TaxTMI 
TaxTMI 
2022 (3) TMI 218
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....ITA NO.7514/MUM/2011,A.Y. 2007-08: 2. Shri J.D.Mistry, Sr. Advocate appearing on behalf of the assessee submitted, that at this stage he is confining his submissions only to the legal issue raised in additional grounds of appeal challenging validity of final assessment order passed u/s 143(3) r.w.s. 144C of the Income Tax act, 1961 ( in short ' the Act'). The ld . senior Counsel asserted that the final assessment order is bad in law as the same has been passed by Additional Commissioner of Income Tax (Addl.CIT) without jurisdiction. The ld.Counsel submitted that this legal ground has been raised as additional ground of appeal. The ld.Counsel for the assessee contended that since no new documentary evidence is required to be adduced for adjudication of the legal issue raised by way of additional ground of appeal, therefore, the legal ground raised as additional ground should be admitted. To support his contention for admission of additional legal ground, the ld.Counsel placed reliance on various decisions including: (i) Jute Corporation of India Ltd. vs. CIT, 187 ITR 688 (ii)Ahmedabad Electricity Company Ltd. vs.ACIT, 199 ITR 351(Bom) (iii)CIT vs. Pruth....
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....sessee narrating the facts of the case submitted that the assessee filed its return of income for the Assessment Year 2007-08 on 31/01/2007. The return of the assessee was processed and intimation under section 143(1) of the Act signed by Assistant Commissioner of Income Tax (ACIT) was received by the assessee. Thereafter, the assessee filed a revised return of income on 30/03/2009. The assessee received notice issued u/s 143(2) of the Act dated 22/06/2009 from Addl.CIT. Against the revised return of income intimation u/s. 143(1) of the Act dated 22/03/2010 was received by the assessee duly signed by ACIT. Thereafter, the assessee received a communication dated 22/07/2010 from Addl. CIT for fresh hearing u/s. 143(3) r.w.s. 129 of the Act. A questionnaire dated 01/10/2010 was issued to the assessee by Addl.CIT. The draft assessment order dated 28/12/2010 for the impugned assessment year was framed by Addl.CIT. After the direction of the Dispute Resolution Panel (DRP) final assessment order u/s. 143(3) r.w.s. 144C of the Act dated 20/10/2011 was passed by the Addl. CIT. The ld.Counsel for the assessee submitted that the Addl.CIT was not the competent authority to pass the assessment ....
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.... Tata Sons Limited ( ITA Nos. 193, 3745 & 3658/M/2006) (Mum- Tribunal) 7. Tata Sons Limited ( ITA Nos.2519 & 2639/M/2009) (Mum-Tribunal) 8. Tata Sons Limited (ITA Nos.5090 & 5572/M/2012) (Mum- Tribunal) 9. Tata Sons Limited (ITA Nos.4893,2545,4543 & 2487/M/2012) (Mum- Tribunal) 10. Shri Kishore Vithaldas ( ITA Nos. 7397/M/2016 & 5661/M/2017) (Mum- Tribunal) 11. Tata Chemicals Limited (ITA Nos. 915 to 918/M/2012, 869 to 872/M/2013) (Mum -Tribunal) 12. Tata Power Co. Ltd. (ITA Nos. 3037 & 3038, 3081 & 3082/M/2009, 2056 & 2057/M/2012) (Mum- Tribunal) 13. Indian Hotels Company Ltd. ( ITA Nos.8570/M/2011, 565/M/2013, 2049/M/2014, 1910/M/2014) (Mum- Tribunal) The Tribunal in all the aforesaid cases taking a consistent view admitted similar additional ground of appeal holding it to be legal issue and has thereafter, allowed the said ground holding that the Addl.CIT has no jurisdiction to pass the assessment order in the absence of authorization from the PCIT. The ld.Counsel for the assessee asserted that since the facts in the present appeal on this legal issue are identical, the draft and the final assessment order are liable to be quashed ....
