurisdiction u/s 127 to the Additional Commissioner of Income Tax, the Order of Assessment dated 15.03.2005 passed by the Additio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder of the CIT(A) both the Revenue and the assessee filed appeals before the Hon'ble ITAT. The appeal of the Revenue was dated 9th June 2006. The appeal of the assessee was dated 12th June 2006. 6. A look at the grounds of appeal would show that the assessee challenged the order of the CIT(A) only on merits. It did not challenge the jurisdiction of the Assessing Officer (Additional Commissioner) for making the assessment. Additional Grounds 7. Thereafter, suddenly, after about ten and half years, on 17th November, 2016, in a casual manner, the assessee filed additional grounds seeking quashing of the assessment order passed by the Additional Commissioner, on the ground that the Additional Commissioner lacked jurisdiction to pass the assessment order. Extracts of the forwarding letter is reproduced below: "Delhi Bench of the Hon'ble Tribunal in the case of Mega Corporation Ltd. v. Additional CIT (ITA No.l02/Del/2014) decided on 21/9/2015 on the facts similar to the aforesaid Appeals of the Appellant has held the Assessment Order to be invalid and bad in law. This order of the Hon 'ble Tribunal has been recently reported and on the basis thereof, we propose t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a satisfactory explanation before the Tribunal. The delay can be divided into two parts - first part between 1.06.2006 to 21.09.2015, when the Delhi Bench of this Tribunal decided the case of Mega Corporation Ltd. The appeal could have been decided during this time. Fortuitously, the appeal did not come up for hearing and assessee took advantage of the delay in disposal of appeal. This clearly shows that the assessee was all along satisfied that the Additional Commissioner was having valid jurisdiction to pass the assessment order. Our attention was drawn towards the order of the Tribunal in the case assessee's own case for A.Y. 2001-02, especially para 3.17, where the Tribunal has referred to various decisions. It was submitted that these decisions were given much prior to the decision in the case of Mega Corporation Ltd. Yet the additional grounds were not filed by the assessee therefore, as far as the assessee was concerned, it had accepted the position that the Additional Commissioner had valid jurisdiction to make the assessment. The natural inference will be that the assessee and the Revenue understood that the appeal was to be decided only on merits. The position was settle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Japan Broadcasting Corporation (2008) 305 ITR 137 (Del) * CIT vs. Hutchison Telecom Ltd. (2010) 323 ITR 320 (Del) Thus, it was submitted by the learned DR that if no time limit is prescribed for filing additional ground, it does not mean that it can be filed after any lapse of time in a reckless manner. Even when no time limit is provided for filing additional grounds, they should be filed within a reasonable time. The normal period for filing an appeal before the Tribunal is 60 days from the receipt of the order of the CIT(A). The additional grounds should be filed within a reasonable time thereafter especially in a case like this, where it is not an ordinary ground of appeal arising from the orders of the authorities below but a ground challenging the validity of the jurisdiction of the assessment order, which was not raised before the lower authorities and such a ground seeks to unsettle a settled position. It was further submitted that this ground will have a bearing on other assessee's also as the assessments for other years and other assessee would have been conducted on the validity of this assessment order as the validity of this assessment order as the jurisdiction wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. Thus, it was contended that the decision of Delhi High Court in the case of Mega Corporation Ltd is binding and, therefore, additional ground should not be entertained. 6. It was further submitted that the only pure questions of law can be raised before the Tribunal for the first time as held by the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC). The question of jurisdiction is not a pure question of law as it requires investigation into facts particularly in an old case like this. It was also submitted that the issue regarding the jurisdiction is not appealable before the Tribunal u/s. 253 of the Act. Ultimately, it was contended that the assessee has submitted to the jurisdiction and participated in the proceedings therefore, he is debarred to take this issue by way of additional ground. Even from the additional ground, it is not clear at what time the Additional Commissioner was required to