TaxTMI 
TaxTMI 
2020 (5) TMI 54
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....et receipts. 3. On the facts and in the circumstances of the case, whether the learned CIT(A) is justified in deleting the addition of suppressed value of Rs. 54, 00, 000 and rejecting the estimation of the AO when it was gathered from the discrete enquiry that the assessee was collecting receipts from customers amounting to two lakhs fifty thousand rupees whereas receipt is issued of fifty thousand rupees only. 4. On the facts and circumstances of the case, whether the CIT(A) is justified in deleting the disallowance of Rs. 8, 75, 000 towards unsecured loan and deciding the matter based on additional evidences submitted by the assessee in spite of the fact that the assessee could not produce any documents during the assessment proceedings which is contravened to the provision of Rule 46A(3). 5. On the facts and circumstances of the case, whether the CIT(A) is justified in deleting the addition of Rs. 1, 81, 83, 759 towards increase in capital and deciding the matter based on return of income for the AY 2012-13, when the AO has submitted that return of income for the AY 2012-13 is invalid as per system and the CIT(A) has allowed assessee's appeal on this ....
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....nd Chartered Accountant (CA) by profession do hereby solemnly affirm on oath and state as under: 1. That I am a Chartered Accountant (CA) by profession and extended my professional services to Sri.P.N.Krishnamurthy, resident of No.32, Mathai Building, Officers Model Colony, Prashanth Nagara, T Dasarahalli, Bangalore, who is assessed to Income Tax under PAN ACOPN3645C. 2. That the professional services provided to the said Sri.P.N.Krishnamurthy included filing of Incometax return, appearance before the assessing officer, etc. 3. That the Notice of the Hon'ble Income Tax Appellate Tribunal (the Tribunal), Bengaluru, intimating the date of hearing on 26.12.2018 in respect of the appeal filed by the revenue in ITA No.1590/Bang/2018 was handed over to me by the said, Sri.P.N.Krishnamurthy, for guidance and necessary action in the matter. 4. Since an appeal was not filed against the order of the learned Commissioner of Income Tax (Appeals) by the said Sri.P.N.Krishnamurthy, I was under the bona fide impression that the respondent is required to appear before the Hon'ble Tribunal in response to the said Notice of the Hon'ble Tribunal and defend the orde....
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.... "12. I have considered the submissions of both the parties and perused the material available on the record. In the present case it is an admitted fact that the assessee efiled the return of income on 14/09/2015 mentioning the address at Mohali, in the earlier years also, the returns of income were filed at the same address. Therefore the A.O. Ward-6(4) Mohali was having the jurisdiction upon the case of the assessee. In the present case the ACIT, Circle-1, Amritsar who was not having the jurisdiction over the assessee's case issued the notice under section 143(2) dt. 12/08/2016 therefore the said notice was beyond the jurisdiction. To resolve the present controversy it is necessary to discuss the provisions contained in Section 143(2) of the Act which reads as under: (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve o....
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....ummons or other proceeding in substance and effect is in conformity with or according to the provisions of the Act. To put it differently, section 292B can be relied upon for resisting a challenge to the notice, etc., only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding. In other 5 words, if the notice, summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his / its jurisdiction, the same cannot be cured by having resort to section 292B." 15. In the present case as I have already pointed out in the former part of this order that the notice under section 143(2) of the Act was not issued in prescribed time limit as per the proviso to section 143(2) of the Act by the A.O. having the jurisdiction upon the case of the assessee and the notice issued by the ACIT, Amritsar suffered from an inherent lacuna affecting his jurisdiction so the same could not be cured by having resort to the provisions of section 292B of the Act. ....
