TaxTMI 
TaxTMI 
2020 (12) TMI 858
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....ax Officer has no jurisdiction to assess the case of the appellant having declared income more than Rs. 15 lacs in the impugned year now under appeal in view of CBDT Instruction No. 1/2011 on the facts and in the circumstances of the case. 4. For that the Ld. CIT(A) is not justified to confirm the addition of Rs. 1,05,00,000/- towards un-explained investment in fixed deposits as made by the Ld. A.O. ignoring the relevant documents/papers submitted before him on the facts and in the circumstances of the case. 2. Further the assessee has filed revised grounds of appeal, which read as under:- 1. For that the assessment order dated 30.11.2017 as passed by the Income Tax Officer, Angul Ward, Angul (hereinafter referred to as) the "learned A.O." U/s. 144/147 of the I.T. Act., 1961 for the Asst. Year 2012-13 determining the total income at Rs. 1,45,72,740/- is not just and legal on the facts and in the circumstances of the case. 2. For that the initiation of proceeding U/s. 147 and issuance of notice U/s. 148 for the Asst. Year 2012-13 on the sole basis of survey report and without any conviction of the learned A.O. is illegal, without jurisdiction and ab-inilio-void on the facts a....
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.... Remarks 27/03/2017 148 30 days from the date of receipt of this notice Duly served by e-mail. No compliance. 12/07/2017 142(1) 20/07/2017 Duly served by e-mail. Appeared on 21.07.17 and submitted authorization only. 01/09/2017 142(1) 12/09/2017 Duly served by hand and through email. No Compliance 04/10/2017 142(1) 16/10/2017 Duly served by hand and through email. No compliance. 24/10/2017 142(1) 02/11/2017 Duly served by hand and through email. No compliance. 03/11/2017 142(1) 13.11.2017 Duly served by hand and through email. Filed a written submission. From the above table, it is clear that the assessee did not comply to the notice issued on different dates, therefore, the AO after recording reasons for completing the assessment u/s. 144 of the Act, completed the assessment in the manner provided as per Section 144 of the Act and proceeded with the case of the assessee. Further the AO called informatio....
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.... statement before the AO. Before the CIT(A), the ld. AR submitted additional evidence, which was sent to the AO for remand report. The AO submitted remand report which read as under:- "OBSERVATION OF THE A O.: During the course of remand hearing proceedings, notice for hearing was issued to the assessee vide this office letter dtd. 16.04.2019 to produce supporting evidences and explanations, if any, in support of his claim made before the Ld. CIT(A). The relevant portion of the notice is reproduced hereunder for better appreciation of the fad: "The CIT(A)-2, Bhubaneswar has directed the undersigned to submit a remand report in respect of your above appeal. You are hereby required to make compliance in terms of the additional evidence filed by you before the CIT(A)-2, Bhubaneswar alongwith a copy thereof and supporting documentary evidence. Your case is fixed for hearing on 29.04.2019 at 03.30 P.M. Please note that in case of non-compliance on your part, it will be presumed that you have no comments to offer and the remand report will be sent on the basis of material available on record." However, once again the assessee preferred noncompliance on 08.05.2019. Therefore, th....
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....s relied on by the assessee has been incorporated by the CIT(A) in his order. The CIT(A) after discussing the details in his order with regard to the legal issue raised by the assessee before the CIT(A), dismissed the appeal of the assessee by holding as under:- 4.3.1 I have carefully examined the assessment order, submissions of the appellant, remand report and rejoinder. Il is undisputed that for six assessment years immediately after Asst. Year 2012-13, the total income declared by the appellant is such that the assessing officer had jurisdiction over the appellant. Therefore, the assessing officer had jurisdiction even for assessment year 2012-13 even though the total income was Rs. 35,09,540/-. Moreover, the appellant appeared through his accountant and did not raise any objection what-so-ever to either the notice or the assessment proceedings. The appellant has participated in the assessment proceedings without raising any objection on the jurisdiction of the assessing officer. For the cases relied upon by the appellant, there is neither citation nor copy of judgment is enclosed and therefore no cognizance can be taken of these cases. Further, the provisions of Section 124(....
