TaxTMI 
TaxTMI 
2024 (6) TMI 1431
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....17 for assessment year 2010-11, wherein the impugned order has been assailed on the following grounds of appeal: "1. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making addition of Rs 14, 01, 06, 197/- to total income as per the provision of clause (ii) & (iii) of Rule 8D of IT Rules and made addition u/s 14A of the Act and also adding the same to book profit for calculating MAT u/s 115JB of Income Tax Act, 1961 and the same is confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 2. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making addition of Rs. 1, 81, 68, 52, 360/- to total income notionally on account of lower rate of power tariff on sales to holding company and confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 3. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making disallowance of the expenditure of Rs 2, 24, 58, 798/- incurred under Rehab Compensation Scheme and confirmed by Ld. CIT(A), the....
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.... we have no hesitation in admitting the same. Our aforesaid view that where an assessee, had raised, though for the first time, an additional ground of appeal before the Tribunal which involves purely a question of law and requires no further verification of facts, then, the same merits admission finds support from the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (1998) 229 ITR 383 (SC). 3. Succinctly stated, the assessee company which is engaged in the business of generation and sale of power had filed its original return of income for A.Y. 201011 on 10.10.2012 disclosing a "book profit" of Rs. 2, 809.68 crores. The return of income filed by the assessee company was initially processed u/s. 143(1) of the Act. Subsequently, the case of the assessee company was selected for scrutiny assessment u/s. 143(2) of the Act. 4. Original assessment was framed by the A.O vide his order passed u/s. 143(3) dated 01.03.2013, wherein the income of the assessee company under normal provisions was determined at Rs. 123, 42, 91, 452/- after, inter alia, making following additions/disallowances: Sr. No. Particulars Amount 1. ....
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....eral or special order and subject to such conditions, restrictions or limitations as may be specified therein, empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that 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 provisions 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. 10. The Ld. AR submitted that as the Jt. CIT can assume jurisdiction and exercise powers and functions conferred on or as the case may be ass....
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....ceedings. 13. The Ld. AR on being confronted with the aforesaid letter dated 12.06.2023 (supra) had rebutted the contents of the same. It was claimed by him that the A.O had wrongly stated in his letter that an order u/s. 120(4)(b) of the Act was passed by the Commissioner of Income Tax pursuant to the Notification issued by the CBDT vesting concurrent jurisdiction with the Jt. CIT, Range-1, Bilaspur over the case of the assessee. Also, the Ld. AR assailed the validity of the jurisdiction assumed by the Jt. CIT, Range-1, Bilaspur in absence of any order u/s. 127 of the Act. 14. As the existence of the order u/s. 120(4)(b) of the Act passed by the Commissioner of Income Tax vesting jurisdiction with the Jt. CIT, Range-1, Bilaspur over the case of the assessee company was called in question, therefore, Shri Rahul Mishra, Dy. CIT, Bilaspur, i.e. A.O who had appeared before us was directed to place on record a copy of the aforesaid order a/w. copy of the notification issued by the CBDT vesting concurrent jurisdiction with the Jt. CIT, Range-1, Bilaspur for framing the assessment in the case of the assessee company. 15. Although, the Dy. CIT, Bilaspur in compliance to the afore....
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....u/s. 120 of the Act, i.e. Notification No. 223 dated 31.07.2001 in SO No. 732(E) and F. No. 137/5/2001-ITA(I) is in a different context. As per the Notification No. 03/2006, dated 13.10.2006, the Commissioner of Income Tax, Bilaspur in exercise of powers conferred upon him by the CBDT u/s. 120 of the Act, had authorized the Additional Commissioners of Income Tax/Jt. Commissioners of Income Tax to issue orders in writing for the exercise of the powers and performance of the functions by the A.Os who were sub-ordinate to them. Accordingly, it was pursuant to the aforesaid authorization the Addl. Commissioners/Jt. Commissioners had carried out restructuring of the jurisdiction of the authorities sub-ordinate to them, i.e. DCIT/ACIT/ITO in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases. Accordingly, the Notification No. 03/2006 dated 13.010.2006 issued by the Commissioner of Income Tax, Bilaspur in exercise of powers conferred by the CBDT u/s. 120 of the Act is not an order u/s. 120(4)(b) of the Act conferring jurisdiction with the Jt. CIT, Range-1, Bilaspur to exercise or perform the powers and functions as t....
