TaxTMI 
TaxTMI 
2022 (5) TMI 1528
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.... to the root of the matter, therefore, the said ground was heard first. 4. It was submitted by the ld. AR that for the assessment year 2010-2011, the assessee had filed his return of income declaring Nil income. A notice u/s.143(2) of the Act had been issued by the ACIT, Rourkela Circle, Rourkela fixing the date of compliance on 19.10.2011. Subsequently, the JCIT, Rourkela Range, Rourkela, vide an order dated 01.10.2012 for the purpose of completion of the assessment only had transferred the case of the assessee for the assessment year 2010-2011 to the ITO Ward-2, Rourkela. The copy of the order reads as follows :- 5. Consequent to the order of the JCIT, the ITO Ward-2, Rourkela issued notice to the assessee u/s.142(1) of the Act. There was substantially non-compliance to any of the notice by the ITO Ward-2, Rourkela, this resulted into the completion of assessment u/s.144 of the Act on 22.01.2013. The assessee's appeal had been filed before the CIT(A), who had deleted part of the additions and confirmed substantial portion of the addition made on the basis of the remand report obtai....
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....owers and perform all or any of the functions conferred or assigned to such authority by or under this Act as per the directions of the Board i.e., Central Board of Direct Taxes. As per Explanation to sub-section(1), the power can also be exercised, if directed by the Board, by authorities higher in rank. Under sub-section (2), the Board can issue orders in writing for exercise of power and performance of functions by the Income-tax Authorities and while doing so in terms of sub-section (3), the Board can take into consideration and have regard to the four-fold criteria namely, territorial area; persons or classes of persons; incomes or classes of income; and cases or classes of cases. Thus, the Act does not authoritatively confer exclusive jurisdiction to specific Income Tax Authority. It is left to the Board to issue directions for exercise of power and functions taking into consideration territorial area, class/types of persons, income and case, and Board have been given wide power and latitude. The said Section by necessary implication postulates and acknowledges that multiple or more than one Assessing officer could exercise jurisdiction over particular assessee. Concurrent ju....
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....ne month from the date on which it was served with a notice u/s.142(1) or 143(2) or after the completion of the assessment whichever is earlier. In the present case, the appellant AOP had not challenged the jurisdiction of [TO, Ward-2, Rourkela within a month from the date it was served with a notice u/s.142(1) of the Act. Hence as per section 124(3)(a), it can't raise this issue before Hon'ble ITAT. 2. This issue is also covered in the favour of the Revenue by the judgement of Hon'ble Kolkata High Court in the case of Elite Pharmaceuticals vs. ITO (73 taxmann.com 69). The findings of the Hon'ble Kolkata High Court in para-10, 11, 12 & 13 are reproduced as under: "10. We have not been impressed by the submissions advanced by Mr. Dutt. 11. The objection raised by the appellants was in es sence an objection to the territorial jurisdiction of the assessing officer who had issued the notice under Section 148 and before that had conducted various proceedings including search, seizure and survey. Sub-section 3 of Section 124 precludes an assessee from questioning the jurisdiction of an assessing officer except in the manner laid down th....
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.... the expressed tenor and terms of the provisions clarify that such objections are to be articulated at the threshold or at the earlier points of time. The two points of time. specified in section 124(3)(a) are as under: (i) Within one month from the date of service of notice or; (ii) After completion of assessment - whichever is earlier." 17. We are in agreement with the view expressed by the Delhi High Court. In that view of the matter, the appeal fails and is dismissed". 3. Similar view was taken by the Hon'ble Chennai Bench in the case of Karandhai Tamil Sangam vs. JCI (97 taxmann.com 50) by holding as under in para-5 of the order: 5. We have considered the rival submissions. The facts in the present case clearly shows that the notice u/s.148 of the Act issued by the JCIT, Thanjavur Range, Thanjavur on 12.08.2010 was served on the assessee on 12.08.2010. This is evident from page-13 of the assessment order. Notice u/s.142(l) was served on the assessee on 08.03.2011. Admittedly, assessee has not challenged the jurisdiction by intimating the Id. Assessing Officer as required u/s.124(3)(b) of the Act within the time provided therein. It ....
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....zers vs. Addl. CIT (25 taxmann.com 464). 5. With due respect, the judgement of Hon'ble Odisha High Court in the case of Kalinga Ispat Udyog vs. Sales Tax office dated 20.09.1995 is not applicable in the present case because there is a specific provision in the Income Tax Act (section 124(3) which shall govern the present case. 6. Jurisdiction is an administrative issue and not a subject matter for the appeal. The Hon'ble Delhi High Court in the case of Abhishek Iain (405 ITR 1) has held in para-If that Section 120 by necessary Implication postulates and acknowledges that multiple or more than one Assessing officer could exercise jurisdiction over particular assessee. Concurrent jurisdictions are therefore not an anathema but an accepted position under the Act. The term "jurisdiction" in Section 120 of the Act has been used loosely and not in strict sense to confer jurisdiction exclusively to a specified and single assessing officer, to the exclusion of others with concurrent jurisdiction. It would refer to "place of assessment", a term used in the Income Tax Act, 1922. Sub-section (5) to Section 120 of the Act again affirms and accepts that there ....
