TaxTMI 
TaxTMI 
2024 (6) TMI 427
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....n dated 28/07/2023 for admission of additional grounds of appeal, for the assessment year 2007-08, whereby the assessee has challenged the jurisdiction of the Additional Commissioner of Income Tax ("Addl. CIT") in passing the assessment order under section 143(3) read with section 144C(13) of the Act, in the absence of jurisdiction conferred on him vide order under section 120(4)(b) of the Act and also in the absence of an order transferring the jurisdiction under section 127 of the Act. The learned Sr. Counsel submitted that the aforesaid grounds were initially raised vide application dated 12/09/2016, however, subsequent to the direction of the bench vide order sheet dated 26/06/2023, the assessee has filed a consolidated application in respect of all additional grounds earlier raised by the assessee vide its separate applications dated 10/03/2015, 12/09/2016, and 22/07/2021. 3. The additional grounds, in respect of the aforesaid issue, are in Part-B of the Exhibit-E, of the aforesaid consolidated application and the same are reproduced as under:- "B-1 On the facts and in the circumstances of the case, the assessment order dated 28.10.2011 passed by the Additional Com....
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....om the assessee, which was duly responded by the assessee on 07/11/2008. Thereafter, on 30/06/2009, another incumbent DCIT, Circle-2(3), Mumbai, informed the assessee about taking over the charge from the ACIT, Circle-2(3), Mumbai. On 02/07/2009, notice under section 142(1) of the Act was issued by the DCIT, Circle-2(3), Mumbai, seeking information from the assessee. On 13/08/2009, the assessee, for the first time, received a letter from the Addl. CIT, Range-2(3), Mumbai, informing that the assessee's case has been assigned to him by the CIT-2, Mumbai, vide assignment order dated 03/08/2009, for completion of the assessment for the assessment year 2007-08. On the same date, i.e. 13/08/2009, notice under section 143(2) of the Act was issued by the Addl. CIT, Range-2(3), Mumbai. Thereafter, on 21/05/2010, notice under section 142(1) of the Act was again issued by the DCIT, Circle-2(3), Mumbai. On 11/08/2010, the assessee again received a letter from the Addl. CIT, Range-2(3), Mumbai, informing that the assessee's case has been assigned to him by the CIT-2, Mumbai, vide assignment order dated 05/08/2010, for completion of the assessment for the assessment year 2007-08. On the same dat....
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....peal in Principal CIT v/s M/s Tata Sons Ltd., in ITA No. 1403 of 2017, against the decision of the coordinate bench of the Tribunal on a similar issue. The learned DR submitted that since the Hon'ble High Court has doubted the correctness of the decision of the Tribunal, therefore the same cannot be relied upon, and the additional ground raised by the assessee cannot be admitted. The learned DR further submitted that the additional grounds challenging the jurisdiction have been raised by the assessee after delay and the assessee has not provided any reason for such a delay. The learned DR submitted that in NTPC Ltd. (supra), the Hon'ble Supreme Court has referred to the question of law, however, in the present case, there is no question of law and the issue whether the Addl. CIT has jurisdiction to pass the assessment order is only a question of fact as the same depends upon the order passed under section 120(4)(b)/section 127 of the Act. The learned DR further submitted that in NTPC Ltd. (supra), the issue was determination of tax liability and all the facts were available on record, unlike in the present case. It was submitted that the assessee participated in the assessment proc....
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.... the Act. The Revenue has objected to the admission of the additional grounds of appeal on the basis that no such ground was raised by the assessee before the lower authorities, and even in the present appeal, such a challenge was raised for the first time vide application dated 12/09/2016, and thus there is a delay in raising the additional grounds of appeal before the Tribunal. Further, it is the plea of the Revenue that the additional ground raised by the assessee is a question of fact and therefore cannot be raised by way of additional ground. On the contrary, the assessee in its application submitted that the additional grounds raised go to the very root of the matter and deal with the very jurisdiction and authority of the Assessing Officer to pass the assessment order. In support of its submission, the assessee has, inter alia, placed reliance upon the decision of the Hon'ble Supreme Court in NTPC Ltd. (supra). We find that in NTPC Ltd (supra), the Hon'ble Supreme Court observed as under: "Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising f....
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....essee was admitted even after a gap of 10 years or 15 years in the following decisions: (i) Tata Sons Ltd., in ITA No.4497/Mum/2005 dated 31/10/2006 reported in 162 ITD 450; (ii) Tata Communications Ltd., in ITA No.7071/Mum./2005 dated 30/06/2017; (iii) Tata Communications Ltd., in ITA No.2891/Mum/2010 and ITA No.1015/ Mum./2010 dated 16/08/2019; (iv) Tata Sons Ltd., in ITA No.193/Mum./2006 dated 27/11/2017; (v) Kishor Vithaldas in ITA No.5661/Mum./2017 dated 16/10/2019. 10. We further find that in All Cargo Global Logistics Ltd. v/s DCIT, [2012] 16 ITR(T) 380 (Mumbai) (SB), the Special Bench of the Tribunal admitted the ground challenging the jurisdiction as an additional ground of appeal, though raised in the memorandum of appeal, on the basis that the said ground was not raised before any of the lower authorities and thus not decided by any of them. In order to come to the aforesaid conclusion, the Special Bench placed reliance upon the decision of the Hon'ble Supreme Court in NTPC Ltd. (supra). Thus, we find no basis in the submission of the Revenue that since the assessee has participated in the assessment proceedings before the ....