establish his jurisdiction. Referring to section 114(c) of the Evidence Act, it was contended that the presumption is that judicial and official acts have been regularly performed. Thus, it was contended that in case this Tribunal admi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t in this case the additional ground were not admitted in view of section 124(3), wherein objection to the jurisdiction of the Assessing Officer can be raised only within a time stipulated therein. Section 124 is relevant only to territorial jurisdiction and not where inherent jurisdiction is challenged. To support t his contention he relied on the Gujarat High Court decision in the case of CIT vs. Ramesh D. Patel (362 ITR 492) wherein Court held that "the provisions of Section 124 clearly concern the territorial jurisdiction of the Assessing Officer and have no relevance to inherent jurisdiction for passing an Assessment Order." Further, the Delhi High Court has its own earlier decisions, also drawn a distinction between "territorial jurisdiction" and "inherent jurisdiction" in two cases viz. CIT vs. S.S. Ahluwalia [2014] 88 CCH 158 and K.K. Loomba (241 ITR 152). The Hon'ble Delhi High Court has concluded that Section 124 has relevance to "territorial jurisdiction" alone. He further submitted that view similar to the above is also reiterated by the Allahabad High Court in Prashant Chandra vs. CIT [2017] 81 taxmann.com 106, which forms part of the paper-book II and by the Calcu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Official Liquidator vs. Dayanand (2008) 10 SCC 1. (vii) Siddharam Satlingapa Mhetre vs. St. of Maharashtra (2011) 1 SCC 694. 10. The Department has supported the above arguments on the basis of Allahabad High Court decision in the case of CIT vs. British India (337 ITR 64) and contended that a plea of want of jurisdiction could not be raised beyond time stipulated in Section 124. In rebuttal of the DR's reliance on the decision of the Allahabad High Court in the case of CIT vs. British India (supra), the learned counsel for the assessee submitted that this case is not applicable because it is confined to challenge the "territorial jurisdiction" and not "inherent jurisdiction". Further, as noted in this very judgment, applying the Supreme Court judgment in the case of Kiran Singh (AIR 1954 SC 340) it is clear that where there is a challenge to the "inherent jurisdiction", the concept of "prejudice" is not relevant. 11. In the context of the DR's reliance on the Supreme Court judgments in the case of Kiran Singh vs. Chaman Paswan (A.I.R. 1954 S.C. 340), Rafique Bibi vs. Sayed Waliuddin [(2004) 1 Supreme Court Cases 287] and Deepak Agro Foods vs. State of Rajasthan, the learned....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Bombay Benches in the cases of Tata Sons Limited and Tata Communications Limited have proceeded on the basis of such retrospective amendment of Section 2 (7A). In the case of Tata Sons Limited, the retrospective amendment has been noticed in paragraphs 3.24, 3.25 and 3.26. Similarly, in the case of Tata Communications Limited the retrospective amendment of Section 2 (7A) has been noticed on pages 8,14,16,18,19 to 23. Both the Benches have examined this amendment and its implications and impact and concluded that for the relevant assessment years, the Additional CIT could not pass an Assessment Order and perform the functions of an Assessing Officer in spite of the retrospective amendment. Further, the learned counsel submitted that it is well settled that a decision of the Delhi High Court is not binding on Bombay Tribunal Benches and in this regard reliance is placed on the decisions of the jurisdictional Bombay High Court in the following three cases: a) CIT vs. Thana Electricity Supply Ltd. - 206 ITR 727 (Bom). b) Geoffrey Manners vs. CIT - 221 ITR 695 (Bom). c) Consolidated Pneumatic Tool vs. CIT - 209 ITR 277 (Bom). Similar view has been taken by Chandigarh Bench o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and legal competence of its officer to pass the assessment order, as and when it is called upon to do so. No order can be sustained in the eyes of law if its author does not have requisite sanction of the law. If an order does not possess requisite strength in the eyes of law and is void ab-initio, then it will remain so even if there is acquiescence or participation by the assessee in the proceedings carried out by the AO to frame the assessment order. It is well settled law that consent of the assessee cannot confer jurisdiction to an assessing officer who lacked jurisdiction under the law. Similarly, vice versa is also true i.e. absence of consent of the assessee shall not take away jurisdiction from an Assessing Officer who actually possessed a valid jurisdiction in the eyes of law. Thus, legal competence of the officer who passed the assessment order as well as validity of the assessment order must be examined on the basis of factual analysis and provisions of law and not on the basis of conduct of the assessee. This issue is not res-integra. Immediate reference in this regard can be made on the judgment of Hon'ble Bombay High Court in the case of Inventors Industrial Corpor....