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....out by Investigation Wing of the Department. During the course of survey, three fixed deposits of Rs. 50 lakh each were noticed. A report regarding this was made by the Investigation Wing and sent to the Assessing Officer. The Assessing Officer found that in the balance sheet under the head 'deposits and investment' the appellant has shown an amount of Rs. 7,15,280/- and therefore he came to the conclusion that the fixed deposits, found during the course of survey are unexplained and he issued notice u/s. 148 of the Income Tax Act, 1961 after seeking approval from competent authority. Thus, it is clear that the Assessing Officer has applied his mind after receiving information from the Investigation, Wing. Therefore, contention of the appellant is rejected and the ground of appeal is dismissed. 6. Ground No. 3: In this rejoinder dated 23.07.2019 (paragraph 4) the appellant has submitted that the ground relating service of notice u/s. 143(2) of the Income Tax Act, 1961 may be treated as withdrawn. Accordingly, this ground is dismissed as withdrawn. On merits of the case, the CIT(A) upheld the action of AO. Accordingly, the CIT(A) dismissed the appeal of the assessee. 7....
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....of reason recorded on 17.03.2017 and issued notice u/s-148 on 27.03.2017 as mentioned in the assessment order. It is submitted that assessee has not received any notice issued u/s. 148 of the I.T. Act. (3) As per note sheet copy received by the assessee, it has been noted by the Ld A.O. that re-assessment proceedings has been initiated on the basis of survey conducted on 05.02.2015 and a survey report of DDIT (Inv). Copy of note sheet of reassessment proceedings is enclosed on Annexure-2. (4) The present re-assessment proceedings has been initiated after two years on the basis of survey conducted on 05.02.2015 that there is a undisclosed investment in fixed deposits to the tune of Rs. 1,50 Crore and also assessee has not shown any interest income as noted in the note sheet entry Dt. 17.03.2017. The "reason to believe" that income chargeable to tax has escaped assessment is based on 'Survey Report' alone and there is no independent satisfaction recorded by the A.O. that income chargeable to tax has escaped assessment. (5) As per return of income filed for asst. year 2012-13, assessee's returned income is Rs. 35,09,538/- and assessee comes under the jurisdiction o....
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....the I.T. Act is not legally sustainable and liable for deletion. 4. Objection to Assessment u/s-144 of the I.T. Act The assessee strongly objects to the assessment completed u/s-144 of the I.T. Act, as the assessee had made compliance on 12.07.2017 and 30.11.2017 during assessment proceedings as evident from the note sheet entry. The Ld A.O. hastily completed the assessment on 30.11.2017 without providing proper opportunity to the assessee although time was available up to 31.12.2018 to pass the assessment order. 10. On the other hand, ld. Sr. DR relied on the order of lower authorities and submitted that the assessee did not raise any objection as per Section 124(3)(b) of the Act within the prescribed time and participated in the assessment proceedings before the AO and he has also filed an affidavit which is placed on the paper book filed by the assessee. The AO has reopened the case on the basis of tangible materials available with him and in the balance sheet there is no any investment shown of Rs. 1 crores and no any interest income has been offered by the assessee in his return of income. The assessee did not raise any objection. The AO has sent number of notices through....
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....DT Instruction No. 211, dated 31.01.2011 fixing monetary limits for assigning the case to the AO which are placed in the paper book page No. 1, according to the CBDT Instruction in case of non-corporate returns, the Income Tax Officer is upto Rs. 15 lakhs, whereas the assessee has filed return of income is of Rs. 35,09,538/-. Ld. AR before us submitted that there was no service of notice issued u/s. 148 of the Act and the notice u/s. 143(2) of the Act has not been served to the assessee. It is very much clear that the AO while computing the total income has taken the income as per return at Rs. 35,09,538/- which is more than Rs. 15 lakhs as prescribed by the CBDT. For more clarification, we would like to reproduce the CBDT Instruction issued in this regard, which reads as under:- INSTRUCTION NO. 1/2011 [F. NO. 187/12/2010-IT(A-I)] Section 119 of the Income-tax Act, 1961-Instructions to subordinate authorities-Instructions regarding income limits for assigning cases to Deputy Commissioners/Assistant Commissioners/ITOs. INSTRUCTION NO. 1/2011 [F. NO. 187/12/2010-IT(A-I)], DATED 31-1-2011 References have been received by the Board from a large number of taxpayers, especially f....
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....7) 60 ITR (Trib) 0225 (Kolkata) while dealing with the similar issue, has observed that as per the CBDT Instruction the monetary limits in respect to an assessee who is an individual which falls under the category of 'non corporate returns' the ITO's increased monetary limit was upto Rs. 15 lacs; and if the returned income is above Rs. 15 lacs it was the AC/DC. So, since the returned income by assessee an individual is above Rs. 15 lakh, then the jurisdiction to assess the assessee lies only by AC/DC and not ITO. So, therefore, only the AC/DC had the jurisdiction to assess the assessee. The relevant observations of the Tribunal in paras 5 & 6 are as under:- 5. From a perusal of the above Instruction of the CBDT it is evident that the pecuniary jurisdiction conferred by the CBDT on ITOs is in respect to the 'non corporate returns' filed where income declared is only upto Rs. 15 lacs; and the ITO doesn't have the jurisdiction to conduct assessment if it is above Rs. 15 lakhs. Above Rs. 15 lacs income declared by a non-corporate person i.e. like assessee, the pecuniary jurisdiction lies before AC/DC. In this case, admittedly, the assessee an individual (non c....
