2023 (9) TMI 1485

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....h of the assessee and no such explanation was filed before the A.O during assessment proceedings. 2. That on the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in believing the explanations of the assessee that the seized papers were not related to him ignoring the fact that these documents were found and seized from the possession of the assessee during search and hence, the order passed by him is in violation of provision of Section 292C of the I.T Act. 3. That on the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in accepting the explanation of the assessee on seized document that was not furnished before the A.O without giving opportunity to the A.O to examine the same under the provision of Section 292C and furnishing his comments." 3. In addition to the above grounds, we find that assessee has moved an application under Rule 27 of the Income-tax (Appellate Tribunal) Rules, 1963 (hereinafter referred to as "ITAT Rules") for raising additional plea in order to defend the impugned order. Through this application under Rule 27, assessee has raised the following two issues, namely - (i) For t....

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....e-tax, Circle Yamuna Nagar, Jadhari, Haryana-135001. In the said assessment order, address of the assessee noted by the Ld. AO is "1082, Daggan Street, Jagadhri, Yamunanagar, Haryana-135003" (Abhijit Group of cases). 4.3. After passing of the said assessment order, case of the assessee was centralised by transferring it from ACIT, Circle Yamuna Nagar to DCIT, CC-II, Kolkata by passing an order u/s. 127 of the Act w.e.f. 15.04.2013. The said order passed u/s. 127 of the Act, is after the passing of assessment order by Ld. DCIT, Circle Yamuna Nagar on 31.03.2013. 4.4. Assessee had filed his first appeal against the impugned assessment order before the Ld. CIT(A), Panchkula. Since the case of the assessee was transferred to Kolkata jurisdiction w.e.f. 15.04.2013, appeal filed was transferred from Ld. CIT(A), Panchkula to Ld. CIT(A), Central-III, Kolkata. The first appellate order is passed from the office of Commissioner of Income Tax Appeals-20, Kolkata, dated 31.01.2018 whereby appeal of the assessee is allowed on the quantum issues. 4.5. Revenue is in appeal before the Tribunal. The said appeal is filed with a delay of 19 days for which a petition for condonation....

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....the order of Hon'ble High Court of Bombay in the case of MSPL Ltd. Vs. PCIT & Ors in Writ Petition (L) No. 3856 of 2020 dated 21.05.2021. In this case, the Hon'ble Bombay High Court had an occasion to deal with the power to transfer pending appeal from one bench to another between the Tribunal, whether outside the headquarters in another state or from one bench to another bench within the same headquarters. 6.1. While dealing with this issue, Hon'ble Court analysed section 255 of the Act, more particularly sub-section (5) and (6) and arrived a conclusion that sub-section (5) cannot be interpreted in such a broad manner to clothe the President of the Tribunal, the jurisdiction to transfer a pending appeal from one bench to another bench outside the headquarters in any state. According to the Hon'ble High Court in, sub-section (6) of section 255, no power is discernible that an order on the administrative side can be passed by the President, transferring live appeal from one bench to another bench that too in a different state outside the headquarters. 6.2. Relevant extracts in this respect are reproduced below: "37. From a careful analysis of section 255, more particu....

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....1) empowers the President to direct hearing of the appeal by a Bench by a general or special order. In reference to sub-rule (2), it stated that where there are two or more Benches of the Tribunal working at any head quarter; when there are multiple Benches in a headquarter, the President or, in his absence the Senior Vice President etc. may transfer an appeal or an application from one of such Benches to any other. According to the Hon'ble High Court, sub-rule (2) is more specific which deals with transfer of an appeal or application from one Bench to another Bench within the same head quarter. To explain, this Hon'ble Court gave an example as to "in Mumbai the number of benches is 12 and in Bangalore, the number of benches is three. Thus, this provision can be invoked to transfer an appeal from one Bench in Mumbai and to another Bench in Mumbai or from one Bench in Bangalore to another Bench in Bangalore. But this provision cannot be invoked to transfer a pending appeal from one Bench under one headquarter to another Bench in a different headquarter." Hon'ble Court also referred to Rule 13 and 28 of the ITAT Rules to point out that original jurisdiction of the Bench is determined....

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....from one Bench in Bangalore to another Bench in Bangalore. But this provision cannot be invoked to transfer a pending appeal from one Bench under one, headquarter to another Bench in a different headquarter. 42. While on the Tribunal Rules, we may also refer to rules 13 and 28. Who may be joined as respondent in an appeal by the assessee is dealt with in rule 13. In an appeal by an assessee under sub-section (1) of section 253, the concerned Assessing Officer shall be made a respondent to the appeal. Concerned Assessing Officer would mean the Assessing Officer who had passed the assessment order from which the appeal to the Tribunal arises. As per rule 28, Tribunal has the power to remand an appeal to the authority from whose order the appeal has been preferred or to the concerned Assessing Officer with such directions as the Tribunal may think fit. 43. Standing Order has, been made in pursuance of sub rule (1) of rule 4 of the Tribunal Rules. Standing Order provides for hearing of appeals and applications by different Benches of the Tribunal. In other words, it provides for the territorial jurisdiction of the different Benches. It is seen therefrom that the three....