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 6981 & 7071/Mum/2005 for A.Y. 2002-03 and the Tribunal vide its order dated 30.06.2017, while dealing with this issue held as under : 6. We have heard the rival contentions and perused the material available on record. In our opinion, the issue raised in the additional grounds and supplementary additional grounds primarily pertain to the authority and jurisdiction of Addl. CIT to act as an "Assessing Officer". Thus, in this context, facts/material which require examination are the statutory notices issued under section 142(1)/143(2) by the concerned Assessing Officer and the relevant notifications conferring jurisdiction upon the DCIT/Addl CIT to act as an Assessing Officer of the assessee. Since the statutory notices issued under section 142(1)/143(2) are already part of the assessment record and the notifications conferring power on the concerned officer to act as an Assessing Officer of the assessee are part of the Department's record they do not require investigation into fresh facts. In any case of the matter, the issues raised by the assessee in the additional/supplementary additional grounds are purely legal and jurisdictional issues going to the root of the matter as it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubtedly, the Tribunal has the discretion to allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." The Standing Counsel from the department expects this Tribunal that it should not follow the decision of the Supreme Court. The decision of Supreme Court is binding under Article 141 upon all judicial forums. We, therefore, dismiss this argument of the Standing Counsel. 14. The Standing Counsel has also raised an argument that this Tribunal should not decide the issue as the Revenue has gone in appeal before the High Court. He also submitted before us copy of the questions of law and the grounds of appeal filed before the High Court. But when we asked whether the appeal filed by the Revenue has been admitted or not, he did not say that it has been admitted rather, contended that since the appeal has been filed before the High Court, this Tribunal should not admit the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gard, we may submit that the additional ground before the Tribunal is whether the Commissioner, who passed the impugned assessment order, had valid jurisdiction or not while making the application for the admission of the additional ground. No doubt there the assessee has relied on the decision of Delhi Bench in the case of Principal CIT vs. Mega Corporation, but relying on a particular decision does not mean that his additional ground be decided by us. We have gone through the decision of Delhi High Court in the case of Mega Corporation Ltd. (supra) and noted that various High Courts have taken a contrary view on this issue, as under: * CIT vs. Ramesh D Patel [362 ITR 493] (Guj) * Prashant Chandra vs. CIT 81 taxmann.com 106 (Allahabad) * Elite Pharmaceuticals vs. ITO[242 Taxman 345] (Cal) Now it is not a case where similar issue has been decided only by Delhi High Court. Delhi High Court is not the jurisdictional High Court. When there is a contrary decision of the Jurisdictional High Court, the decision of Delhi High Court is not binding on us. In this regard we are bound to follow the decision of Hon'ble Bombay High Court in the case of Thane Electricity Supply Ltd (20....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the Gujarat High Court in the case of Ramesh D Patel (supra), while dealing with a similar issue, we noted that at page 496 under last but one paragraph held as under: 9. Thus, section 124 of the Act pertains to the territorial jurisdiction of an Assessing Officer vested under sub-section (1) or sub-section (2) of section 120. An objection to such jurisdiction can be raised in terms of section 124(2). In terms of sub-section (3) of section 124, right to raise such objection shall be foregone beyond the stages mentioned therein. The said provisions are clearly concerning with the dispute of the assessee with respect to the territorial jurisdiction of the Assessing Officer and has no relevance in so far as the inherent jurisdiction for passing an order of assessment under section 153A of the Act is concerned, when no search authorisation under section 132 was issued or requisition under section 132A of the Act was