TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1449
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....n issue stating that the ld. Additional CIT who had passed the assessment order was not conferred jurisdiction and cannot perform the functions of the Assessing Officer in the absence of an order issued to him u/s. 120(4)(b) of the Act. 2.1. Since this issue goes to the root of the matter, we deem it fit to address these additional grounds. We find that the facts that are required for adjudication, all these additional grounds are already on record and this being a legal issue, these additional grounds are admitted and taken up for adjudication by this Tribunal. ITA No.1975/Mum/2014 (A.Y.2009-10) 3. For the sake of better understanding of facts the following chronology of dates and events would be relevant for A.Y.2009-10. Sr. No. Date Particulars 1. 26/08/2010 Notice dated 26.08.2010 u/s 143(2) of the Act issued by the Assistant Commissioner of Income-tax, Circle - 1, Thane ('ACIT') 2. 23/06/2011 Notice dated 23.06.2011 u/s 143(2) and 142(1) of the Act issued by the ACIT 3. 07/12/2011 Notice dated 07.12.2011 u/s 142(1) of the Act issued by the ACIT 4. 21/12/2011 Notice dated 21.12.2011 u/s 142(1) of the Act issued by the ACIT 5. 18/01/2012 Notice date....
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....t that arises for our consideration in both these appeals are that the assessee has raised additional grounds of appeal challenging the jurisdiction of the Addl. CIT/JCIT for conducting the assessment proceedings and passing the draft / final assessment order in the absence of an order issued in writing u/s. 120(4)(b) of the Act pursuing the Addl. CIT/JCIT with the powers to perform the functions of "the Assessing Officer" under the Act. We further find that the assessee has also challenged the jurisdiction of the Addl. CIT/JCIT in the absence of order transferring the jurisdiction from the Asst. Commissioner to Addl. CIT / JCIT in accordance with Section 127 of the Act. For this purpose, it would be relevant to reproduce the definition of the expression "Assessing Officer" as defined in Section 2(7A) of the Act which reads as under:- "(7A) "Assessing Officer" means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (i) or sub- section (2) of section 120 or any other provision of this Act, and the Additional Comm....
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....the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases, shall be exercised or performed by an Additional Commissioner or an Additional Director or a Joint Commissioner or a Joint Director, and, where any order is made under this clause, references in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply." 3.4. A bare reading of the aforesaid provisions clearly shows that the CBDT i.e. the Board has the power to empower the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner to authorise the Additional Commissioner or Additional Director or Joint Commissioner or....
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....f an Assessing Officer as per the Act. Therefore the jurisdictional issue is a pure question of law and deserves to be admitted. A similar argument urged by the Department, has been dealt by the ITAT in the following cases while admitting similar additional grounds as that in the present case > Tata Sons Ltd. (ITA No. 4497/Mum/2005) (Para 3.12 & 3.13, Pg. 9) > Tata Communication Ltd. (ITA No. 7071/Mum/2005) (Para 6, Pg. 7, Para 18, Pg. 46) > Tata Communication Ltd. (ITA No. ITA No. 2891/Mum/2010 & ITA No. 1015/Mum/2010) (Para 3.3 Pg.9), etc. In rebuttal to the Ld. DR's contention, the Appellant wishes to submit that the requisite documents required for establishing legal authority of the Assessing Officer are expected to be available in the assessment records and thus, it is not a case where verification of fresh facts is required. In any case, in order to check whether there is any lacuna in the assignment order purported to have been passed, the order should be available with Revenue Department in the first place. Since such an order has not been produced before the Hon'ble Bench, the question of verification or setting it aside does not arise. Further, in the presen....
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....2 July 2013 (Para 4.1) These new arguments were not taken by the ld. DR in the course of physical hearing before the Hon'ble Bench and are placed before the Hon'ble Tribunal only by way of this written submission Assignment order pertains to AY 2009-10 as well.) The Ld. DR has relied on the assessment order for AY 2010 - ii wherein there is a mention of the assignment order by the CIT to the JCIT. However, the Ld. DR has failed to produce any such order before the Hon'ble Tribunal despite repeated requests by the Appellant and opportunities granted by the Hon'ble Bench. Further, the Ld. DR has mentioned that the aforesaid assignment order dated 22 July 2013 is for both the assessment years i.e. AY 2009-10 and AY 2010-11. However, the draft and the final assessment order u/s 143(3) for AY 2009-10 nowhere refers to this assignment order. Further, the draft order for AY 2009-10 was passed by the Addnl. CIT on 30 March 2013 i.e. much before such assignment order was purportedly issued. Thus, there is no proof that the assignment order which is said to exist also relates to AY 2009-10. In the absence of the aforesaid order, it is not possible to ascertain whether it pertains....