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....ub-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 the powers and functions conferred on, or assigned to, an Assessing Officer under this Act;" (emphasis supplied by us) On a careful perusal of the aforesaid definition of the term "Assessing Officer" we find that the same, inter alia, takes within its sweep an Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under Clause (b) of Sub-section (4) of Section 120 of the Act to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under the Income Tax Act, 1961. 22. As observed by us hereinabove though the Jt. Commissioner of Income Tax, inter alia, can exercise or perform all or any of the powers and functions conferred on, or assigned to the A.O under this Act, but as provided in sub-section (7A) of Section 2 of the Act, the same is subjected to a fundamental pre-condition that he is so directed under ....
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....the assessment proceedings were in progress, the word 'Additional Commissioner' was not available m the aforesaid section and therefore, it was not possible for the Chief Commissioner or the Commissioner to have authorized an Additional Commissioner for exercising powers and functions of an Assessing Officer for a particular assessee or classes of assessee. Even otherwise, no order could be shown to us, whereby any such authority was given to the Joint Commissioner of the Range. Under these circumstances, we find that the Revenue is not able to show any order or notification in favour of the Additional Commissioner authorizing him for performing the powers and functions of the Assessing Officer of the assessee. 3.27. During the course of hearing, Ld. CIT-DR had drawn our attention upon Board's Notification No. 267/2001 dated 1.7-9-2001, Notification No. 228/2001 dated 31.7.2001 and Notification No, 335/2001 dated 29-102001 with a view to argue that the jurisdiction was assigned to all the officers including 'Additional Commissioner' for exercise of powers as Assessing Officer, and thus the 'Additional Commissioner of Income Tax' who had passed t....
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....n or assigned to an Assessing Officer; meaning thereby that the Addl. CIT can function or can exercise the powers and perform the functions of an Assessing Officer if he is empowered by the CBDT as required under clause (h) of sub-section (4) of section 120. .... 18.1 So far as the issue before us in the present appeal is concerned, it is now clear from the provisions as discussed hereinbefore that the Additional CIT could act and exercise the powers of an AO only in consequence upon delegation of such authority by the Board, Chief Commissioner of Income-tax or Commissioner of Income-tax as envisaged in the provisions of section 120(4)(b) of the Act, However, the power given to the Chief Commissioner of Income-tax or Commissioner of Income-tax being in consequence upon the delegation of power duly authorized by the Legislature, the Chief Commissioner of Income-tax or Commissioner of Income-tax were duly bound, if at all they were to exercise such delegated power to act according to the provisions of law; meaning thereby that it was incumbent upon the Chief Commissioner of Income-tax or the Commissioner of Income-tax, as the case maybe, if at all they wanted to authorize th....
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..... Addl. CIT (2005) 3 SOT 302. Also, we find that the ITAT, Delhi in the case Shri Nasir Ali Vs. Addl. CIT, ITA No. 1285/Del/2018 dated 25.09.2019, had observed that where the Addl. CIT had passed the assessment order, however, no order conferring concurrent jurisdiction to the Addl. CIT over the cases of the Income Tax Officers was available, the assessment so framed being without jurisdiction was void-ab-initio. Also, a similar view had been taken by the ITAT, Delhi in the case of Harvinder Singh Jaggi Vs. ACIT (2016) 157 ITD 869. We may herein observe that the ITAT, 'K' Bench, Mumbai in the case of The Indian Hotels Company Ltd. Vs. Addl. CIT/Dy.CIT (OSD), Range-2(2), ITA No. 8570/Mum/2011, ITA No. 565/Mum/2013, ITA No. 2049/Mum/2014 and ITA No. 1910/Mum/2014, dated 21.05.2021, had observed, that as the Addl. CIT, Range-2(2), Mumbai had failed to establish that he possessed the legal and valid powers of performing the functions of an A.O conferred on him u/s. 120(4)(b) of the Act, therefore, assessment so framed by him being devoid and bereft of any force of law was liable to be quashed. Once again, the aforesaid view had been reiterated by the ITAT, "J" Bench, Mumbai in ....