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....oss Account and Balance Sheet and sought time for hearing. Further during the course of hearing, the AR was requested to submit the details vide notice dated 06.10.2015 for which the AR has agreed to submit the same on 14.12.2015. Accordingly, the case was adjourned to 14.12.2015. However, on that date none appeared on behalf of the assessee nor filed any adjournment application. Further, the A.O. Ward 6(2)(3) sent one more letter on 14.12.2015 posting the case for hearing on 23.12.2015 requesting to appear before him with all details as has been called for earlier, stating therein that failure to comply with the same, the assessment will be completed u/s 144 of the Act. However, on this occasion also the assessee has neither appeared nor filed any submission. Reading of the above shows that there was no cooperation by the assessee before the Assessing Officer, however, the assessee is challenging invalid notice u/s 143(2) of the Act, before the CIT(A). According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provi....
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....e was transferred to the ACIT, Central Circle-3(1), Kolkata, the AO at Kolkata was not required to re-issue notice u/s. 143(2) of the Act which had been already been issued by AO at Delhi. According to Ld. CIT, DR therefore, there is no merit in the contention of the assessee. For objectively adjudicating this issue, it is therefore necessary to look at the facts, for which a bird's eye view of the undisputed facts which are noted from the documents placed on record, aretabulated in the following chart. These facts are important to decide the legal issue before us. Sl. No. Date Events 1. Upto 08.10.2008 DCIT, Circle 15(1), New Delhi was the AO of assessee on the basis of territorial jurisdiction. 2. On 08.10.2008 CIT-V Delhi transferred the jurisdiction over the assessee's case u/s 127 to DCIT, Central Circle-1, Ranchi. 3. From 09.10.2008 to 03.11.2017 DCIT, Central Circle-1, Ranchi was the AO of assessee for all proceedings under the Act. 4. 28.07.2016 ACIT, Circle 21(1), New Delhi issued notice u/s 143(2) to the assessee. 5. 30.06.2017 ACIT, Circle 21(1), New Delhi issued notice u/s 142(1) to the assessee. 6. 17.07....
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.... of the powers and perform all or any of the functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. (2) The directions of the Board under sub- section (1) may authorise any other incometax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income- tax authorities who are subordinate to it. (3) In issuing the directions or orders referred to in sub- sections (1) and (2), the Board or other income- tax authority authorized by it may have regard to any one or more of the following criteria, namely: - (a) territorial area; (b) persons or classes of persons; (c) incomes or classes of income; and (d) cases or classes of cases. (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, - (a) authorize any Directo....
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....sion is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and (b) in respect of any other person residing within the area. (2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be determined by the Director General or the Chief Commissioner or the Commissioner; or where the question is one relating to areas within the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the Directors General or Chief Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No 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 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 ....
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....r Commissioner, - (a) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief 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, pass the order; (b) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the....
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....n AO, by virtue of jurisdiction vested by any direction or order issued by CBDT under sub-section (1) and / or (2) of section 120 of the Act. The AO is vested with the jurisdiction u/s. 124 of the Act, over any area within the limits of such area, he shall have jurisdiction over any person (assessee) carrying on a business or profession and if the place at which he (assessee) carries on his business or profession is situated within the area ear-marked for him (AO); or if that person's (assessee's) business or profession is carried on in more places than one, then if the principal place of his business or profession is situated within the jurisdictional territorial area, the AO gets jurisdiction. Other than the assessees who are not in Business or Profession, in their cases, the AO will be vested with the jurisdiction if the person (assessee) is residing within the territorial area ear-marked by virtue of the directions or orders issued under sub-section (1) or sub-section (2) of section 120 of the Act speaks about. However, when there is a question to be determined as to whether an AO has jurisdiction to assess any person then it would be decided by the authorities as stipulated in....