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....s beyond the time limit prescribed for issuance of notice u/s. 143(2) of the Act. We note that the ACIT by assuming the jurisdiction after the time prescribed for issuance of notice u/s. 143(2) of the Act notice became qoarum non judice after the limitation prescribed by the statute was crossed by him. Therefore, the issuance of notice by the ACIT, Circle-27, Haldia after the limitation period for issuance of statutory notice u/s. 143(2) of the Act has set in, goes to the root of the case and makes the notice bad in the eyes of law and consequential assessment order passed u/s. 143(3) of the Act is not valid in the eyes of law and, therefore, is null and void in the eyes of law. Therefore, the legal issue raised by the assessee is allowed. Since we have quashed the assessment and the appeal of assessee is allowed on the legal issue, the other grounds raised by the assessee need not to be adjudicated because it is only academic. Therefore, the additional ground raised by the assessee is allowed. 14. The Delhi Bench of the Tribunal also in the case of Attar Singh Vs. ITO, ITA No. 2682/Del/2018 along with other appeals, order dated 08.08.2019, has held as under:- 26. We have consid....
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....rity or illegality. 27. It is the submission of the ld. counsel for the assessee that the Assessing Officer, Gurgaon was intimated vide letter dated 4th May, 2015 that the original return was filed on 6th March, 2013 with the Assessing Officer of Delhi and the Assessing Officer, Gurgaon could have verified as to which place the PAN is linked with. It is also the argument of the ld. counsel for the assessee that the case of the assessee was not transferred from the Assessing Officer of Delhi to Assessing Officer of Gurgaon by passing an order u/s. 127 that the Assessing Officer, Gurgaon did not invoke the provisions of section 124(2) which is mandatory and which will get precedence over section 124(3). It is also the argument of the ld. counsel for the assessee that the assessee is not required to raise any objection u/s. 124(3) and such objection can be raised at any time. Similarly, it is also his argument that the issue of lack of jurisdiction can be raised at any stage and even in appeal proceedings and the jurisdiction cannot be conferred by consent or waiver and notice u/s. 148 can be issued only by the Assessing Officer having jurisdiction over the assessee who is regularly....
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.... 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, ealizing 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 same city, locality or place. (4) The transfer of a case under Sub-sectio....
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....der no Assessing Officer other than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to reopen a concluded assessment. It is common ground between the parties that the file of the petitioner pertaining to the assessment year 1988-89 has not been transferred from the jurisdiction of the Assessing Officer, Pune, to the Income-tax Officer, Jalandhar (respondent No. 2 herein). As a matter of fact, no order of transfer has been passed by the competent authority under Section 127 of the Act for any assessment year and, therefore, the proceedings for reassessment initiated by respondent No. 2, are wholly without jurisdiction. We have, therefore, no hesitation in quashing the impugned notice dated March 13, 1995 (annexure P-4 with the writ petition), issued by respondent No. 2 under Section 148 of the Act. 6. It was also contended on behalf of the petitioner that respondent No. 2 did not have sufficient material before him for reopening the assessment proceedings and that it was a mala fide exercise of the power since it was being exercised at the behest of the father of the petitioner's son-in-law. Sin....
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.... on a mere change of opinion. Further, in terms of Section 151 of the Act such a move will have to have the prior approval of the CIT. Under the scheme of the Act, if a superior officer forms an opinion that the original assessment order is prejudicial to the interests of the Revenue, recourse can be had to Section 263 of the Act. In any event the question of an ITO who is not the AO who passed the original assessment order under Section 143(3) of the Act for particular AY, exercising the powers under Sections 147/148 of the Act to re-open that assessment does not arise. 17. Consequently, this Court quashes the notices dated 14 th March 2014 and 23rd June 2014 as well as the order dated 28 th January, 2015 passed by the DCIT rejecting the objections of the Petitioner. The writ petition is allowed ITA Nos. 2682, 2913, 2683, 3112, 2684, 2700/Del/2018 34 and the application is disposed of in the above terms but, with no order as to costs." 30. Since, admittedly, in the instant case, the assessee was regularly filing his return of income at Delhi with his PAN No. linked with the Assessing Officer at Delhi and he was residing at PS, Dwarka-Sector-9, South West District, New Delhi, i....