made. Similarly Hon'ble Allahabad High Court in the case of Prasad Chandra vs. CIT (supra) in para no.22 has categorically held as under: "22. As regards the question of determining the jurisdiction, we may point out that in Moti and Jawahar (supra), which has b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter the return was filed by the assessee, a notice was issued by the ACIT Cir 2(3), Mumbai, dated 5th September 2001, intimating the assessee about change in jurisdiction and claiming that jurisdictional was with the said officer. The relevant part of the said notice is reproduced hereunder: "Sub: Change in jurisdiction-Intimation regarding In terms of Notification No. SO No. 732(E) dated 31.7.2001 of Central Board of Direct Taxes and consequential Notification dated 7.8.2001 of CIT. MC-II, Mumbai., jurisdiction over your case with effect from 1.8.2001 vests with the undersigned. All IT./W.T. and Interest tax Returns and necessary correspondence on that account are therefore required to be filed with the undersigned. All payments towards Income-tax (by way of Advance tax, Regular tax or S.A. tax), Interest tax, Wcalth tax and payment u/s. 115-0 of the I.T. Act are also to be made w.e.f. 1.8.2001 to the credit of the ACTT Circle 2(3), Mumbai. 2. Similarly, jurisdiction over the Managing Director, Director, Manager, and Secretary of your also vests with the undersigned vide Notifications quoted supra. Consequently, all the ; of die above persons and follow up correspondences on....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... authority. But, exercise of the jurisdiction between both the officers shall always be mutually exclusive to each other. If the jurisdiction has been assigned to one of the officers, it shall not be exercised by the other, and if the jurisdiction is taken away from the former officer and assigned to the latter, then it shall be exercised by the latter only and not by the former. Thus, the jurisdiction can be exercised by only one Assessing Officer at any given point of tune who has been duly assigned the jurisdiction by the competent authority. The assignment of jurisdiction to an officer and its transfer from one officer to the other can be made only through the prescribed process of law. Section 127 of the Act contains provisions regarding process to be followed by the Revenue Officers and their powers for transfer of cases from one Assessing Officer to the other. Section 127(1) inter-alia provides and mandates that the Commissioner may after recording his reasons for doing so, transfer any case from one Assessing Officer subordinate to him to any other Assessing Officer (whether with or without concurrent jurisdiction) also subordinate to him. Thus, mandatory requirement of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....perior officer and the other part will be dealt with by one subordinate officer...." ............ It appears to us quite clearly that there is a distinction between concurrent exercise of power and joint exercise of power. When power has been conferred upon two authorities concurrently, either one of them can exercise that power and once a decision is taken to exercise the power by any one of those authorities, that exercise must be terminated by that authority only. It is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible in a situation where both the authorities jointly exercise power but it certainly is not permissible where both the authorities concurrently exercise power. One example that immediately comes to the mind is that of grant of anticipatory bail. Both the Sessions Judge and the High Court have concurrent power. It is not as if a part of that power can be exercised by the High Court and the balance power can be exercised by the Sessions Judge. If the High Court is seized of an application for anticipatory bail it must deal with it and sim....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Range-6 anpur and therefore, the assessment framed by the Addl.CIT, Range-6 anpur irrespective of the fact as to whether he was authorized to perform the functions of an AO or hot, is illegal and void ab initio for want of jurisdiction. Consequently, we are of the opinion that the assessment order hi the present case dated 31.3.2003 passed by the Addl.CIT, Range (6), Kanpur was illegal and void ab initio for want of jurisdiction. Consequently, the assessment order is quashed." 9.2 Consequently on this count also, the assessment made on 29.12.2008 by the Additional Commissioner is illegal and bad in law for want of jurisdiction. 10. for the reasons aforesaid we hold that the order of assessment dated 29.12.2008 was without jurisdiction and therefore is quashed as such, hi result, ground Nos. 1 and 2 are allowed." 