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....urther held in the said judgement that the provision of section 127 of the act does not speak of transfer of jurisdiction but transfer of case. Expression "concurrent jurisdiction" is mentioned in sub-section (3) to Section 127 of the Act. The provisions indicate that Sections 120, 124 and 127 of the Act recognizes flexibility and choice, both with the assessee and the authorities i.e. the Assessing Office before whom return of income could be filed and assessment could be made. The Assessing Officer within whose area an assessee was carrying on business, resided or otherwise income had accrued or arisen ( in the last case, subject to the limitation noticed above) has jurisdiction. Similarly, the Assessing Officer also has authority due to class of income or nature and type of business. The Act, therefore, recognized multiple or concurrent jurisdictions. Provisions of Section 124 ensure and prevent two assessments by different assessing officers, having or enforcing concurrent jurisdiction. There cannot be and the Act does not envisage two assessments for the same year by different officers. (Reassessment order can be by a different officer)." 8. Being an enactment aimed a....
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....d u/s 143(2) was claimed legally valid, thereafter the ITO, Ward- 2, Rourkela could validly proceed to complete the assessment by only issuing a notice u/s 142(1) of the Act. The proceedings which the ACIT, Rourkela Circle, Rourkela undertook were legally valid according to which the successor AO could proceed with the assessment from the stage at which predecessor AO had left the proceedings. The legal plea raised by the assessee regarding challenge of jurisdiction does not have legs to stand and therefore deserves to be rejected. 8. In reply, the ld. AR drew our attention to the decision of the Hon'ble Supreme Court in the case of Saurav Jain and Ors., reported in AIR 2021 SC 3673, wherein the Hon'ble Supreme Court in paras 31 to 34 has held as under :- 31 In Chandrika Misir v. Bhaiya Lal MANU/SC/0328/1973 : (1973) 2 SCC 474, this Court was hearing a special leave petition concerning the possession of parties over the suit property which was the subject of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951). While adjudicating on whether the suit was barred by limitation, Justice DG Palekar, speaking for a two Judge bench, observed that the civil court d....
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....firmation of the death sentence of a number of accused persons by the High Court was under challenge before this Court. Chief Justice Gajendragadkar, speaking for a four judge Bench of this Court, observed that: "11. We are not prepared to accept Mr Sawhney's argument that even if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged. It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before the trial court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. I....
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.... to any other officer under his range. To this, though he mentioned that there is a CBDT Circular of 2001 but he was not in a position to place the Circular immediately and he needed more time. This request for time has been denied by this Bench as this legal ground has been raised as early as 1st March, 2021 and subsequently number of postings has also been done. 12. Coming to the decision quoted by the ld. AR of the assessee, more specifically, the decision of the Hon'ble Supreme Court in the case of Saurav Jain (supra), it is a decision in respect of civil matters, it does not relate to an income tax proceedings. However, all decisions of the Hon'ble Supreme Court lay down binding precedence in respect of the law. It is an accepted and well-recognised principle of law that an assessee or an appellant or a litigant is entitled to raise a question of law challenging fundamental jurisdiction at any stage for the first time including before the Hon'ble Apex Court subject to the condition that no fresh evidence needs to be examined and such question of law goes to the root of the matter. Coming to the decision relied upon by the ld. AR of the assessee in the case of Shri Bijoy Kis....
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....ve to be cut. However, as valid proceeding had been initiated by the ACT, Rourkela Range, Rourkela, the assessment order is being set aside and the assessment is restored to the file of ACIT, Rourkela Circle, Rourkela for completion of the assessment insofar as the proceedings had been validly initiated but the proceedings had been disposed off by an officer having no jurisdiction. This does not mean that proceedings came to an end. The proceedings can validly be completed and finalized by an officer who has valid jurisdiction and who had initiated the proceedings. This view of ours find support from the decision of the Hon'ble Jurisdictional High Court in the case of Shivkumar Agrawal [1990] 186 ITR 734 (Orissa). 15. Under such circumstances, the assessment order passed by the ITO, Ward-2, Rourkela in the case of the assessee for the A.Y.2010-2011 is set aside. Consequently, the order of the ld. CIT(A), who was adjudicated the appeal against the said assessment order passed by the ITO Ward-2, Rourkela, is also set aside. As the proceedings have been validly initiated by the ACIT, Rourkela Circle, Rourkela in the case of the assessee for the assessment year 2010-2011, the issues....