AI Drafter 
TaxTMI 
TaxTMI 
2017 (12) TMI 297
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....ces of the case, the assessment order dated 15.03.2005 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, ....
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....h 2006 running into 55 pages partly allowing the appeal of the assessee. 5. Aggrieved by the order 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 in....
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....ional ground was filed before the Tribunal on 17.11.2016. There was a delay of ten and a half years and the assessee has to give 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 inferenc....
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....ha and others AIR 1960 SCC 1297 * SantoshKumar Shivgonda patil & Ors vs. Balasaheb Tukaram Shevale & Anr. (2009) 9 SCC 352 * CIT vs. NHK 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....
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....ated period of one month. It was further held that section 127 has no application and, the partiers were directed to appeal before the Tribunal for hearing on merits. 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 Eviden....
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....onal ground should not be admitted by the Tribunal at this stage in view of the decision of Hon'ble Delhi High court in the case of Mega Corporation Ltd. (supra), the senior counsel for the assessee pointed out that 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" a....
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....y vs. R.S. Nayak - (1988) 2 SCC 602. (ii) UOI vs. S.K. Kapoor (2011) 4 SCC 589. (iii) UOI vs. Raghubir Singh (1989) 2 SCC 754. (iv) UOI vs. R.P. Singh (2014) 7 SCC 340. (v) St. of Assam vs. Ripa Sarma (2013) 3 SCC 63. (vi) 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 re....
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....as been amended with retrospective effect. It may be observed that this has been done upon concession of both the parties. There is no further discussion as regards the implications or the impact of the retrospective amendment. In rebuttal, it is submitted that the decisions of the co-ordinate 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 t....
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.... in the proceedings. Therefore, assessee cannot be allowed to challenge jurisdictional defect in the assessment order at this stage. We have considered this aspect very carefully. The assessee has challenged before us authority of the officer to pass the impugned assessment order. It is bounden duty of the Revenue to establish the authority 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 assess....
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....me Court and Hon'ble Bombay High Court relied upon by the Ld. Counsel in its petition as mentioned above, we find that these additional grounds deserve to be admitted and therefore, these are admitted for our adjudication. 13. We also noted that similar issue has arisen before the 'F' Bench of this Tribunal in the case of Tata Communication Ltd. in ITA No. 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 co....
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..... Ltd v. CIT (229 ITR 383) has held as under: "...The Tribunal should not be prevented from considering questions of law arising in assessment proceedings, although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take of the powers of the Tribunal. Undoubtedly, 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 gon....
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.... of the assessee with that of the decision of the Delhi Bench of this Tribunal in the case of Mega Corporation Ltd. (supra). But the said decision has been reversed by the Hon'ble Delhi High Court vide its order dated 23.02.2017. Therefore the decision of Delhi Tribunal in the case of Mega Corporation Ltd. does not have any basis for the admission of the additional ground. In this regard, 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 Taxm....
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....orically laid down the proposition of law that decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisdiction. The decision of the Hon'ble Delhi High Court, as has been relied upon by the learned Standing Counsel is not binding on this Tribunal and the Tribunal is not bound to refer the issue involved in this appeal for constitution of the Special Bench. 16. We also noted 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 ....
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...., Mumbai, who passed the assessment order in the case of the assessee, has competence and jurisdiction to pass the assessment order. We noted that similar issue has arisen in the assessee's own case for A.Y. 2001-02 in ITA 4497 & 4542/Mum/2005 and the 'D' Bench of this Tribunal vide its order dated 31.10.2016, while dealing with the issue has held as under: 3.20 We have gone through all the facts and circumstances of the case. It is noted by us that for, the assessment year, after 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 f....
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....stinction between the 'concurrent jurisdiction' and 'joint jurisdiction'. When we talk about assignment of 'concurrent jurisdiction1 to two officers of different hierarchy, it does not mean that both the officers can simultaneously or jointly work upon the assessment proceedings of same assessee. But it means that both the officers are legally eligible for assignment of jurisdiction of the assessment proceedings of a_ assessee and, therefore, any one of these officers can be assigned the jurisdiction by the higher 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 ....
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.... High Court had explained the meaning of the expression 'concurrent1 to mean two authorities having equal powers to deal with a situation -but the same work cannot be divided between them. This is what the Calcutta High Court had to say:- ". . . Concurrent jurisdiction means a subordinate authority can deal with the matter equally with any superior authority in its entirety so that either one of such jurisdictions can be invoked. It cannot be construed as concurrent jurisdiction when one part of the assessment will be dealt with by one superior 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 per....
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....as Income-tax Officer alone who could frame the assessment subject however to the fact that that the assessment could be framed by any other officer also provided there was an order of transfer of jurisdiction over assessee's case from Income-tax Officer, Range-6(2), Kanpur to that officer under section 127(4) of the Act, but so far as present case is concerned, the Revenue has not brought to our notice any order under section 127 passed after 6.8.2002 transferring jurisdiction over the assessee's case from the Income-tax Officer, Range 6(2), Kanpur to the Addl. CIT, 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....