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....ment order. Further, the Ld. DR has completely erred in stating that the Appellant has not challenged the assignment order (which should be presumed to be passed u/s 120(4)(b) and u/s 127 as per the Ld. DR) and that by challenging the absence of orders u/s 120(4)(b) and u/s 127, the Appellant is only challenging the form and not substance. When the Ld. DR has not been able to produce any order whatsoever from the assessment records, the arguments relating to form and substance are of no relevance. d) Amendment to S. 2(7A) was clarificatory in nature, JCIT definition u/s 2(28C) always included 'Addnl. CIT as well and reliance placed on Notifications dated 31.07.2001 and 17.09.2001 along with assignment order by the CIT-1, Thane (Para 7,8,9) The Appellant humbly submits that the arguments and the Board notifications referred by .the id. DR in Para 7,8, and 9 of the written submissions have been considered by all the decisions provided in the COJ. The Appellant has listed down few of the instances wherein the Hon'ble Mumbai ITAT has held that the assessment orders passed by Addnl. CIT/JCIT are without jurisdiction and liable to be quashed in absence of relevant notification....
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.....6 .1994. Thus, by virtue of this amendment, an Additional Commissioner of Income Tax was included in the definition of "Assessing Officer". It is true, as pointed out by the learned counsel for the assessee that when the Additional Commissioner passed the order of assessment, Section 2(7A) did not contain a specific reference of an Additional Commissioner. However, when the statute has been amended with retrospective effect, the effect of such amendment must be applied to the pending proceedings as in the present case. Non-applying such amendment in the present proceedings would destroy the retrospectively granted to it by the legislature. This contention of the assessee is, therefore, rejected." 5.2 In the present case, the Appellant is not objecting to the retrospective application of the definition of the term 'Assessing Officer'. Such a controversy does not arise at all in the Appellant's case since all the relevant orders in question are passed much after Finance Act 2007 i.e. in FY 2014-15. To this extent, the Appellant has not challenged the definition of the Assessing Officer u/s 2(7A) of the Act at all and in fact, it is fairly accepted by the Appellant that....
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....on'ble High Court therein is limited to the question involved therein (i.e. that the Addnl CIT can be considered as an Assessing Officer retrospectively from 1 June 1994) and not beyond the issues which were not raised/challenged before the Court. The Appellant submits that since the arguments and contentions raised by the Appellant in the instant case were not before the Hon'ble Bombay High Court, the ratio of N. Rajgopal (supra) has no application to the case of the Appellant. 5.7. The Appellant reiterates that the Addnl. CIT/JCIT can be considered as an Assessing Officer u/s 2(7A) of the Act only when he is directed to do so vide specific order issued in writing u/s 120(4)(b) of the Act which have not been produced in the instant case. Hence, the reliance on this case which does not deal with the relevant question in the instant case, is completely misplaced by the Ld. DR. 5.8. Further, in any case, besides the absence of an order u/s 120(4)(b) of the Act, the transfer order u/s 127 of the Act has also not been produced in the present case to establish that the jurisdiction was validly transferred from the ACIT to the Addnl. CIT/JCIT. Hence, without prejudice to the ab....
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....question shall be determined by the Principal Director General or Director General or the Principal Chief Commissioner or Chief commissioner or the Principal Commissioner or commissioner; or where the question is one relating to areas within the jurisdiction of different Principal Directors General or Directors General or Principal Chief commissioners or Chief Commissioners or Principal Commissioners or Commissioners, by the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (i) of section 115WD or under sub-section (i) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (i) of section 142 or sub- section (2) of section 115WE or sub-section (2) of secti....
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....made at any time by the Appellant and the time stipulated u/s 124(3) cannot apply to such cases where there is lack of jurisdiction. In cases where there is complete lack of jurisdiction, procedural limitations such as S. 124(3) should not hinder the objections to jurisdiction, which goes to the very root of the matter. 6.5 Without prejudice to the above, a bare perusal of the above provisions of section 124 show that the said provisions cover the aspect of jurisdiction of an Assessing Officer only with respect to his 'territorial jurisdiction'. The sub- sections (i), (2) and (s), all make a reference to the jurisdiction of an Assessing Officer with respect to as is evident from the words used in various places in these sub-sections. for example - jurisdiction over any area', 'within the limits of such area', 'within the area', areas within the jurisdiction'. 6.6 The provisions of section 124 of the Act apply in cases where an Assessing Officer has been vested with jurisdiction by any direction or order issued u/s 120(1) and 120(2) of the Act since the text of subsection (i) to section 124 begins with the words "by virtue of anti direction or ord....