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....01 also did not confer any jurisdiction to the CIT, Hisar. (3) In addition, no order has been issued by the Ld.CIT transferring the case from one AO to other AO u/s 127 is also wanting in the instant case. 37. Considering the totality of the facts and circumstances of the case, we are of the view that JCIT, Hisar Range, do not have jurisdiction over the case of assessee and since he did not assume the jurisdiction legally and validly, therefore, the Impugned assessment order framed by him is vitiated and illegal and without jurisdiction. In view of the above discussion, we set aside the order of the authorities below and quash the impugned order." 27. We shall now deal with the contention of the Ld. DR that as the assessee company had not called in question the jurisdiction of the Jt. CIT, Range-1, Bilaspur within the specified time period contemplated under sub section (3) of Section 124 of the Act, i.e. within a period of one month from the date on which it was served with the notice u/s. 143(2) of the Act, therefore, it was divested of its right from assailing the same for the first time before the Tribunal. 28. Before proceeding any further, it would be relevant ....
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....ction 143. In sum and substance, the obligation cast upon an assessee to call in question the jurisdiction of the A.O as per the mandate of sub-section (3) of Section 124 is confined to a case where the assessee objects to the assumption of territorial jurisdiction by the A.O, and not otherwise. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of Peter Vaz Vs. CIT, Tax Appeal Nos. 19 to 30 of 2017, dated 05.04.2021 and that of the Hon'ble High Court of Gujarat in the case of CIT Vs. Ramesh D Patel (2014) 362 ITR492 (Guj.). In the aforesaid cases the Hon'ble High Courts have held that as Section 124 of the Act pertains to territorial jurisdiction vested with an AO under sub-section (1) or subsection (2) of Section 120, therefore, the provisions of sub-section (3) of Section 124 which places an embargo on an assessee to raise an objection as regards the validity of the jurisdiction of an A.O would get triggered only in a case where the dispute of the assessee is with respect to the territorial jurisdiction and would have no relevance in so far his inherent jurisdiction for framing the assessment is concerned. Also, support is drawn from ....
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.... sub-section (3) of Section 124 of the Act, then, having waived its said right, it was barred from raising the issue of jurisdiction after having participated in the assessment proceedings. The Hon'ble High Court had observed that the waiver can only be of one's right/privilege but non-exercise of the same will not bestow jurisdiction on a person who inherently lacks jurisdiction. Therefore, the principle of waiver cannot be invoked so as to confer jurisdiction on an Officer who is acting under the Act when he does not have jurisdiction. The Hon'ble High Court while concluding as hereinabove had relied on the judgment of the Hon'ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi, 2012 (4) SCC 307. The Hon'ble Apex Court in its aforesaid judgment had held that it is the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court. The Hon'ble Apex Court further observed that if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Also,....
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....s hereinabove, is in context of the territorial jurisdiction of the A.O. Apart from that, as held by the Hon'ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi (supra), as the Jt. CIT, Range-1, Bilaspur in absence of any order in writing u/s. 120(4)(b) of the Act had wrongly assumed jurisdiction and framed the assessment vide his impugned order u/s. 143(3) of the Act dated 01.03.2013, therefore, the assessee company remained well within its right to challenge the absence of his inherent jurisdiction to frame the impugned assessment in the course of the proceedings before us. 32. We, thus, in terms of our aforesaid observations, quash the order passed by the Jt. CIT, Range-1, Bilaspur u/s. 143(3) of the Act dated 01.03.2013 for want of valid assumption of jurisdiction on his part. 33. As we have quashed the assessment for want of valid assumption of jurisdiction, therefore, we refrain from adverting to and dealing with the contentions raised by the assessee company qua the merits of the case which, thus, are left open. 34. In the result, appeal filed by the assessee company in ITA No. 201/RPR/2017 for A.Y. 2010-11 is allowed in terms of our afor....
