TaxTMI 
TaxTMI 
2023 (7) TMI 614
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....peals the assessees have raised identical grounds of appeal based on similar facts. They are, therefore clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. The facts of the case are taken from the file of Shri Satya Pal (ITA No. 3024/2017 and variances wherever any are separately dealt with in the relevant cases. 2. Originally the following common grounds in all these appeals except for the figures were raised:- "1. initiating proceedings u/s 147/148 of the Income-tax Act 1961 against the Appellant without any reasonable cause: 2. in sustaining and maintaining the proceedings u/s 147/148 of the act in the subject year: 3. in completing the assessment on the basis of such wrong action u/s 143(3) of the Act: 4. in computing the income u/s 143(3) of the Act at Rs. 3,23,43,523/- against the returned income of Rs. 2,77,890/-: 5. in computing Long Term Capital Gain on transfer of agricultural land done in an earlier year but charged during the year by assuming the cost of acquisition and indexation cost without any material before him; 6. confirming the computation of Long Term Capital Gain and additions made to the re....
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.... material necessary for their adjudication was already on record. In such circumstances the additional grounds were simply clarificatory and so merited admission and consideration. Per contra Ld. Sr. DR vehemently opposed the admission of the additional grounds on the reasoning that new issues were being raised in the guise of additional grounds. 5.1 We have considered the rival contentions and are of the view that the additional grounds as raised contest the jurisdiction assumed by the Assessing Authority framing the reassessment order. It is urged on behalf of the Appellant that it has been done so without the authority of law and in derogation of the jurisdiction originally vested in another Assessing Officer AO). Ground Nos. 1 and 2 as originally raised by the assessee state that the proceedings initiated u/s. 147/148 of the Act were without reasonable cause and that they have been sustained and maintained in the subject year by the lower authorities erroneously. The dispute obviously, therefore, is with reference to the authority of the Assessing Officer to initiate and maintain the proceedings u/s 147/148 of the Act. It is trite that the jurisdiction u/s147 of the Act has to....
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.... law and in derogation of the jurisdiction vested with the assessing officer, Salary Circle, Rewari. Upon the perusal of assessment record it has been observed that the Information in respect of Shri Satya Pal was available to the then Assessing Officer as NON PAN information but the address of the assessee was Village Nakhrola, Tehsil and Distt. Gurgaon which is under the jurisdiction of Gurgaon. The reasons were recorded by ITO Ward 4(5), Gurgaon and thereafter the assessee under the course of assessment proceedings submitted the Pan number of the assessee and an assessment was rightfully concluded by the jurisdiction AO i.e. IT Ward (5) Gurgaon. Subsequently the PAN is also transferred to Correct jurisdiction of ITO, Ward 4(1) Gurgaon". 5.5 Ld. Counsel submits that it is noteworthy that the Assessing Officer concedes that the correct jurisdiction was with ITO, Ward 4(1) Gurgaon and not with ITO, Ward 4(5) Gurgaon who had issued the notice u/s 148 of the Act. In any case the AO Ward 4(5) Gurgaon never had jurisdiction over the assessee. 5.6 Ld. Counsel submits that on Identical circumstances in the case of cousins of the Appellant namely S/Sh. Ram Kishan Kanwar Lal Ram Avtar an....
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.... the acknowledgements for filing the return are placed at pages 102 onwards. 7.2 Ld. Counsel submits that ignoring these facts and the past history of the case, the ITO, Ward 3(4) Gurgaon has issued notice u/s 148 of the Income-tax Act the Act) to the assessee (page 53 of the paper book). The precursor to this notice was the satisfaction note recorded by that Assessing Officer placed at pages 54-55 of the paper book where it mentions the status of the assessee as an individual. 7.3 Ld. Counsel submits that the ITO, Ward 3(4), Gurgaon did not have jurisdiction over the Appellant. The Appellant was being assessed under the jurisdiction of the Salary Circle, ITO. Ward 6. There was no order for the transfer of jurisdiction of the Appellant from the ITO, Ward 6, Gurugram, to the ITO, Ward 3(4), Gurgaon. The Hon'ble Tribunal had directed the Department to verify the averments of the assessee on the issue of jurisdiction. In the report dated 01.07.2022 the Ld. DR has not submitted any comments regarding this appellant although he had sent his comments with regard to his brothers Satyabir and Satya Pal who were in appeal on the same issue. 8. On the other hand, the ld. DR placed the....