3.23. In the case before us, the facts are identical. It is noted that Ld. CIT-DR as well as the Assessing Officer (present incumbent) who was personally present during the course of hearing before us, jointly stated that no such order (as prescribed under section 127(1) required to be passed by the jurisdictional Commissioner of Income tax) is available in the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te the fact that for all the other purposes 'Joint Commissioner' meant 'Additional Commissioner' as well, as per section 2(28C). It is clear from the facts that by way of subsequent amendment by Finance Act, 2007, words 'Additional Commissioner' have also been inserted along with words 'Joint Commissioner' in section 2(7A) which defines the term for 'Assessment Officer' . In case, the legislature would have intended and meant that for the purpose of acting as Assessing Officer, 'Joint Commissioner' and 'Additional Commissioner' means one and the same, then there was no need to come out with an amendment made by Finance Act, 2007, wherein the word 'Additional Commissioner' was also inserted in the definition of 'Assessing Officer' as contained in section 2(7A). Thus, it is clear as per the plain reading of the statute that when the assessment order was passed, the 'Additional Commissioner1 was not authorized to act as Assessing Officer. 3.26. In addition to the above, it further noted by us that only that 'Joint Commissioner1 was authorized to act as an Assessing Officer who was directed under clause ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nue as far as issue before us is concerned. So far as Notification No.267/2001 is concerned, it reads as follows:- "In exercise of the powers conferred by clause (b) of subsection (4) of section 120 of the income -tax Act,1961(43 of 1961), the Central Board of Direct Taxes, hereby directs that the Joint Commissioners of Income Tax or the Joint Directors of Income tax, shall exercise the powers and functions of the Assessing Officers, in respect of territorial area or persons or classes of persons or incomes or classes of income or cases, or classes of cases, in respect of which such Joint Commissioners of Income tax are authorised by the Commissioner of Income tax, vide Government of India, Central Board of Direct Taxes notification number S.O.732(E) dated 31.07.2001, * S.O.880(E) dated 14.09.2001, S.O.881(E) dated 14.09.2001, S.O. 882(E) dated 14.09.2001 and S.O. 883(E) dated 14.09.2001 published in the Gazette of India, Part II, Section 3, subsection (if), Extraordinary. (Emphasis supplied) 3.29. Perusal of the aforesaid notification reveals that only those Joint Commissioners shall exercise the powers and functions of the Assessing Officers who have been authorized by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ven in the notifications discussed above only 'Joint Commissioners' were authorized to perform the role of the Assessing Officers. However, the Revenue is not able to bring before us any order of the Commissioner authorizing even the 'Joint Commissioner' to perform powers and functions of Assessing Officer of the assessee. As per the discussion made by us in detail in the earlier part of our order, it is clear that no such order is available in the assessment record or in any other record. Legal consequences of the same have been elaborately analysed in many judgments by various courts. 3.32. Identical issue came up for consideration before Delhi Bench of Income Tax Appellate Tribunal :' the case of Mega Corpn. Ltd. (supra). The bench discussed entire law available on this issue and helcr that an 'Additional Commissioner of Income Tax' cannot ipso facto exercise the powers or perform the function of an Assessing Officer under the Act. He can perform the functions and exercise the powers of an Assessing Officer only if he is specifically directed under section 120(4)(6) of the Act to do so. Relevant part of the observations of the bench is reproduced h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing Officer under the Act. In other words, an Additional Commissioner can only be directed u/s 120(4)(b) of the Act to "Assistant Commissioner" or "Deputy Commissioner" or "Assistant Director" or "deputy Director" or Income Tax Officer" under the Act. This interpretation also derives strength from the provisions contained in section 120(4)(&) of the Act which reads as under: "120. Jurisdiction of income-tax authorities (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,- (b) empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by an Additional Commissioner or an Additional Director or a Joint Commissioner or a Joint Director, and, where any order is made under this clause, references in any other provision of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of the order as discussed therein is reproduced