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....efore the Assessing Officer and not having been raised before him, the appellant had waived its rights to raise the same. The appellant having submitted to the jurisdiction of the Assessing Officer cannot now challenge the same. This is not entirely correct. It is well settled that mere acquiescence will not give jurisdiction to an authority who has no jurisdiction. In fact this Court in CIT V/s. ITSC reported in 365 ITR 87 has held that mere participation by a party in proceedings without jurisdiction will not vest/confer jurisdiction on the authority. Reason to believe that income chargeable to tax has escaped assessment is a jurisdictional fact and only on its satisfaction does the Assessing Officer acquire jurisdiction to issue notice. Thus this lack of satisfaction of jurisdictional fact can never confer jurisdiction and an objection to it can be raised at any time even in appeal proceedings. The mere fact that no objection is taken before the Assessing Officer would not by itself bestow jurisdiction as the Assessing Officer. Such an objection can be taken in appeal also. Moreover, the Apex Court in its recent decision in Kanwar Singh Saini V/s. High Court Of Delhi reported in....
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....g the decision of the Hon'ble Punjab & Haryana High Court, which is the jurisdictional High Court in view of the assessment order being passed by the ITO at Gurgaon, we hold that the Assessing Officer, Gurgaon had no jurisdiction over the assessee to issue notice u/s. 148 and consequently pass the order u/s. 147/143(3). Therefore, the notice issued u/s. 148 is quashed. Since the reopening is quashed the subsequent orders passed on account of such reopening are also quashed. 33. So far as the decisions of the Hon'ble Delhi High Court relied upon by the ld. DR, are concerned these decisions in our opinion are not applicable to the facts of the present case. In the case of Abhishek Jain (supra), we find the Assessing Officer, Noida had issued notice u/s. 148 on the basis of deposits made in cash in ICICI Bank, Noida. The fact that this assessee was regularly assessed in Delhi was not intimated to the Assessing Officer at Noida and the assessee had not mentioned his PAN in the ICICI Bank and the address of the assessee was also in Noida. After the completion of the time barring period which is 31st March, 2016, the assessee intimated on 19th May, 2016 that he had been regular....
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....ee. In any case, since the Assessing Officer of Gurgaon has passed the ITA Nos. 2682, 2913, 2683, 3112, 2684, 2700/Del/2018 39 assessment order, who falls under the jurisdiction of Punjab & Haryana High Court, therefore, the decision of Hon'ble Punjab & Haryana High Court will prevail over the decision of the Hon'ble Delhi High Court. If the assessment proceedings already completed by Assessing Officer are to be reopened or if the income for the relevant assessment year is to be reassessed, it is the ITO who assessed the same in the first instance has the jurisdiction to proceed in the matter u/s. 147 read with section 148 unless the case has been transferred by a competent authority to another Assessing Officer u/s. 127 and, in that event, latter will have jurisdiction to proceed. Thus, in the absence of any transfer order, no other Assessing Officer than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to reopen a concluded assessment. Since in the instant case the assessee was regularly filing his return with ITO at Delhi and since no transfer order u/s. 127 of the IT Act, 1961 was passed t....
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.... U.P., Lucknow & Ors. AIR 1986 All. 132; A.R. Antulay v. R.S. Nayak & Anr., AIR 1988 SC 1531; Union of India & Anr. V. Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement Trust, Karnal v. Prakash Wanti (Smt.) (Dead) & Anr., (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. & Ors., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Kesar Singh & Ors. V. Sadhu, (1996) 7 SCC 711; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213; and Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC 2484). When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. (See: Doe d. Rochester (BP) v. Bridges, 109 ER 1001; Barraclough v. Brown, 1897 AC 615; The Premier Automobiles Ltd. v.....
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....CBDT are legally binding on the Revenue. The power of the CBDT are wide enough to enable it to grant relaxation from the provisions of several sections enumerated in clause (a) to Section 119(1) of the Act. 18. In view of the above judicial decisions as well as the factual aspects of the matter, we find that the assessee has filed his return of income for the year under consideration before the ACIT, Circle-1, Bhubaneswar, which is clear from the copies of ITR filed for the assessment year 2012-2013 and the same are placed in the Annexure-1 at pages 87 to 90 filed in the form of paper book before us, however, the reassessment has been completed by the ITO, Angul Ward, Angul. When the return of income filed by the assessee is more than Rs. 15 lakhs, the ITO has no jurisdiction to frame the reassessment as per the CBDT Instruction No. 1/2011, dated 31.01.2011. The ITO/AO should have transferred the case to the Assistant Commissioner/Deputy Commissioner, who is having well jurisdiction to frame the reassessment as per the above CBDT Instruction for the relevant assessment year under consideration. This fact was also uncontroverted by the ld. DR before us. It is also not the case of t....