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....e relied upon, and the additional ground raised by the assessee cannot be admitted. From the perusal of the aforesaid order, we find that the Hon'ble jurisdictional High Court admitted the Revenue's appeal on the following substantial questions of law:- "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in admitting the additional ground when the assessee had not raised issue of jurisdiction of the Assessing Officer before the Assessing Officer and CIT(A)? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified to the conclusion that the Additional Commissioner of Income Tax, Range-2(3), Mumbai, had no jurisdiction to pass the assessment order?" 14. However, we find that apart from admitting the aforesaid substantial questions of law, the Hon'ble High Court has neither directed the stay of the operation of the Tribunal's order nor reversed the findings of the Tribunal admitting additional ground of appeal on a similar issue. It is trite law that unless the decision has been stayed or reversed in appeal, the same is a binding precedent, and mere pendency of the appeal does not affect the bin....
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....y the assessee in its appeal for assessment year 2007-08. 16. The grievance of the assessee is that the Addl. CIT has passed the impugned final assessment order under section 143(3) read with section 144C(13) of the Act, in the absence of jurisdiction conferred on him vide order under section 120(4)(b) of the Act and also in the absence of an order transferring the jurisdiction under section 127 of the Act. Undisputedly, under the Act, only the Assessing Officer is empowered to conduct a scrutiny assessment and passed the assessment order under section 143(3) of the Act. The term "Assessing Officer" has been defined in section 2(7A) of the Act 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 (1) or sub-section (2) of section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of....
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....rs of intimation dated 13/08/2009 and 11/08/2010 submitted that by virtue of the assignment order dated 03/08/2009 and 05/08/2010 passed by the CIT-2, Mumbai, the assessee's case was assigned to the Addl. CIT, Range-2(3), Mumbai, for the completion of assessment in assessee's case. It was further submitted that pursuant to the aforesaid intimation letters, notice under section 143(2) as well as section 142(1) of the Act were issued by the Addl. CIT, however no objection on the issue of jurisdiction was raised by the assessee during the assessment proceedings. The learned DR submitted that even the draft assessment order dated 24/12/2010, for the assessment year 2007-08, passed by the Addl. CIT mentions that the case was assigned to the Addl. CIT by the CIT-2, Mumbai, vide assignment order dated 05/08/2010 for the completion of the assessment. However, no objection was filed by the assessee before the learned DRP challenging the jurisdiction of the Addl. CIT to complete the assessment. The learned DR, further, by referring to the provisions of section 124(3) of the Act submitted that the assessee can question the jurisdiction of the Assessing Officer only within a period of one mont....
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....the Addl. CIT to perform the functions, and exercise the powers of an Assessing Officer and pass the assessment order. Thus, apart from the sole statement in the intimation letters dated 13/08/2009 and 11/08/2010 as well as in para 1 of the draft and final assessment order for the assessment year 2007-08, the Revenue has failed to produce any such order. 22. Further, as regards the submission of the learned DR that as per the provisions of section 124(3) of the Act, any challenge to the jurisdiction of the Assessing Officer can be raised within a period of one month, we find that the Hon'ble jurisdictional High Court in Bansilal B. Raisoni & Sons v/s ACIT, [2019] 101 taxmann.com 20 (Bom.) held that the time limit for raising objection to the jurisdiction of the Assessing Officer prescribed under sub-section (3) of section 124 has a relation to Assessing Officer's territorial jurisdiction and the said time limit would not apply to a case where the assessee contends that the action of the Assessing Officer is without authority of law, and therefore, wholly without jurisdiction. The relevant findings of the Hon'ble jurisdictional High Court, in the aforesaid decision, are reproduce....
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....n of the learned DR. 24. The reliance placed by the Revenue on the decision of the Hon'ble jurisdictional High Court in N.Rajgopal v/s Addl. CIT, in ITA No. 1454 of 2016, dated 29/01/2019, also does not support its case, as in that case there was no dispute regarding the non-fulfilment of the conditions of section 120(4)(b) of the Act. Hence, the aforesaid decision is distinguishable on facts, and not applicable to the present case. In the present case, the issue is not regarding the competency of the Addl. CIT in passing the order, but whether the Addl. CIT is duly authorized as per the provisions of section 120(4)(b) of the Act to perform the functions, and exercise the powers of an Assessing Officer under section 2(7A) of the Act. 25. The learned DR placed reliance upon the decision of the coordinate bench of the Tribunal in ACIT v/s Stock Traders Pvt. Ltd., in ITA No.4493/Mum./2003, wherein a similar additional ground raised by the taxpayer was dismissed. From the perusal of the aforesaid order, it is evident that the coordinate bench though admitted the similar additional ground raised by the taxpayer, however, on the basis that there is no information in the possession ....