TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 1446
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....Y.2003-04) (Revenue Appeal) This appeal in ITA No.4664/Mum/2007 for A.Y.2003-04 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-XXI, Mumbai in appeal No.CIT(A)XXI/Addl.CIT.1(3)/IT.100/05-06 dated 04/04/2007 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 14/02/2006 by the ld. Addl. Commissioner of Income Tax, Range-1(3), Mumbai (hereinafter referred to as ld. AO). CO No.163/Mum/2017 (A.Y.2003-04) (Cross Objection of Revenue) This Cross Objection filed by revenue in CO No.163/Mum/2017 for A.Y.2003-04 arises out of ITA No.3972/Mum/2007, on the additional grounds raised by the assessee against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 14/02/2006 by the ld. Addl. Commissioner of Income Tax, Range-1(3), Mumbai (hereinafter referred to as ld. AO). ITA No.1015/Mum/2010 (A.Y. 2003-04) (Assessee Appeal) This appeal in ITA No.1015/Mum/2010 for A.Y.2003-04 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-2, Mumbai in appeal No.CIT(A)-XXI/Asst.1(3)/IT-11/09-10 (CIT(A)-2/IT/651/09-10) d....
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....eal) This appeal in ITA No.2783/Mum/2010 for A.Y.2004-05 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-2, Mumbai in appeal No.CIT(A)-XXI/Asst.1(3)/IT-12/09-10 (CIT(A)-2/IT/652/09-10) dated 21/01/2010 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act, 1961. Since identical issues are involved in these appeals, they were heard together and are being disposed off by this consolidate order, for the sake of convenience. 2. The Asst Year 2003-04 is taken up as the lead case. The facts of Asst Year 2003-04 are taken up for adjudication and the decision rendered thereon would apply with equal force for Asst Year 2004-05 also except with variance in figures. 3. At the outset, we find that the assessee had raised the following additional grounds vide its petition for admission of additional grounds dated 15.11.2016 which go to the root of the matter as the validity of framing of assessment by the Learned Additional Commissioner of Income Tax is questioned :- "On the facts and in the circumstances of the case, the assessment order dated 14.02.2006 passed by the Additional Commissioner of Income Tax under sec....
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....e facts and circumstances of the case and in law, it is denied that the assessment order dated 14/02/2006 passed by the Addl. Commissioner of Income-tax, Range-l(S), Mumbai under section 143(3) is bad in law, illegal and / or in excess of jurisdiction. The Addl. Commissioner of Income-tax, indeed had jurisdiction to pass the said order under section 143(3), in view of Notification (a) S.O 732(E) -Notification No. 228/2001 [F. No. 187/5/2001.-ITA-1] dated 31/07/2001 of CBDT, read with (b) Notification dated 01 / 08 / 2001 issued by the Commissioner of Income-tax, City-1, Mumbai read with (c) Notification dated 08/08/2001 issued by the Additional Commissioner of Income-tax, Range 1(3), Mumbai. ii. On the facts and circumstances of the case and in law, it is denied that the Addl. Commissioner of Income Tax lacked jurisdiction to exercise powers and functions of AO since he was duly empowered u/s 120(b)(4) to perform functions of AO by the CBDT's Notification in S.O 889(E)-Notification No.267/2001 [F.No. 187/5/2001-ITA-1] dated 17/09/2001. iii. On the facts and circumstances of the case and in law, reliance placed by the assessee on the decision in the case of M/s Mega Corporat....
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....223;s Jurisdiction or lack of it, as per notifications issued u/s 120 of the Act. The ld DR submitted the issue of jurisdiction can only be raised u/s 124(3) of the Act. He submitted that the additional grounds raised by the assessee require fresh investigation into facts which are not on record. Therefore, he argued that under the circumstances, the additional grounds raised should not be admitted. Per Contra, the ld AR submitted that the additional grounds raised by the assessee are purely legal and jurisdictional issues and can be decided on the basis of facts available on record and there is no requirement to investigate into new facts in the light of the decision of Hon‟ble Supreme Court in the case of Jute Corporation of India Ltd vs CIT reported in 187 ITR 688 (SC) ; Hon‟ble Supreme Court in the case of CIT vs NTPC Ltd reported in 229 ITR 383 (SC) and Hon‟ble Jurisdictional High Court in the case of CIT vs Pruthvi Brokers & Shareholders reported in 349 ITR 336 (Bom), among others. 3.3. We have heard the rival submissions and perused the materials available on record. We find that the entire objections of the ld DR in his written submissions have been alrea....