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.... one or more AO subordinate to him. In other words, under Section 127(1) the Pr. Director General or Director General or Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner, as stipulated therein, can transfer the case records of an assessee from one AO to another functioning under his own charge. On the contrary, Section 127(2) empowers the foregoing authorities to transfer of cases from the AOs from his jurisdiction to the AOs who are not functioning under his jurisdiction and therefore who are not subordinate to such authority. In the cases covered u/s 127(2) therefore, if the Pr. Director General or Director General or Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner, of the AO to whom the case of an assessee is proposed to be transferred, agrees for the transfer, then the transfer can made u/s. 127(2)(a) of the Act. In case however there is any disagreement between such stipulated authorities, the matter is required to be referred to the Board which in turn decides the issue of transfer or the Board can then authorize an Income Tax authority by a notification as stipulated in clause (b) of sub-sec.(2) of section 127 ....
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....e light of the above discussion, we now examine the facts involved in the appellant's case and ascertain whether the ACIT, Circle 21(1), New Delhi enjoyed concurrent jurisdiction over the appellant's case so as to enable him to issue a valid notice u/s 143(2) for the AY 2015-16. As noted, the jurisdiction over the appellant's case initially vested with the ACIT, Circle 15(1), New Delhi since the territorial jurisdiction over area or limits of area, where assessee's principal office was situated. The vesting of jurisdiction with the said officer was in terms of the order/ direction of the CBDT u/s. 120(1) of the Act or by Income Tax Authorities (sec. 116) who were delegated the powers to issue orders/directions vesting the jurisdiction of assessment over the authorities subordinate to it. The said Assessing Officer at New Delhi enjoyed exclusive jurisdiction over the appellant upto 08.10.2008. Thereafter, by virtue of order u/s 127(2) passed by the ld. CIT-V, Delhi dated 08.10.2008, the said AO at New Delhi was divested of his jurisdiction over the appellant and the jurisdiction stood transferred in favour of ACIT, Central Circle-1, Ranchi. From the plain reading of the order u/s 12....
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.... sub-section (5) of sec. 124 of the Act, then it will be noted that it starts with the words "Notwithstanding anything contained in this section or in any direction or order issued under section 120 of the Act". The express language employed by the Legislature clearly shows that provisions of sub-sec. (5) of section 124 overrides only the other provisions of Section 124 of the Act and any orders/directions issued u/s. 120 of the Act, which necessarily means that nonobstante clause is limited to operation of sub-section (1) to (4) of sec. 124 or direction/order issued under section 120 of the Act and not with regard to any order of transfer of case of an assessee made u/s. 127 of the Act. In the circumstances when one reads the definition of "case" as set out in the Explanation to Section 127 of the Act, then it means that when a Chief Commissioner or Commissioner makes an order for transfer of jurisdiction in exercise of the powers conferred by Section 127 of the Act, from an AO who is vested with jurisdiction by virtue of direction/order issued under sub-section (1) or (2) of section 120 of the Act to another AO who is not vested with such jurisdiction as per direction/order issue....
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....use he could have continued with the assessment proceedings from the stage at which his predecessor would have left. However this legal proposition pre-supposes that the original notice u/s 143(2) was issued by an officer who held valid jurisdiction over the 'case' of the assessee. We however find that although in June 2016, the jurisdiction over the assessee's case was vested in ACIT, Central Circle 1, Ranchi, he never issued notice u/s 143(2). On the contrary the notice was issued by the ACIT, Circle 21(1), Delhi who, as held earlier, ceased to have jurisdiction over the appellant's case after 08.10.2008. Since no notice u/s. 143(2) was issued by the AO, Ranchi within the stipulated time, sub-section (4) of sec. 127 of the Act does not come to the rescue of the department. As noted earlier, the AO, Delhi ceased to be AO of assessee after the transfer order was passed by CIT-V, Delhi on 08.10.2008, so after such order by the competent authority (which fact is not disputed before us), then the CIT, Delhi became functus officio and by virtue of it even his subordinate authority i.e. AO, Delhi was also divested of the jurisdiction. For the reasons as discussed in the foregoing theref....