below:- "16.2 From the contents of the aforesaid provisions, it is quite clear that so far as Addl. Commissioner is concerned, firstly he has been included in the definition of "Assessing Officer" given under section 2(7A) of the Act with effect from 1.6.1994 as a result of retrospective amendment made by the Finance Act, 2007 but at the same time, it is also clear that the Add) Commissioner will be Assessing Officer as envisaged in section 2(7A) so amended only if he directed under clause (6)of sub-section (4) of section 120 to exercise or perform all or any of the powers and functions concerned on or assigned to an Assessing Officer; meaning thereby that the Addl. CIT can function or can exercise the powers and perform the functions of an Assessing Officer if he is empowered by the CBDT as required under clause (6) of sub-section (4) of section 120....... 18.1 So far as the issue before us in the present appeal is concerned, it is now clear from the provisions as discussed hereinbefore that the Additional CIT could act and exercise the powers of an AO only in consequence upon delegation of such authority by the Board, Chie....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case. 18.3 In view of the aforesaid facts, circumstances and the discussion and following the law laid down by the Hon'ble Delhi High Court in the case of Dr. Nalini Mahajan (supra), first of all we are of the opinion that the Addl.CIT, Range-6, Kanpur having not been empowered to exercise or perform the powers or functions of an Assessing Officer, the assessment framed by him was illegal and void ab initio......." 3.34. It is further noted that similar view has been expressed by Jodhpur Bench of ITA in the case City Garden v, ITO [20121 21 taxmann.com 373/51 SOT 195 (URG) wherein it has been held that in the absence of a specific order issued in pursuance to Section 120(4)(6) specifically authorizing Joint Commissioner of Income Tax to exercise the powers and perform the function as conferred on or assigned to an Assessing Officer by or under the Act or a notification under section 120 of the Act, he is not competent to act as an Assessing Officer and pass an assessment order. 3.35. Similar view has been taken by Lucknow Bench of IT AT in the case of Microfin Security (P.) Ltd. v. Addl. CIT [2005] 3 SOT 302 wherein it was held that in absence of any allocation being ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nditions required to be fulfilled by the assessing officer must be performed strictly in the manner as have been prescribed and if it has not been done in the manner as prescribed under the law, then it becomes nullity in the eyes of law. Hon'ble Supreme Court in the case of CIT v. Anjum M. H. Ghaswala [20011 252 ITR 1/119 Taxman 352 observed that it is a normal rule of construction that when a statue vests certain powers in an authority to be exercised in a particular manner, then that authority is bound to exercise it only in the manner provided in the statue only. 3.39. Hon'ble Bombay High Court dealt with a similar situation hi the case of Ghanshyam K. Khabrani (supra} wherein the said assessee raised an issue that requisite sanction prescribed u/s 151 for reopening of an assessment was required to be obtained by the AO from Joint Commissioner of Income tax whereas the same was granted by Commissioner of Income tax and therefore the same was nullity in the eyes of law. Revenue took a stand that sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee. But Hon'ble High Court did not agree with the contention of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that if the entire order is quashed after such a long time without deciding the merits of the case, would cause unusual financial burden on the Revenue to refund the taxes paid. The Standing Counsel should understand that this Tribunal is not to decide the mercy petition but has to decide the issue before it in accordance with the settled judicial principles of law. The Tribunal is not to decide the issue on the basis of human and irrelevant consideration. We noted that Hon'ble Supreme Court in the case of CIT vs. Shelly Products & Another (261 ITR 367) clearly held that taxes paid by the assessee on the returned income cannot be refunded. We, therefore, following the principle of judicial discipline hold that in the facts of the present case, the Additional CIT in the absence of a valid order u/s. 120(4)(b) has well as section 127(1) of the Act would not have exercised power of a Assessing Officer to pass impugned assessment order. Accordingly, the impugned assessment order passed is without jurisdiction would have no show and, therefore, quash the same. 19. The learned Standing Counsel, in the end, has taken the contention that the matter may be restored to the file of the CIT(A....