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.... the assessee earlier known as Videsh Sanchar Nigam Ltd , is engaged in the business of providing telecommunication services. For the Asst Year 2003-04, the assessment was completed u/s 143(3) of the Act on 14.2.2006 by the Learned Additional Commissioner of Income Tax, Range -1(3), Mumbai. In the course of assessment proceedings, the ld AO after examining the books of accounts and other materials on record made number of additions / disallowances which were challenged by the assessee before the ld CITA. The ld CITA disposed off the assessee‟s appeal by the impugned order granting partial relief to the assessee. Still aggrieved by the order of the ld CITA, both the assessee as well as the revenue are in appeal before us for both quantum and penalty u/s 271(1)(c ) of the Act. 5. The precise issue raised by the assessee in the additional grounds is that the ld Addl CIT is not vested with jurisdiction in accordance with the statutory provisions to act as an Assessing Officer, therefore, the assessment order passed is without jurisdiction, hence, null and void. To justify the aforesaid claim, the ld AR submitted , as per the provisions of section 2(7A) of the Act, as it stood at....
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....The ld AR submitted that in the absence of any order u/s 127 of the Act transferring the jurisdiction of the assessee from the DCIT, Circle -1(3) to Addl CIT , Circle -1(3) and further, there being no notification issued by the Board u/s 120(4)(b) of the Act, empowering the authorities to appoint the Addl CIT , Range-1(3), Mumbai, to act as an Assessing Officer, the assessment order passed is without jurisdiction, hence, has to be quashed as null and void. 5.1. The ld AR further submitted , even , after completion of impugned assessment on 14.2.2006, the DCIT, Circle-1(3), Mumbai, vide letter dated 23.9.2005, has clarified that he is still in charge as Assessing Officer in the case of the assessee. A copy of the said letter dated 23.9.2005 was placed on record. The ld AR also submitted, even the CBDT had issued a circular vide Instruction No. 5 dated 20.9.2001, wherein, it has been clarified that the Addl. CIT himself will not make the assessee but will closely monitor and supervise the same. The ld AR further submitted that in the case of another group concern viz Tata Sons Ltd vs ACIT reported in (2016) 76 taxmann.com 126 (Mum Trib) , the tribunal, while deciding identical issue....
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....rs and perform functions of the Assessing Officer in respect of certain classes of person of a certain territorial area. He submitted, under the said notification, the Addl. / Jt. CIT, Range-1(3), was empowered to act as an "Assessing Officer". He also referred to notification dated 8th August 2001, issued by the Addl. CIT Range-1(3), assuming jurisdiction of the Assessing Officer. Thus, referring to the aforesaid notifications, the ld. DR submitted that the Addl. CIT has validly exercised power of Assessing Officer in initiating and completing the assessment proceedings in respect of the assessee. The ld. DR submitted, in any case of the matter, jurisdiction of the Assessing Officer can be challenged in the manner and time limit prescribed under section 124(3) of the Act. That being the case, the assessee cannot challenge the jurisdiction of the Addl. CIT in completing the assessment at this stage. The ld. DR submitted, the assessee has not pointed out the prejudice caused to it by the assessment order was passed by the Addl. CIT in place of the DCIT. The ld. DR submitted, board notifications referring to by the Department clearly demonstrate that Addl. CIT, Range-1(3) was holding....
