TaxTMI 
TaxTMI 
2022 (8) TMI 515
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....cannot be held to be legally valid as the same was not passed by the ACIT-1, Bareilly who initiated the regular assessment proceedings by issuing notice u/s 143(2) dated 24.09.2018. 3. BECAUSE, without prejudice to the aforesaid grounds, the assessment order dated 20.12.2019 passed by ITO-1(1), Bareilly-New is without jurisdiction as no order u/s 127 of the Act has been passed for transferring the case from ACIT- 1, Bareilly, who initiated regular assessment proceedings by issue of notice u/s 143(2) dated 24.09.2018, to the ITO-1(1), Bareilly-New. 4. BECAUSE the Id. CIT(A) has erred in law and on facts in confirming the addition of Rs.27,01,500/- made u/s 69A of the Act on the alleged ground that the appellant failed to explain the source of cash deposited in the bank account of the appellant during demonetization, period. 5. BECAUSE, contrary to the observation of id. CIT(A), the appellant had furnished cogent evidences before the authorities below which went to conclusively prove the availability of sufficient cash in hand from earlier withdrawals out of which the appellant had deposited the sum of Rs.27,01,500/- in his bank account and as such the id. ....
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....eal of the assessee. Aggrieved, the assessee is in appeal before us. 4. At the outset, the ld. Counsel for the assessee inviting my attention to Grounds no. 1 to 3, submitted that the notice, dated 24.9.2018 under section 143(2) of the I.T. Act (APB:32 & 33) was issued by the ACIT, Circle-1, Bareilly, who, in fact, was not vested with the jurisdiction of the Assessing Officer in the case of the assessee, which is apparent from the fact that the Assessing Officer (DCIT) himself transferred the file to the ITO, Ward 1(1), Bareilly, vide letter dated 16.10.2018 (APB:34); that therefore, the notice dated 24.9.2018, issued by the DCIT, is illegal and the assessment order dated 20.12.2019, which has been passed by the ITO-1(1), Bareilly in pursuance of the said notice, is bad in law; that even if the DCIT, Circle-1, Bareilly is held to be vested with the jurisdiction in the case of the assessee, then also, the assessment order passed by the ITO, Ward 1(1), Bareilly cannot be held to be legal, as the same has not been passed by the DCIT, Circle-1, Bareilly; that in the absence of any order under section 127 of the Act, passed by the Commissioner of Income Tax for transferring the case ....
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....rder be quashed as being passed by an Assessing Officer having no jurisdiction. 7. I have heard the rival parties and have gone through the material placed on record. The assessee has taken up the jurisdictional issue and has argued that the Assessing Officer who had issued notice under section 143(2) had no jurisdiction over the assessee. In this respect, I find that it is an undisputed fact that notice under section 143(2) was issued by DCIT, Circle- 1, Bareilly, a copy of which is placed at APB:32&33. It is also undisputed fact that, vide letter dated 16.10.2018, the DCIT, Circle-1, Bareilly, had had transferred the case to ITO, Ward 1(1), Bareilly. It is also an undisputed that after the receipt of the case file from the DCIT, Circle-1, Bareilly, the ITO, Ward 1(1), Bareilly did not issue any notice under section 143(2) of the Act. The above facts prove that notice under section 143(2) dated 24.9.2018 was issued by the DCIT, Circle-1, Bareilly, who did not have jurisdiction over the assessee and that is why the case was transferred to the Assessing Officer, who had passed the assessment order. The argument of the ld. D.R. was that since the Range was headed by the same CIT, ....
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....e must be terminated by that authority only. It is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible in a situation where both the authorities jointly exercise power but it certainly 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 Addl. CIT had exercised the power of an AO, he was required to continue to exercise that power till his jurisdiction in the matter was o....
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.... Page 3. Therefore from the above facts and circumstances, it become apparent that the first Assessing Officer who issued notice on 30.09.2014 had no jurisdiction to assess the assessee and, therefore, he transferred the case to DCIT-2, Kanpur who though had jurisdiction to assess the assessee but issued notice u/s 143(2) only on 07.09.2015 by which date period for issuance of notice had expired. We further find that no order u/s 127 of the Act was passed by the Assessing Officer to transfer the case from Kanpur-4 to Kanpur-2. The Assessing Officer who had jurisdiction to assess the assessee issued notice u/s 143(2) only on 07.09.2015 which was beyond the prescribed time limit for issuance of such notice. Therefore, the notice issued u/s 143(2) by DCIT, Kanpur-2 beyond the statutory period of time is without jurisdiction and therefore, any order passed in consequence of such notice is also liable to be quashed. Therefore, we are in agreement with the argument of Ld. AR. Accordingly, additional grounds of appeal 5 to 8 are allowed. Since we have decided the legal issues, in favour of assessee the grounds on merits of the case have become infructuous and have not been adjudicated." ....
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.... by consent of parties." 7. In Benarsi Silk Palace Vs. Commr, of Income Tax [1964] 52 ITR 220 (All), this Court held: "Jurisdiction could be conferred only by statute and not by consent and acquiescence. Since jurisdiction is conferred upon Income Tax Officer to proceed under Section 34 (1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence." 8. In Kali Das Wadhwani & Anr. Vs. Jagjiwan Das and another 1985 (2) ARC 533, this Court observed as under: "It is well settled that a jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity." 9. In Sardar Hasan Siddique Vs. State Transport Appellate Tribunal,....
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.... General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] 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, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner],- (a) where the [Principal Director General or Director General] or [Principal Chief Commissioner, Chief Commissioner or Principal Commissioner or Commissioner] to whom such Assessing Officers are subordinate are in agreement, then the [Principal Director General or Director General] or [Principal Chi....