TaxTMI 
TaxTMI 
2018 (9) TMI 1538
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....d notice is liable to be quashed and/or annulled. 3. That, the learned CIT(A) has committed a serious error by treating the assessment made by the Asst. Commissioner of Income-Tax (OSD), Bhubaneswar is within the jurisdiction and for that matter the assessment order is liable to be quashed and/or annulled along with demand notice as the Asst. Commissioner of Income-tax (OSD), Bhubaneswar is not having the jurisdiction to assess the income of the appellant in accordance with the provisions of the Act. 4. That, the learned CIT (A) has committed a serious error in not giving an opportunity to the appellant when the appellant through the written submission has categorically requested to resolve the issue of jurisdiction before proceeding to the merit of the case as the matters relating to merit of the assessment order will be academic until and unless the matter of jurisdiction of the Assistant Commissioner of Income-tax (OSD), Bhubaneswar is resolved. 5. That, the learned CIT (A) has committed a serious error by not considering the principles of natural justice as raised by the appellant in the Grounds of Appeal No-3 in his appellate order and for that matte....
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....he assessment order is to be annulled. Ld. CIT(A) dealt on the disputed issue of jurisdiction at page 3 to 5 as under :- "Further during the course of appellate proceedings the A/R of the assessee kept repeating the contention that ACIT(OSD), Range-2, Bhubaneswar is not an Assessing Officer and hence has no jurisdiction to pass assessment orders. In fact the A/R is not aware about the change in the scheme of jurisdiction which has been effected by the CBDT after restricting of the Income Tax Deptt. from 01.8.20008. After 01.8.2008 the jurisdiction over all the assessee in an area jurisdiction is vested with the Additional CIT/Jt. CIT of the concerned Range. All the officers posted in that Range other than the Tax Recovery Officer have concurrent jurisdiction over all the cases in that Range with the Addl. CIT/Jt. CIT of that Range. It is only to ensure effective work load distribution that the Addl. CIT/Jt. CIT passes office orders assigning any particular case to any officer posted in his Range. No order u/s.127 of the I.T.Act, 1961 is necessary for transferring the cases from one AO to another AO within the same Range. Such transfers can be effected by the Addl. CIT/Jt. ....
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.... non-consideration of submissions by the lower authorities. Ld. AR also demonstrated that the matter pertains to assessment year 2006-07 and the appeal was filed in the year 2010 and the assessee is a senior citizen now and having the health ailments. Ld. AR also relied on the affidavit filed in the course of hearing proceeding held on 19.05.2015 :- 7. The ld. AR also relied on the paper book filed in the year 2016 and referred to the ordersheets maintained by the ACIT(OSD) at page 6 to 9 and the judicial decisions. Ld. AR also relied on the order dated 25th November, 2008 issued by the Additional Commissioner of Income Tax, Range-2, Bhubaneswar wherein cases regarding various assessees including the assessee in the present appeal have been assigned to the ACIT(OSD) for the purpose of completion of time barring scrutiny assessment for the A.Y.2006-07. Ld. AR further submitted that the AO passed order without complying the provisions of Section 127 of the Act. Ld. AR also relied on the following judicial decisions and prayed for allowing the appeal of the assessee :- i) U.K.Mahapatra And Company And Others Vs. ITO & Ors., 196 ITR 243 (jurisdictional High Court); ....
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....ment. Most Respectfully Sheweth : That, the learned CIT (A), Cuttack while passing the order in the above referred case has referred and relied to a letter dated 01.08.2008 issued by the Central Board of Direct Taxes, New Delhi so as to justify the action of the Joint Commissioner of Income-tax, Bhubaneswar in transferring the case from ACIT, Circle-2(1), Bhubaneswar to the ITO, Khurda Ward, Khurda and thereafter from the ITO, Khurda Ward, Khurda to the ACIT (OSD), Range-2, Bhubaneswar. That, the appellant in the written notes of submission alongwith paper book submitted in this regard inter alia categorically stated that no such letter of the CBDT is available and for which the Hon'ble Tribunal directed the appellant: to submit an affidavit to that effect. Accordingly, the appellant has submitted an affidavit before the Hon'ble Tribunal mentioning categorically that no such documents exist as has been referred by the learned CIT (A), Bhubaneswar. That, after receiving the affidavit the Hon'ble Tribunal has directed the Respondent - Income-tax Department to produce the letter dated 01.08.2008 issued by the Central Board of Direct Taxes, New De....
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....e. The said action of the authorized representative of the IT. Department in submitting the incomplete documents before the Hon'ble Tribunal without following the Rules and procedures of the ITAT shows the callous approach of the authorized representative of the IT. Department before the Hon'ble Tribunal and for which the appellant will be seriously prejudiced. Prayer The appellant therefore prays your lordship to quash the order passed by the Assistant Commissioner of Income-tax (OSD), Bhubaneswar in the aforesaid case being illegal and without jurisdiction." 10. We have heard rival submissions and perused the material on record and also the documents produced before us by the assessee and the department in the earlier hearings. Before we go into adjudication of issues, we refer to the order sheet dated 19.05.2015, which reads as under :- 23 Appellant : Mr. P.C. Sethi 19/5/2015 Respondent : Mr. Shovan Krishan Sahu Ld. Counsel for the assessee has filed an affidavit stating therein that no circular of CBDT relating to conferring the jurisdiction over the Addl. CIT to transfer cases from one AO to another AO within his range is available. From t....
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....person shall be entitled to call in question the jurisdiction of an Assessing Officer - (a) where he has made a return [under sub-section (1) of section 115WD or] under sub- section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or [sub-section (2) of section 115WE or] sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under [sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115 WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. It is pertinent to note that w.e.f. 1.6.2016 the Finance Act, 2016 is inserted the following sub-clause (c) : (c) where an action has been taken under section 132 or section 132A, after expiry of one month from the date on whi....
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....ng 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 Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner,- (a) where the [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal 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,....
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....ly. Here, we would like to mention the functions of Additional Commissioner of Income Tax provided in the Manual of Office Procedure, Directorate of Income Tax (Organisation & Management Services) Central Board of Direct Taxes, Department of Revenue, Government of India, February, 2003, reads as under :- 18 Functions of Additional/Joint Commissioner of Income Tax (Range) 18.1 After restructuring of the department, the business process has been redesigned to make it Range-centric, thus emphasizing the pivotal role of the Range-head. Additional/Joint Commissioner, who is the head of the Range, exercises concurrent jurisdiction and may, as such, also be required to formulate assessments in revenue yielding and complex cases. The assessment unit of the Range consists of five assessing officers (one DCIT/ACIT and four ITOs). The collection unit in a Range is headed by a TRO who is responsible for collection and recovery of tax. The Record Keeping Unit of the Range is headed by an Administrative Officer/Office Superintendent. 18.2 As head of the range, the main functions of the Addl./Joint Commissioner of the Income Tax are : i. Supervision and control....
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.... conferred upon him under law, can the case of the assessee be transferred to another officer i.e. ACIT(OSD), Range-2, Bhubaneswar without passing any order u/s.127 of the Act merely on the ground that the other officers also had concurrent jurisdiction over the case of the assessee. 19. We find that the issue is squarely covered by the decision of Hon'ble Delhi High Court in the case of Valvoline Cumins Limited Vs. Deputy Commissioner of Income-Tax and others, [2008] 307 ITR 103 (Delhi), wherein it has been held as under :- "When a 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 either 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 exercise of that power." Further in para 29, the Hon'ble High Court has held as under :- "29. 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 auth....