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.... can be followed in case of the present assessee. In similar manner, he also distinguished the other decisions relied upon by the assessee. Finally, the ld DR submitted, the assessee has raised the jurisdiction issue at this stage knowing fully well that most of the issues raised on merit have been decided by the Tribunal against the assessee. He further submitted, the assessee having subjected itself to the jurisdiction of the Addl. CIT, it has lost its right to appeal against the exercise of jurisdiction. Thus, he submitted, the ground raised should be dismissed. 5.5. In the rejoinder, the ld. AR submitted, none of the notifications referred to by the Department specifically conferred jurisdiction of the Assessing Officer on the Addl. CIT in the terms and manner provided under section 120(4)(b) of the Act. The ld. AR for the assessee submitted, all these notifications were considered and specifically dealt with by the Tribunal in case of Tata Sons Ltd. (supra) and ultimately it was held that by virtue of these notifications it cannot be said that Addl. CIT was vested with the power to act as the Assessing Officer as provided under section 120(4)(b) of the Act. In this context, t....
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....0/Mum/2017 ; ITA Nos. 1108 & 1836 /Mum/2008 dated 30.6.2017 wherein it was held as under:- "13. We have carefully and patiently considered elaborate submissions made by bath the parties orally as well as in writing. We have also applied our mind to the decisions cited at the Bar. Specific issue raised before us which merits consideration is, whether the Addl CIT, Range-1(3), had the competence and jurisdiction to pass the assessment order in case of the assessee. As far as the relevant facts are concerned, there is no dispute that the assessee was under the assessment jurisdiction of Dy. CIT-1(3). In fact, the DCIT, being the "Assessing Officer" had initiated assessment proceedings in case of the assessee for the impugned assessment year by issuing notice under section 143(2) on 15th Oct 2003. Before that, he has also processed the return of the assessee for the impugned assessment year and issued intimation under section 143(1) on 31st March 2003. It is evident on record, subsequently the Addl. CIT, Range-1(3), assumed jurisdiction as an Assessing Officer of the assessee and issued notices under section 142(1) and 143(2) on 9`" December 2004 and ultimately completed the assessme....
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....ment brought to section 2(7A) was with retrospective effect from 1st June 1994. Corresponding to the amendment made to section 2(7A), the Finance Act, 2007, amended the provisions of section 120(4)(b), providing that the Board in writing can empower the CCIT/CIT to issue orders directing an Addl. CIT/ADIT to act as an Assessing Officer in respect of any specified area or persons or classes of persons or classes of income or cases of classes of cases which earlier would only be vested with JCIT or JDIT. This amendment to section 120(4)(b) brought by Finance Act, 2007 was also with retrospective effect from 1st June 1994. Thus, as could be seen, for assigning the work of an Assessing Officer to the Addl. CIT, the Board has to empower the concerned CCIT/CIT to issue order in writing in terms of section 120(4)(b) in respect of a particular assessee. Keeping in view the aforesaid statutory provisions, we have to decide the issue raised before us. The specific contention of the assessee is, as per the provisions of section 2(7A), as it existed at the relevant period, Addl CIT was not an Assessing Officer. It is further submitted, even otherwise also, there is no notification / order empo....
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.... with power to act as an Assessing Officer. Therefore, notification no.228 of 2001 dated 31" July 2001, cannot be said to be vesting power of Assessing Officer with the Addl. CIT. Similar is the situation with notification doted 1st August 2001, issued by the CIT, Mumbai, as it is a notification issued under section 120(1) and 120(2) and not under sub-section (4)(b). The third notification dated 8th August 2001, has been issued by the Addl. CIT, Range-.1(3), Mumbai, vesting jurisdiction upon himself to act as an Assessing Officer. Certainly, this notification is not in conformity with the provisions contained under section 120(4)(b), inasmuch as, this notification has been issued under section 120(1) and 120(2) and not u/s.(4)(b) of section 120. The last notification relied upon by the Department is notification no.267/2001 dated 17th September 2001. A perusal of the aforesaid notification, a copy of which has been placed in the Departmental paper book shows that this notification has been issued by the Board under section 120.(b) directing JCIT/IDIT to exercise powers and functions of the Assessing Officer. It does not mention Addl. CIT / Addl. Director of Income Tax in any case o....