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....thorities under subsection (1) or (2) of section 120 of the Act was legally divested of his jurisdiction over the appellant's case by virtue of the order u/s. 127 of the Act dated 08.10.2008, and thereafter AO at Delhi could not have suo moto assumed jurisdiction u/s. 124 of the Act. In our opinion therefore in the appellant's case, the provision of section 124(3) does not come into play since the case of the assessee was legally transferred by the competent authority u/s. 127 of the Act as far back as in 2008. There is a reason for saying so when the transfer of an assessee's case as envisaged u/s. 127 occurs, the competent authority gives reasonable opportunity of being heard [except if the AO to whom case is transferred are situated in the same city, locality or place (see sub-section (3) of section 127 of the Act)] and at this juncture, we would like to remind that in the present case at hand, the assessee was given an opportunity to be heard by Commissioner at Delhi before he proposed the transfer of assessee's case to AO at Ranchi and the assessee had objected to the transfer which is found available in the paper book. After considering the assessee's objections, ....
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....uring the course of hearing before us, the Ld. CIT, DR took pains to convince us that there are overlapping/concurrent jurisdiction in respect to the territorial and pecuniary jurisdiction of the AO and, therefore, the AO having territorial jurisdiction over the assessee's principal office at Rajendra Place, New Delhi having issued the notice u/s. 143(2) of the Act was empowered to do so since the ACIT, Circle-21(1), Delhi enjoyed the concurrent jurisdiction conferred u/s. 120/124 of the Act and, therefore on subsequent transfer of the case by the Pr. CIT, Central Patna by order dated 24.10.2017 to ACIT, Central Circle-3(1), Kolkata, there was no need to reissue the notice u/s. 143(2) of the Act in terms of Sec. 127(4) of the Act. For this he relied on various judicial decisions. We however note that the case laws relied on by the Ld. CIT, DR were factually distinguishable. In these decisions the Courts were called upon to examine the implications arising from the provisions of Section 120 and 124 of the Act and the facts of these cases did not involve orders under Section 127 of the Act in terms of which the AO holding territorial jurisdiction in terms of Section 124 read with Sec....
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....sfer was made in specific circumstances, such as proper co-ordination of search cases. The Commissioner transferring jurisdiction has power to transfer all proceedings under the Act, which are pending, completed or which may be commenced after the date of transfer, but that does not mean that he does not have powers to restrict his order of transfer only to a particular case for which request was made, thereby, leaving the jurisdiction in respect of other cases pertaining to an assessee to be exercised by the AO/CIT who already had it. The power to do a particular act also includes a power to restrict the exercise of power partly. It cannot be said that the power should be exercised either as a whole or not at all. Such an argument is fallacious and defeats the very purpose of conferring a larger power. As the actual transfer of the files from the incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be revised by the ld.CIT u/s 263 was passed much prior to the even making of request for transfer of jurisdiction in respect of search matters, we have absolutely no doubt in our mind that only the CIT Kolkata II, Kolkata had the jurisdic....
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....ptember, 2012 appearing at page 584 of the additional papers filed by him, which is an order passed under section 127 of the Income Tax Act by no other than the CIT, Kolkata-II, Kolkata, who passed the impugned order under Section 263, transferring the jurisdiction over five assessees including the appellant before us to the ACIT/DCIT, Central Circle XIX, Kolkata in the interest of revenue for better coordination, effective investigation and meaningful assessment consequent to a search conducted on 17th November, 2011 against the business concern of Atha Mines. Mr.Poddar contended that the appellant before us is not in any way connected with Atha Mines Group. But the point of substance is that the impugned order under section 263 was passed by the CIT, Kolkata-II, Kolkata in spite of the fact that the jurisdiction had already been transferred by his predecessor-in-office by his order dated 3rd September, 2012 with immediate effect. Mr.Podder contended that CIT, Kolkata-II, Kolkata thereafter had no longer any jurisdiction left with him to be exercised in respect of the return or returns filed by the assessee or assessments made. He submitted that the exercise of power was ....