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....he Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in adding current investment amounting to Rs. 1, 51, 155/- to total income and confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 8. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making disallowance of Rs. 43, 73, 770/- on account of employee welfare fund and confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 9. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making disallowance of service charges amounting to Rs. 2, 11, 495/- u/s. 40(a)(ia) of the Act and confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 10. That the Ld. A.O has grossly erred on facts and in the circumstances of the case and in law in making disallowance of flying charges amounting to Rs. 30, 10, 101/- and confirmed by Ld. CIT(A), the same is against the facts & also against the law, hence may kindly be deleted. 11. That the Ld. A.....
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....it" of Rs. 2, 495, 67, 71, 210/- u/s. 115JB of the Act. The return of income filed by the assessee company was initially processed u/s. 143(1) of the Act. Subsequently, the case of the assessee company was selected for scrutiny assessment u/s. 143(2) of the Act. 37. Assessment was, thereafter, framed by the A.O vide his order passed u/s. 143(3) of the Act, dated 29.01.2014 determining the income of the assessee company under the normal provisions at Rs. 224, 25, 56, 784/- and "book profit" u/s. 115JB of the Act of Rs. 2, 503, 21, 25, 897/- after inter alia, making the following additions/ disallowances:   38. Aggrieved the assessee company carried the matter in appeal before the CIT(Appeals) who upheld the additions/disallowances made by the A.O. 39. The assessee company being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 40. Shri Salil Kapoor, the Ld. AR for the assessee company submitted that alike the earlier appeal, i.e. ITA No. 201/RPR/2017 for A.Y. 2010-11, the Jt. CIT, Range1, Bilaspur in the present case had also wrongly assumed jurisdiction and without any order u/s. 120(4)(b) of the Act, framed assessment vide hi....
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....n which gives the concerned JCIT, concurrent jurisdiction over the area and jurisdiction assigned to such Range. As per record available, no order u/s 127 was passed. However JCIT was having concurrent jurisdiction over the all assessee of the range, it was in practice that order passed by Range JCIT were entered in the registers of the respective assessing officer. Please find enclosed herewith assessment records for the A. Y.2010-11 & 2011-12 for your kind perusal and necessary action. Enclo As stated. Yours faithfully, 12 JUN 2023 STREET 237 Rahul Mishra Deputy Commissioner of Income tax, Bilaspur. Document 2 Office of the Deputy Commissioner of Income Tax, Circle-1(1). Shri Ram Plaza, Vyapar Vihar, Bilaspur (C.G.) 495001 Email:[email protected] F.No. DCIT/Cir. 1(1)/BSP/ITAT/120(4)/2023-24/510 To. The Hon'ble Judicial Member, ITAT, Raipur (C.G.) (Through JCIT, Range-1, Bilaspur) Dated 08.01.2024 Sir, 2. Subject: Production of order u/s 120 in the case of Jindal Power Ltd. (AABCJ4683J), Raigarh for the A.Y. 2010-11 & 2011-12 -corrigendum - regarding. Kindly refer to this office lett....