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....er section 148 of the Act for re-opening of assessment of the assessees have no jurisdiction though the assessees were being assessed under the jurisdiction of Salary Circle. It was also the contention that there was no order under section 127 of the Act for the transfer of the jurisdiction of the assessees from Income Tax Officer, Salary Circle to Income Tax Officer, Ward 4(5), Gurgaon. 10. We also observe that the report sent by Income Tax Officer, Ward 4(5) Gurgaon in respect of jurisdiction in the case of Shri Satya Pal, the Income Tax Officer observed as under:- "1. The assessee has raised the ground that the ITO Ward 4(1), Gurgaon assumed the jurisdiction without any authority of law and in derogation of the jurisdiction as vested with the assessing officer, Salary Circle, Rewari. Upon the perusal of assessment records, it has been observed that the Information in respect of Sh. Satya Pal was available to the then AO as NON PAN information but the address of the assessee was Village Nakhrola, Tehsil and Distt. Gurgaon which is under the jurisdiction of Gurgaon. The reasons were recorded by ITO Ward 4(5) Gurgaon and thereafter the assessee during the course of assessment pr....
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....ngs or even to re-open a concluded assessment." (Underlining ours) 13. Similarly in the case of Dushyant Kr. Jain Vs. CIT [(2016) 381 ITR 428 (Del.)] the Hon'ble Delhi High Court held as under:- "16. The reasons given by the Department in its counter affidavit do not in any way explain the patent illegality in invoking the powers under Section 148 of the Act for reopening the assessment of the Assessee for AY 2007-08. The mere fact that the definition of an Assessing Officer in terms of Section 2[7-A) of the Act al includes a DCIT and other superior officers or an ITO of some other ward who may be vested with the relevant jurisdiction by virtue of orders issued under Section 120 (1) or Section 120 (2) of the Act will not make a difference to the above legal position. The reason is not far to seek. It is only the Assessing Officer who has issued the original assessment order dated 13th April 2009 for AY 2007-08 under Section 143 (3) of the Act who is empowered to exercise powers under Section 147/148 to re-open the assessment. This is because he alone would be in a position to form reasons to believe that some income of that particular AY has escaped assessment. This again cannot....
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....e 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/sITSC 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 2012(4) SCC 307 has held that it is settled position that conferment of jurisdiction is a legislative function and cannot be....
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.... 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 31" March 2016 the assessee intimated on 19th May 2016 that he had been regularly assessed in Delhi. Under these circumstances, the Hon'ble Delhi High Court held that it was mala fide on the part of the assessee not to intimate....
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....ourt 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 transferring the case to ITO, Gurugram, therefore, only the ITO, Delhi had jurisdiction to issue notice u/s 147 and the Income Tax Officer, Gurugram has no jurisdiction to issue notice u/s 148 to the assessee. 35. In view of the above discussion, we hold that the notice iss....
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....96) 220 ITR 446 has ruled that if the assessment proceedings of an assessee is to be reopened or if the income for the relevant assessment year is to be reassessed, it is the Income-tax Officer who could assess the same in the first instance who has jurisdiction to proceed in the matter u/s 147 read with Section 148 of the Act, unless of course the case had been transferred by a competent authority to another AO u/s 127 of the Act. No such transfer order u/s 127 of the Act has been produced before us to validate the jurisdiction as assumed by the ITO, Ward 3(5), Gurugram. It is thus clear that the assumption of jurisdiction to reassess the Appellant by the Gurugram AO is irregular and fallacious. In a similar situation the Delhi Bench of the Income tax Appellate Tribunal in the case of Attar Singh & Ors. ITA No, 2682/Del/2018 dated 08.08.2019 has held that the assumption of jurisdiction by a different AO at Gurugram who was other than the AO holding jurisdiction over the assessee for the relevant year was invalid. Respectfully following that order and with facts being similar we hold that the assumption of jurisdiction by the ITO, Ward 3(5), Gurugram in the case of the Appellant is....