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....voline Cummins v/s DCIT, [2008] 307 FUR 103 (Del) held that without a notification under section 120(4)(b) authorizing the Addl. CIT to exercise the powers and functions of the Assessing Officer, assessment order passed by the Addl. CIT is without jurisdiction, hence, invalid. Moreover, it was held that once a proceeding has been initiated by an officer having valid jurisdiction, without any order of transfer under section 127 of the Act, the Addl CIT cannot be vested with power to function as Assessing Officer. The Tribunal negated the contention of the Department regarding exercise of concurrent jurisdiction by both the officers. It was held by the Bench that there is a distinction between concurrent exercise of power and joint exercise of power. The Bench held when power has been conferred upon two authorities concurrently, either one of them can exercise such 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. In fact on a careful perusal of the orders passed by the Tribunal in case of Mega Corporation Ltd. (supra) and Tata Sons Ltd. (supra) we are of the view that the arguments/conten....
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....the basis of material held on record. 3.13 Further, it is noted by us that the aforesaid grounds are purely legal grounds and do not require any investigation of fresh facts and can be decided on the basis of records held on record. It has been, held by the Hon'ble Supreme Court in the case of National Thermal Power Corporation 229 ITR 383 as well as ' the other judgments as have been relied Upon by the Ld. Counsel in its petition that assessee should be permitted to raise legal grounds at any stage, if they go to the root of the matter. 3.14. Revenue's argument to reject the additional grounds due to acquiescence and participation of the assessee in assessment proceedings: It was contended by the Ld. CIT-DR that during the course of assessment proceedings, assessee had made participation in the proceedings. Therefore, assessee cannot he 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 ....
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.... accordance with the provisions of the Income tax Act, 1961. Thus, reliance, upon the provisions contained in Section 124 of the Act would be of no help to the Revenue as the assessee has not challenged either territorial jurisdiction or irregular exercise of jurisdiction by the Additional Commissioner of Income Tax but challenge was made to the authority and legal competence itself of the Additional Commissioner of Income tax to pass the impugned assessment order upon the assessee. Similar view has been taken by the Delhi Bench of ITAT in the case of Mega Corporation Ltd Vs. Additional CIT 155 lTD 1019 (Delhi) following the judgment of Hon'ble Delhi High Court in the case of Valvolines Cummins Ltd, supra. 3.16. In view of the facts and circumstances, of this case and the judgments of Hon'ble Supreme 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 an admitted and therefore, these are admitted for our adjudication. 3.17. Since the additional grounds go to the root of the matter and challenge jurisdictional validity of the order, therefore, we find it appropriat....
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....3.2010 6. 1-farvinder Singh Jaggi vs. ACIT 67 Taxmann.com 109(DeL ITAT) 7. Dr. Nalini Mahafan vs. OfT (Inv.) 257 ITR 123(Del. HC) 8. Ghansh yam K. Khabrani vs. ACIT 346 IT!? 443(Bom. HC) 9. CIT vs. SPL's Siddhartha Ltd. 345 ITR 223 (Del. HC) 3.18. Per contra, Ld. CIT-DR, with the assistance of Ld. AO, vehemently opposed the submissions of the Ld. Senior Counsel and argued that all the Additional" Commissioners have concurrent jurisdiction upon all the assesses falling in their respective ranges and therefore, Additional Commissioner was well within his competence to pass the impugned assessment order. It was further submitted that as per section 2(28C), Joint Commissioner includes Additional Commissioners also. It was further submitted that Section 2(7A) was amended retrospectively and the word 'Additional Commissioner' was also inserted along with word 70/nt Commissioner' by Finance Act, with retrospective effect from 01.06.1994..In response to the query, Ld. CIT-DR fairly submitted that he was not able to t any Order from the board or Chief Commissioner of Tax or Jurisdictional Commissioner of Income Tax authorizing the present Additional Commissioner of....
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....ondence 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, Wealth 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 ACIT Circle 7(3). Mumbai 2. Similarly, jurisdiction over the Managing Director, Director, Manager; and Secretary of your company also vests with the undersigned vide Notifications quoted supra. Consequently, all the returns of the above persons and follow up correspondences on that account are to be made with the undersigned. All payments towards Income-tax and Wealth-tax wef 01.08.2001 of the above persons are also to be made to the credit of ACIT Cir. 2(3) Mumbai. This maybe Carefully noted. Your's Faithfully Sd/- (Jagadish Prasad Jangid) ACIT CIR2(3), Mumbai 3.21. Thus, from the above, it is clear that initially the jurisdiction was with ACIT Cir. 2(3), Mumbai, for passing the assessment order. Subsequently, a notice u/s 143(2) was issued by DCIT Cir. 2(3) dated 01. 12.2003 who was indeed successor to the first officer. Subsequently, assessee received a questionnaire dated 10th December, ....