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....order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously." He also relied upon a Division Bench judgement of this Court in the case of ITO Vs/. Ashoke Glass Works reported in (1980) 125 ITR491(Cal) wherein the following view was expressed (page 505): "So when the jurisdiction is validly removed by a competent authority under the provisions of a statute, the original court or any Tribunal or authority in such event will be incompetent, as having ceased to have jurisdiction, to proceed further with the pending proceeding or proceeding which may be instituted after such removal of jurisdiction." 27. After hearing both the parties the Hon'ble High Court has held as under: "We have considered the rival submissions. It is not necessary for us to consider whether the Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order of transfer in this case was not a restricted one. Reading the order dated 3r....
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....the respondent, if he is dissatisfied with the order, is to go to the Court of Appeal..." A special bench in the case of Komal Chand -versus The State of Madhya Pradesh, reported in AIR 1966 Madhya Pradesh 20 opined in this regard as follows: "Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such instrument is duly stamped. This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that the document is not duly stamped, then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stampe....
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.... registering officer must see that the document is duly stamped. The words "after registering the document" occurring in paragraph 232 obviously refer to the entry of the document in the Register maintained of documents presented for registration. They do not mean that the registering officer can make a report about insufficiency of stamp after the document has been admitted to registration." In the case of SBI -versus S.N.Goyal reported in 2009 (8) SCC92the following views were expressed: "It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review.But the question is as to at what stage an authority becomes functus officio in regard to an order made by him.P.Ramanatha Aiyar's Advanced Law LexiCo.(3rd Edn., Vol.2, pp.1946-47) gives the following illustrative definition of the term "functus officio": Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision." Black's Law Dictionary (6th Edn., p.673) gives its meaning as follows: "Having fulfilled the func....
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.... noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functus officio when it signed the note dated 18-1-1995." Applying the law laid down in S.N.Goyal's (supra) case we are reinforced, in our opinion that the CIT Kolkata - II, Kolkata had become functus officio prior to 18th March, 2013 because the transferee - assessing officer had assumed jurisdiction without which the notice dated 18th March, 2013 under Section 143(2) could not have been issued. Therefore, the order of transfer was duly published/ notified and/or communicated and thereafter acted upon by the transfereeassessing officer. We are, as such of the opinion that the issuance of the notice dated 18th March, 2013 under Section 263 and the consequent order dated 26th March, 2013 passed under Section 263 of the Inc....
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....gs and consequent order u/s 143(3)/147 on the ground that the notice u/s 148 was issued by an officer who did not hold valid jurisdiction over the assessee's case. The Tribunal upholding the assessee's objection, observed as under: "3. Briefly stated facts are that the assessee filed its return of income at Delhi in the office of ITO, Ward-3(3) Delhi on 02-12-2003. Subsequently, notice u/s. 148 of the Act was issued on 25-03-2010 with the permission of Addl. CIT, Range-3, New Delhi. But, in the meantime, CIT-1, Delhi passed an order u/s. 127(2) transferring the jurisdiction of this case vide its order No.CIT-1/Cent/09-10/1874 dated 04-01-2010 from ITO, Ward-3(3), New Delhi to ITO, Ward-6(1), Kolkata. The assessee claimed before the AO as well as before CIT(A) that ITO, Ward-3(3), New Delhi did not have jurisdiction to issue notice u/s. 148 of the Act on 25-03-2010 as the case was transferred u/s. 127(2) of the Act from New Delhi to Kolkata on 04-01-2010. The assessee before CIT(A) filed written submissions as under: "This appeal is against the reopening of assessment u/s. 147 of the I. T. Act 1961. The assessee has challenged the reopening by the ITO Ward 3(3) Del....