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....ioner of Income Tax or an Additional Commissioner of Income Tax under sub-section (1) of section 117." On the other hand, section 2(1C) defines 'Additional Commissioner' as under: "Additional Commissioner means a person as appointed to be an Additional Commissioner of Income Tax under subsection (1) of section 117." Thus, combined reading of all the above sections makes it clear that prior to amendment made by Finance Act, 2007, the legislature treated 'Additional Commissioner' and 'Joint Commissioner' differently for the purposes of performing the role as an Assessing Officer, despite 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 ....
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....10-2001 with a view to argue that the jurisdiction was assigned to all the officers including 'Additional Commissioner' for exercise of powers as Assessing Officer, and thus the "Additional Commissioner of Income Tax' who had passed the impugned assessment order had inherent powers under the law to act as assessing officer of the assessee and pass the impugned assessment order. 3.28. We have gone through all these Notifications, but do not find any substance in the contention of the Ld. CIT-DR. It is noted that Notification No.335 is issued merely for assigning jurisdiction to various Commissioners and it is thus of no use to Revenue 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 incom....
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....re subordinate to them, in respect of such specified 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 under clause (c) of this notification............" 3.31. Thus, in view of the aforesaid notification it becomes imperative on the part of the Revenue to show us that in the case before us, the Additional Commissioner of Income tax, who had passed the impugned assessment order, was duly authorized by the jurisdictional Commissioner to do so. It is noted that any such order would not be available with the Revenue, because even 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 re....
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...." who is vested with the relevant jurisdiction by virtue of directions or orders issued under section 120(1) or 120(2) or any other provision of this Act. The second part provides that Assessing Officer means the "Additional Commissioner" or "Additional Director" or "Joint Commissioner" or "Joint Director" who is directed under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on or assigned to an Assessing Officer under this Act. In other words, it is manifest that Assessing Officer inter-alia means Additional Commissioner who is directed under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on or assigned to an Assessing 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 provisio....
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....rm the functions 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. 3.33. Similar issue has been decided by the Lucknow bench of ITAT in the case of Prachi Leather (P.) Ltd v. AM. CIT [IT Appeal No. 26(L) of 2010, dated 8.12.2010] relying upon its earlier order in ITA No.744/2004/Lucknow for assessment year 2001-02 decided this issue on the similar lines after considering and following the decision of Hon'ble Delhi High Court in the case of Dr. Nalini Mahajan (supra). It is also noted that this decision has also been considered by Delhi Bench in the case of Mega Corporations Ltd, supra and relevant portion 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 A....
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....le to be quashed as ultra vires. Thus, unless and until an amendment is carried out, by reason of the redesignation itself, read with the provisions of the General Clauses Act, the Addl. Director does not get any statutory power to issue authorization to issue warrant. Therefore, the Addl. Director (Investigation) cannot be said to have any power to issue any authorization or warrant to Joint Director. Consequently, notification dt. 6th Sep. 1989 is not valid in law to the said extent. 18.2 So far as the present case is concerned, though we are concerned with the powers of Additional CIT but the proposition of law laid down by the Hon'ble High Court which was, though in relation to powers of Additional Director (Investigation), is fully applicable to the present 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 ....
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....contained u/s 2(7A), an Additional Commissioner cannot be an authority to exercise and perform all or any of the powers of the functions of the Assessing Officer to make assessment of Income. The Bench analysed the provisions of Section 2(7A) as it existed prior to amendment made by Finance Act, 2007. 3.38. During the course of hearing, it was also submitted by Ld. CIT-DR to defend the impugned assessment order that in any case the assessment order has been passed by an officer of the rank of Additional Commissioner which is much superior to the rank of Assistant Commissioner and thus no prejudice can be presumed to have been done to the assessee. We find that reasoning given by the Ld. CIT-DR to defend the impugned assessment order does not have any legal force. It is well settled law that jurisdictional conditions 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 rul....
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....entical issue came up for consideration before the Tribunal in the case of Tata Communications Ltd. for A.Y. 2002-03, and the Tribunal, vide its order dated 30.06.2017, in ITA No. 6981/Mum/2005 decide the issue in favour of the assessee and quashed the assessment made by the Assessing Officer. The learned Standing Counsel even though tried his best and submitted exhaustive arguments to compel us to take a different view from the view which has been take by the co-ordinate bench under similar facts and circumstances of the case of the assessee in A.Y. 2001-02, he could not adduce any cogent material or evidence, which may prove that the facts and issue involved in the impugned assessment year in the additional ground taken by the assessee is different from that of A.Y. 2001-02. He went on again and again submitting before this Tribunal 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 pri....