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....er 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 law in this regard is that an order in writing must be passed by the jurisdictional Commissioner of Income tax for effecting transfer of assessment proceedings from one Assessing Officer to the other. Law in this regard was explained in detail by Hon'ble Delhi High Court in the case of Valvolines Cummins; supra Similar view was taken by the Delhi bench of the Tribunal in the case of Mega Corporation Ltd. Vs. Additional CIT, supra following the aforesaid judgment of the Delhi High Court. Relevant part of order is reproduced below for the sake of ready reference:- "....9 Another content/on specifica....
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....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 similarly if the Sessions Judge is seized of an anticipatory bail, he must deal with it. There can be no joint exercise of power both by the High Court as well as by the Sessions Judge in respect of the same application for anticipatory bail. 30. In the facts of the present case, since the Additional Commissioner had exercised the power of an Assessing Officer, he was required to continue to exercise that power till his jurisdiction in the matter was over. His jurisdiction in the matter was not over merely on the passing of the assessment order but it continued in terms of section 220(6) of the Act in dealing with the petition for stay. What has happened in....
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....esaid we hold that the order of assessment dated 29.12.2008 was without jurisdiction and therefore is quashed as such. In result, ground Nos. 1 and 2 are al/owed." 3.23. In the case before us, the facts are 'identical. it is noted that Ld. CIT-op 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 records. Thus, it is clear that there was no valid transfer of jurisdiction to the Additional commissioner of income Tax who had passed the impugned assessment order. Thus, impugned assessment order had been passed without assuming jurisdiction as per law. 3-24. Next issue raised by the Ld. Senior Counsel was that the Additional Commissioner who had passed the impugned assessment order was not authorized to act as assessing officer of the assessee and pass the impugned assessment order. We analyzed the provisions of law in this regard and find that section 2(7A) defines the term of Assessing Officer as under: "Assessing Officer" means the Assistant Comm....
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....t, 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 Commissioner was not authorized to act as Assessing Officer. 36 In addition to the above, it further noted by us that only that Joint Commissioner' was authorized to act as an Assessing Officer who was directed under clause (b) of sub-section 4 of Section 120 to exercise or perform all or any of the Powers and functions of an Assessing Officer as defined u/s 2(7A) Of the Act. Now, if we refer to section 120, its perusal makes further clear that only CBDT can empower the Chief Commissioners or Commissioners for issuance of orders to the effect that powers and functions of an Assessing Officer for a particular assessee or classes of assessee shall be exercised by a 'Joint Commissioner'. Despite numerous directions, the Revenue was not able bring before us any order wherein any specific authority was given by any Chief Commissioner or Commissioner authorizing the impugned Additional Commissioner t....
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....nment of India, Central Board of Direct. Taxes notification number S.O.732(E) dared 31.072001, S.O.880(E) dated 14.09.2001 S.0.881(E) dated 14.09.2001, S.O.882(E) 14.09.2001 and S.0. 883(E) dated 14.09.2001 published in the Gazette of India, Part II, Section 3, sub-section (ii), 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 concerned Commissioners of Income tax in pursuance to the relevant notification conferring requisite powers to the concerned Commissioners. 3.30. Similarly notification No.228/2001, supra authorize the Commissioners of Income tax to issue orders for authorizing in turn, the Joint Commissioner of Income tax who are subordinate to them for exercising of the powers and performance of the functions of the Assessing Officers.. It also, inter-a!i3f authorizes the Joint Commissioners who were so authorized by the Commissioners, to issue orders in writing to the Officers who are subordinate to them for the exercise of the powers and performance of the functions of the Assessing Officers for sp....