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....O at Delhi has rightly reopened the case on approval from higher authority and issued notice u/s 148. On receiving the records on 30-11-10 the undersigned disposed off the case u/s. 147/144 as per the law after offering reasonable opportunities of being heard to the assessee." During the appellate proceedings on 16-02-2010, CIT(A) recorded following order sheet entry: "Mr. Miraj D. Shah, Advocate attended the proceedings & filed written submission of one paper along with the copy of reasons recorded, order sheet of 147 proceedings given. The appellant has submitted that file was transferred to Kolkata on 4-1-10 by order u/s 127. Copies of order u/s 127 and section 151 approved by Addl. CIT to be submitted tomorrow. The issue of jurisdiction of Delhi A.O. was not taken before the A.O. who completed the assessment. Adj. to 20-2-12." 4.CIT(A) discussed the issue and observed in paras 8 and 9 as under: "8. The appellant submitted during the appellate proceedings that he does not submit any additional evidences, books of account or other documents either before the appellate authority or Assessing Officer since these are not available with ap....
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....u/s 127 was passed by Ld. CIT, Delhi-l, on 04-01-10, but before the time the records were not transferred to the transferee Assessing Officer, the jurisdiction lies with the Assessing Officer holding the charge over the case and all action as per the law is required to be initiated or taken by that jurisdictional Assessing Officer only as per the submissions of current Assessing Officer i.e. Income-tax Officer, Ward 6(1), Kolkata and he further submitted that the jurisdictional Assessing Officer at Delhi has rightly reopened the case after due approval from his jurisdictional Joint commissioner of Incometax and issued notice u/s 148 before actually transferring the case. 19. The appellant never raised the question of jurisdiction before the Assessing Officer either at New Delhi when the notice u/s 148 was issued or at the time of assessment with the Assessing officer at Kolkata. There was a possibility to the Assessing Officer at New Delhi to get the records transferred immediately to Kolkata and a fresh notice may have been issued during the time-limitation by Assessing Officer at Kolkata. 20. Following the law laid down and upheld by the Hon'ble appellate au....
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....that jurisdiction AO only. Even the CIT(A) noted that the assessee has never objected regarding the jurisdiction of issuance of notice u/s. 148 of the Act by the AO of New Delhi or initiation/continuation of assessment proceedings by the ITO, Ward-6(1), Kolkata before the AO during the assessment proceedings. Whether such a plea can be accepted or not? Before us, Ld. Sr. DR heavily relied on the decision of Hon'ble Punjab & Haryana High Court in the case of Subhash Chander v. CIT [2008] 166 Taxman wherein the non-objection as per section 124(2) read with section 124(4) of the Act, the jurisdiction assumed by AO was held to be valid. Further, there was reliance by Sr. DR on the case law of Hon'ble Allahabad High Court in the case of CIT v. British India Corpn. Ltd. [2011] 337 ITR 64 [2012] 20 taxmann.com 446, wherein assumption of jurisdiction, by AO for assessment, u/s. 124 of the Act that when the ITO had jurisdiction when assessment proceedings commenced and a draft assessment order was submitted to IAC but due to subsequent change in jurisdiction, unless the same brought to the notice of the authority concerned, the assessment would not be vitiated. We are with ....
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....authorities unless any specific provision is made in respect of any pending proceedings. Such consequence is inevitable when there is withdrawal of jurisdiction, which means automatic extinction of jurisdiction of one authority with simultaneous conferment of jurisdiction on another authority under the Act in respect of all pending and future proceedings. Explanation to section 127 of the Act makes it clear that the word "case" in relation to any person whose name is specified in the order of transfer means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of transfer in respect of any year. The word "case" is thus used in a comprehensive sense of including both pending proceedings and proceedings to be instituted in the future. Consequently, an order of transfer can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. 8. In view of the above pri....