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....fication. In the case of an Hindu Undivided Family, the place of residence of the Karta and; in the case of a firm or an association of persons, or body of individuals or a local authority and all other artificial juridical persons other than companies, the place where the head office is located. The expression "Joint Commissioner" will have the meaning assigned to it under section 2(28c) of the Income tax Act. Kalyaulhandhu 13-10-2006 (Dr. Kalyan Chaudhuri ), Commissioner of Income tax, Bilaspur (C.6) 5. No Designation of Addl.CIT/JCIT 1. Addl. CIT Range-1, Bilaspur 2 SCHEDULE Subordinate I.T authorities DCIT/ACIT, Circle 1(1), Bilaspur Categories (i) All Limited Companies having registered office located within the territorial jurisdiction of ITO- 1(1), Bilaspur, ITO-1(2), Bilaspur, ITO-1, Raigarh & ITO-2, Raigarh (ii) All Directors and Managing Directors of such companies specified.at item (i) above. (iii) All persons (other than limited companies) within the territorial jurisdiction of the following officers :- (a) Income tax Officer-1(1), Bilaspur (b) Income tax Officer-....
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....6,31,32,33,34,35,36,37,38,39,40,41,42,43, 44,45,46,49,50,51,52,53,54 and 55 of the Municipal Area of Bilaspur (29 Municipal Wards)and whose total income includes: 1) Income from House Property and/or 2) Profit and Gains of Business or profession and/or: 3) Capital gains and/or; 4) Income from other sources. from iii) All cases of pensioners and salaried employees of Bilaspur District receiving salary/pension State/Central Govts. (other than those assessable by the DCIT/ACIT or by any other Assessing Officers) iii) All persons whose cases may be assigned u/s 127 of the Act ITO-1, Raigarh (i) All persons (other than companies and other than those assessable by any other Assessing officers) who fall within the Raigarh District (except tehsils of Kharsia and Sarangarh) and except those assessed by ACIT-1(1), Bilaspur and ITO-2, Raigarh and whose total income includes: ITO-2, Raigarh (1) DCIT/ACIT. Circle 2(1), Bilaspur ITO-2(1), 7 Addl. CIT. Bilaspur 10 8 11 9 Range-2, Bilaspur Addl. CIT, Range-2, Bilaspur Addl.CIT/ ITO-2(2), Bilaspur 1) Income from House Property ....
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....er than companies and other than those assessable by any other Assessing officers) who fall beyond the Municipal limit of Bilaspur (except Masturi Tehsils of Bilaspur) and except those assessed by ACIT-2(1), BSP & ITO-2(2), Bilaspur and whose total income includes:- ITO-1, Korba 1) Income from House Property and/or: 2) Profit and Gains of Business and/or: 3) Capital gains and/or; 4) Income from other sources. ii) All cases of pensioners and salaried employees of private institutions (Private salary) viz. All Banks, LIC, BSNL, Universities, CSEB, NTPC, Municipal Corp. CIIMS, FCI etc. falling within the districts of Bilaspur, Janjgir- Champa (other than those assessable by the DCIT/ACIT or by any other Assessing Officers) ITO-2, Korba ii) All persons whose cases may be assigned u/s 127 of the Act. (i) All persons (other than companies and other than those assessable by any other Assessing officers) who fall within the territorial jurisdiction of Janjgir-Champa District, Masturi Tehsils of Bilaspur and Manendragarh Tehsil of Korea Distt, and whose total income includes: 1) Income from House Property....
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....ness and/or; 3) Capital gains and/or: 4) Income from other sources. (ii) employees falling within the jurisdiction at (1) above (Other than those assessable' by the DCIT/ACIT or by any other Assessing Officers) (i) All persons whose cases may be assigned u/s 127 of the Act. All cases of pensioners and salaries (i) All persons (other than companies and other than those assessable by any other Assessing Officers)who fall within the Katghora, Pali & Kartala Tehsils of Korba District and Korba Municipal Ward Nos. 3,4,5,6 and 8) whose total income includes: 1) Income from House Property and/or: -7- 2) Profit and Gains of Business and/or; 3) Capital gains and/or: 4) Income from other sources. (ii) All cases of pensioners and salaried employees falling within the jurisdiction at (1) above and persons receiving pension/salary from the South Eastern Coal Fields (Other than those assessable by DCIT/ACIT or by any other Assessing Officers) (iii) All persons whose cases may be assigned u/s 127 of the Act. ITO- Ambikapur (1) All persons (other than companies and other than those assessable by any other ....