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....me Tax, lacked jurisdiction to exercise powers and functions of Assessing Officer since he was duly empowered u/s.120(b)(4) of the Act to perform functions of Assessing Officer 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 read with (c) Corrigendum No. MCI/HQI/Jurisdiction/2001-02 dated 27/08/2001 (enclosed herewith as Annexure -"B"). 5. The assessee has relied on various decisions of Hon'ble ITAT in its own case in ITA No. 7071/M/2005, MA No.785/M/2017, ITA Nos. 3972/M/2007, 2891& 1015/M/2010 & 1109/M/2008, ITA No.4452&3460/M/2011, 8769/M/2010 and various other group companies. The assessee in the above said AY's has relied on the decision in the case of M/s. Mega Corporation Ltd.- Vs. Addl.CIT (ITA No. l02/Del/2014) dated 22/09/2015 in which the ITAT has held- that Addl. Commissioner of Income-tax had not been empowered to perform the duties of the Assessing officer as per the CBDT's Notification No. 267of 2001 dated 17/09/2001. The case law so relied upon by the assessee [Mega Corporation Ltd, vs. Addl. CIT Range - 6, New Delhi in ITANo102/Del/2014 dated 22.09.2015] was reverse....
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....dicating the issue in favour of assessee has already considered the notifications referred to by the ld.Departmental Representative in the written submissions. And the decision rendered in the case of Regional Oil Seed Growers Co-operative Society Union Ltd. vs. JCIT (supra) has also been considered and distinguished. The Tribunal held that the notifications referred by the Revenue are not in context of delegation of powers authorizing Addl.CIT to perform the duties of Assessing Officer. 7. We have heard the submissions made by rival sides on admission of additional grounds raised by the assessee, as well as, on merits of the legal issue raised in the additional grounds of appeal. 8. The assessee in additional ground has challenged the jurisdiction of Addl. CIT to pass the assessment order in the absence of any order from the Board and subsequent authorization by the concerned CIT/PCIT u/s. 120(4)(b) of the Act. The contention of the assessee is that the additional ground raised is a legal issue, whereas the stand of Revenue is that the additional ground is a mixed question of law and fact; and has been raised at belated stage. A perusal of the ground raised in the additio....
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....sence of a valid order under section 120(4)(b) as well as section 127(1) of the Act could not have exercised his power as an Assessing Officer to pass the impugned assessment order. Accordingly, the impugned assessment order passed being wholly without jurisdiction is void ab initio, hence, deserves to be annulled / quashed. Accordingly, we do so." 10. The ld. Departmental Representative has vehemently relied on some notifications in his written submissions which purportedly authorize Addl. CIT to discharge the duties of Assessing Officer. We find that the ld.Departmental Representative while making his submissions in ITA No.7071/M/2005(supra) had placed reliance on same set of notifications. The Co-ordinate Bench after examining the notifications referred to by the ld. Departmental Representative held that none of the notifications referred to by the Department validly authorize or empower the Addl.CIT to act as an Assessing Officer. The relevant extract of the findings of the Tribunal on the notification issued by the Department and referred to during the course of submissions are reproduced herein below: "15.At this stage, we propose to deal with each of the aforesai....
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.... 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(4)(b) directing JCIT/JDIT to exercise powers and functions of the Assessing Officer. It does not mention Addl. CIT / Addl. Director of Income Tax. In any case of the matter at the time of issuance of this notification, Addl. CIT was not treated as an Assessing Officer either under section 27(A) or under section 120(4)(b) as the amendment including Addl. CIT, as an Assessing Officer was brought to the statutory Act by Finance Act, 2007, though, with retrospective effect from 1st April 1994. Therefore, under no circumstances, the Board notification dated 17th September 2001, can be said to have conferred the jurisdiction of assessing officer on Addl.CIT.....
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..../10/2019, wherein similar additional grounds challenging the jurisdiction of JCIT for passing the assessment order was raised, after considering the decision of Hon'ble Delhi High Court in the case of PCIT vs Mega Corporation Ltd. (supra) concluded that there is no application of the aforesaid decision to the facts of the present case. The relevant extract of the findings of Co-ordinate Bench on this issue are reproduced herein under: "16. Coming back to the case laws relied upon by the Ld. DR. The Ld. DR relied upon Hon'ble Delhi High Court decision in the case of Pr. CIT Vs. Mega Corpn., Ltd in ITA No. 128/2016 vide order dated 23,02.2017 and submitted that the ITAT, while deciding the issue in the case of TATA Sons Ltd., has relied upon the decision of ITAT Delhi in the case of Mega Corporation (supra), but said decision of the ITAT has been reversed by the Hon'ble Delhi High Court and held that once an order is passed u/s 120 (1) and (2) by virtue of Sec. 2(7A) of the Act, then there is no requirement of separate order u/s 120(4)(b) of the Act. We find that the matter before the "Hon'ble Delhi High Court in the said case was whether the DCIT who passed ....