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....exchange of several letters, the CIT-10 Mumbai by his order dated 22.11.2011 transferred the powers to assess the petitioner from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune. Thus, from 22.11.2011 ACIT-10(1) Mumbai did not have any power to assess or reassess the petitioner. 5. It is not in dispute that on transfer of the jurisdiction from Mumbai to Pune, the Additional CIT, (TP) Pune has assumed jurisdiction and accordingly issued a notice dated 29.03.2012 to the Petitioner under Section 92CA of the Act relating to Assessment year 2009-2010. 6. However, the ACIT-10(1) Mumbai has issued the impugned notice on 30.03.2012 under Section 14 8 of the Act with a view to reopen the assessment for A.Y. 2005-06. The assessee by its letter dated 24.04.2012 objected to the impugned notice by specifically stating that pursuant to the order of CIT dated 22.11.2011, the ACIT-10(1) would have no locus standi or jurisdiction to issue the impugned notice dated 30.03.2012. As there was no reply, the present writ petition is filed inter alia on the ground that once the jurisdiction to assess/reassess the petitioner vested in the ACIT-10(1) is divested by the order of the CIT-10 Mumb....
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....012 which is passed without issuing a notice to the petitioner, without hearing the petitioner and which is uncommunicated to the petitioner. 13. Mr. Pinto, learned Counsel for the Revenue does not dispute that the corrigendum order was passed without issuing notice and without hearing the petitioner and further admits that the said corrigendum order was not served upon the petitioner till date and that he has tendered a copy of the said corrigendum order upon the counsel for the petitioner today in Court. However, he submits that once the corrigendum order was passed by the CIT-10 Mumbai on 27.03.2012 the ACIT-10(1) Mumbai was justified in issuing the impugned notice dated 30.03.2012. 14. In our opinion, the conduct of ACIT-10(1) Mumbai as well as CIT-10 Mumbai is highly deplorable. Once the jurisdiction to assess the petitioner was transferred by the CIT-10 Mumbai from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune by order dated 22.11.2011 it was totally improper on the part of ACIT-10(1) Mumbai to request the CIT-10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional issue. Making such a request on the part of ACIT-10(1) Mumbai to the ....
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....er without issuing any notice to the petitioner, without hearing the petitioner and admittedly uncommunicated to the petitioner till date, would have no legal existence and therefore the impugned notice dated 30.03.2012 based on the legally non-existent corrigendum order dated 27.03.2012 cannot be sustained." 32. Before us the ld. CIT, DR supported the AO's order by placing strong reliance on the decisions of the Hon'ble Delhi High Court in the cases of Abhishek Jain VsITO (supra) and SS Ahluwalia (supra). As observed earlier, these decisions were rendered in totally different factual context and therefore the proposition laid down in these decisions cannot be applied. In the case of Abhishek Jain (supra), the AO at Noida had issued notice u/s 148 on the basis of cash deposits made in ICICI Bank, Noida. In that case the fact that the assessee was regularly assessed in Delhi was not intimated to the AO at Noida nor did the assessee mention his PAN with the ICICI Bank. Even the assessee's address available with the bank was that of Noida. In this case it was not brought on record by the assessee that his case was transferred to Delhi by virtue of an order u/s 127 passed by t....
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....erially different from the facts involved in the appellant's case. One has to bear in mind that the text of any decision is rendered in the context of the facts which are before the Court. It is therefore settled legal proposition that the observations of the Hon'ble Court must be read in the context of the facts and the issues before the Hon'ble Court for consideration. The Hon'ble Supreme Court in the case of CIT Vs Sun Engineering Works (P) Ltd (198 ITR 297) has observed as follows: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a latter case, the Courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the ju....
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....icer in repudiation of return filed in response to a notice issued under Section 158-BC(a) proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in affirmative and in favour of the appellant and against the Revenue. The Revenue thereafter applied to this Court for special leave under Article 136, and the same was granted, and hence this appeal. 13. The only question that arises for our consideration in this batch of appeals is: whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a prerequisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961? 27. The case of the Revenue is that the expression "so far as may be, apply" indicates that it is not expected to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression "so far as may be, apply". In our view, where the assessing officer in repudiation of the return filed under Sec....