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....e Tax Appellate Tribunal in the case of Mega Corporation, supra. The bench discussed entire law available on this issue and held 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 l2Q(4)(b) of the Act to do so. Relevant part of the observations of the bench is reproduced hereunder for the sake of ready reference:-' . ......... We have considered the arguments advanced by the parties and perused the order of the learned CIT(A), comments of the Assessing Officer and material placed on record. The controversy raised in this appeal relates to the validity of order of assessment dated 29.12.2008 passed by Additional- CIT, Range 6, New Delhi. According to the appellant/assessee, it is incumbent under the scheme of statute to vest .the Additional CIT u/s 120(4)(b) of the Act to exercise or perform all or any of the powers and functions of Assessing Officer under the Act. To examine the above contention, we consider it inappropriate to firstly extract s....
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....oner 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 pérsohs 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 this Act, or in any rule made there under to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or a Joint Director, by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply. " 53 It will be seen that the said provision provides that Board may by general or special order and subject to such conditions, restrictions or limitations as may be specified therein empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and funct....
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....ssing Officer if he is empowered by the CBDT as required under clause (b) 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, Chief Commissioner of Income-tax or Commissioner of Income-tax as envisaged in the provisions of section 120(4)(b) of the Act. However; the power given to the Chief Commissioner of Income-tax or Commissioner of Income-tax being in consequence upon the delegation of power duly authorized by the Legislature, the Chief Commissioner of Income-tax or Commissioner of Income-tax were duty bound, if at all they were to exercise -such delegated power to act accord/hg to the provisions of, law; meaning thereby that it was incumbent upon the Chief Commissioner of Income-tax or the Commissioner of Income-tax, as the case maybe, if at all they wanted to authorize the Additional CIT to act and perform the functions of an AO to pass a proper order delegating such functions/ powers upon him This view of ours is fully supporte....
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....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 ITAT in case of Micro fin Security Pvt. Ltd vs. Additional CIT 94 TTJ 767 wherein it was held that in absence of any allocation being made in favour of Additional Commissioner to make an assessment, he cannot assume for himself such an authority so as to pass an assessment order. 6. Similar view has-been taken recently in another judgment by the Delhi bench of the ITAT in the case of Harvinder Singh Jaggi Vs. ACIT 157 lTD 869 (Delhi). Relevant part of observations of the Bench is reproduced below:- .........As regard the contention of the assessee that no order under section 127 was passed by the Commissioner of Income-tax, the revenue has submitted that the Addl. Commissioner of Income Tax was provided concurrent jurisdiction over the cases through the order of the Commissioner of Income tax and, therefore, no separate order under Section 127 was required W be passed by the Commissioner of Income tax. However, no such order of the Commissioner of income tax conferring the concurrent jurisdic....
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....me was nullity in the eyes of law. Revenue took a stand mat sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee But Hon'blè High. Court did not agree with the contention of the Revenue and observed that:- ..........The expression "Joint Commissioner" is defined in section 2(28C) to mean a person appointed to be a Joint Commissioner of Income Tax or an Additional Commissioner of Income-tax under section 117(1). Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. The expression has a distinct meaning by virtue of the definition in 'section 2(28C). The Commissioner of Income tax 15 not a Joint Commissioner within the meaning of section 2(28C). There is no statutory provision under which power to be exercised by an officer can be exercised by a superior officer, When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority.. Where a statute, requires something to be done in a particular manner, it has to be done in that manner only............ 3.40. Thug, in view of the legal discuss/op made above and f....
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.... the decisions cited, there is no necessity of restoring the matter back to the file o the learned Commissioner (Appeals). As far as the contention of the learned Departmental Representative regarding maintainability of the additional ground on the plea that the assessee can only challenge the jurisdiction& issue under section 124(3) of the Act, we do not find any merit in such submissions. A plain reading of section 124 would show that it refers to an order issued under subsection (1) or (2) of section 120, whereas, we are concerned with an order purported to be passed under section 120(4)(b) empowering the Add). CIT to act as an Assessing Officer. Therefore, in our view, the provisions of section 124 are not applicable to the present case. For that reason we do not feel it expedient to deal with the decisions relied upon by the 'earned Departmental Representative in that regard. Thus, in view of the aforesaid the additional ground and supplementary additional grounds are allowed."' 6.1. Respectfully following the aforesaid decision, we allow the additional grounds raised by the assessee challenging the validity of assessment framed by the ld Addl. CIT and accordingly qua....