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....s to an order issued under sub-section (i) or (2) of section 120, whereas we are concerned with an order purported to be passed under section 120(4)(b) empowering the Addnl. CIT to act as an Assessing Officer. Therefore, in our view the provisions of section 124 are not applicable to the present case." >Tata Sons Ltd. ITA No. 193/Mum/2006: "16. We also noted that the Gujarat 1-ugh Court in the case of Ramesh D Patel (supra), while dealing with a similar issue, we noted that at page 496 under last but one paragraph held as under: "9. Thus, section 124 of the Act pertains to the territorial jurisdiction of an Assessing Officer vested under sub-section (i) or sub-section (2) of section 120. An objection to such jurisdiction can be raised in terms of section 124(2). In terms of sub-section (3) of section 124, right to raise such objection shall be foregone beyond the stages mentioned therein. The said provisions are clearly concerning with the dispute of the assessee with respect to the territorial jurisdiction of the Assessing Officer and has no relevance in so far as the inherent jurisdiction for passing an order of assessment under section 153A of the Act is concerned, when no....
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.... of Principal CIT vs. Mega Corporation but relying on a particular decision does not mean that his additional ground be decided by us. We have gone through the decision of Delhi High Court in the case of Mega Corporation Ltd. (supra) and noted that various High Courts have taken a contrary view on this issue, as under: * CIT vs. Ramesh D Patel [362 ITR 4931 (Guj) * Prashant Chandra vs. CIT81 taxmann.com 106 (Allahabad) * Elite Pharmaceuticals vs. ITO [242 Taxman 3451 (Cal) 16. We also noted that the Gujarat High Court in the case of Ramesh D Patel (supra), while dealing with a similar issue, we noted that at page 496 under last but one paragraph held as under: "9. Thus, section 124 of the Act pertains to the territorial jurisdiction of an Assessing Officer vested under sub-section (i) or sub-section (2) of section 120. An objection to such jurisdiction can be raised in terms of section 124(2). In terms of sub-section () of section 124, right to raise such objection shall be foregone beyond the stages mentioned therein. The said provisions are clearly concerning with the dispute of the assessee with respect to the territorial jurisdiction of the Assessin....
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....ble Tribunal in case of Tata Communication Ltd vs. Addnl. CIT (ITA No. 7071/Mum/2005) wherein the decision of Hon'ble Delhi Tribunal of Mega Corporation Ltd. vs. Addnl. CIT (ITA No. 102/Del/2014) was considered which was subsequently reversed by the Hon'ble Delhi High Court in case of Mega Corporation ('supra). In MA No. 785/Mum/2017, the Hon'ble Mumbai Tribunal has categorically held that the Hon'ble Mumbai Tribunal has considered the submissions made by the parties and has applied its mind to the relevant statutory provisions, notifications issued by the CBDT and all the other relevant facts in ITA No. 7071/Murn/2005 before concluding that Addnl. CIT has no jurisdiction for conducting the assessment proceedings. It's not a case where the Tribunal had only relied on the decision of Hon'ble Delhi Tribunal in case of Mega Corporation before rendering a positive view. Thus, merely because the Hon'ble Delhi High Court has reversed the decision of the ITAT in Mega Corporation will not make the decisions of the Mumbai ITAT per incunium. (Refer Pg. Nos. 70 to 74of the COJ) 6.12. Further, as regards para 8 of the decision in case of Mega Corporation (supra....
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....h Court has not stayed the operation of the order of the Hon'ble Mumbai Tribunal in Tata Sons (supra) and accordingly, at this stage, the said decision is still a binding precedent 5. Bar on the assessee in raising jurisdictional issue beyond one month as per the provisions of Sec.124(3) of the Act (Para 16 to Para 16.1.4) These new arguments were not taken by the ld. DR in the course of physical hearing before the Hon'ble Bench and are placed before the Hon'ble Tribunal only by way of this written submission The Ld. DR had only relied upon the decision of the Hon'ble Delhi High Court in the case of Mega Corporation (supra) in the course of physical hearing. For appellant's submission regarding non application of S. 124(3) to the instant case, please refer rebuttal submissions to Mega Corporation (supra) made in Para 6 in this submission. 6 The decision of conferring jurisdiction is an administrative matter (Para 17 to Para 17.1.5) These new arguments were not taken by the ld. DR in the course of physical hearing before the Hon'ble Bench and are placed before the Hon'ble Tribunal only by way of this written submission The Ld. DR has also relied on various cas....