TaxTMI 
TaxTMI 
2022 (12) TMI 1585
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....ent years 2005-06 and 2006-07, whereby the assessee has challenged the jurisdiction of the Additional Commissioner of Income Tax ("Addl. CIT") in issuing notice under section 143(2) and passing the assessment order under section 143(3) of the Act, in absence of an order under section 120(4)(b) of the Act. 3. In its appeals, the assessee has raised, inter-alia, the following common additional grounds of appeal: "The following Grounds of Appeal are independent of, and without prejudice to each other and to the grounds of appeal filed earlier. 5. On the facts and in the circumstances of the case, the notice 7 August 2007 issued under section 143(2) of the Income-Tax Act, 1961(the Act) and the assessment order dated 22 December 2008 passed by the Additional Commissioner of Income Tax (Addl. CIT) under section 143(3) of the Act is bad in law, illegal and without jurisdiction and/or in the excess of jurisdiction, on the grounds amongst others, that he did not possessed legal and valid jurisdiction under the Act to pass the assessment order and consequently the Hon'ble tribunal he pleased to quash the said order. 6. On the facts and the circumstances of t....
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....er book, we find that in the assessment year 2006-07 notice under section 143(2) of the Act was initially issued by the DCIT, Circle-7(1), Mumbai on 17/11/2007. Thereafter, on 29/07/2008, notice under section 143(2) of the Act was issued by the Addl. CIT, Range 7(1), Mumbai. Subsequently, notice under section 142(1) of the Act was also issued by the same incumbent officer. Thereafter, notices under sections 143(2) and 142(1) of the Act along with a questionnaire were issued to the assessee on 21/08/2009, by another incumbent Addl. CIT, Range 7 (1), Mumbai. 6. The learned AR by referring to the definition of "Assessing Officer" as provided under section 2(7A) of the Act submitted that Addl. CIT can act as the Assessing Officer provided the order under section 120(4)(b) of the Act has been issued by the CBDT. However, no such order has been placed on record by the Revenue despite time being sought on previous occasions and therefore, notice issued under section 143(2) as well as assessment order passed under section 143(3) of the Act are without jurisdiction and bad in law. In support of its submissions, the learned AR placed reliance upon various decisions. 7. On the contrary,....
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....raised are the pure questions of law and the failure to raise the same at the time of filing of the present appeal was neither deliberate nor contumacious but are arising out of the legal position which has come to the notice of the assessee subsequent to the filing of the present appeal. In support of its submission, the assessee has, inter alia, placed reliance upon the decision of the Hon'ble Supreme Court in CIT vs NTPC Ltd, 229 ITR 383 (SC). 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 from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." 10. Thus, in the aforesaid decision, the Hon'ble Supreme Court held that legal issues can be raised for the first time before the Tribunal, so long as the relevant facts are on record in the assessment proceedings for that issue. Sinc....
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....ficer" has been defined in section 2(7A) of the Act as under: "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 subsection (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 the powers and functions conferred on, or assigned to, an Assessing Officer under this Act." (Emphasis supplied) 13. Thus, as per the provisions of section 2(7A) of the Act, Addl. CIT can exercise the powers of the Assessing Officer under the Act if the direction in this respect has been issued under section 120(4)(b) of the Act. As per section 120(4)(b) of the Act, CBDT may by general or special order empower the authorities mentioned under the provision to issue orders in writing that the powers and functions assigned to the Assessing Officer shall be exercised or performed, inter-alia, b....
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.... dated 06/04/2022, has, inter-alia, placed on record a copy of notification dated 01/08/2001 issued by Commissioner of Income Tax, Mumbai City VII, Mumbai. We find that in the aforesaid notification Addl. CIT/JCIT were authorised to exercise the powers and perform all the functions excluding the functions under Chapter XVIIB, XVIIBB and XVIID relating to deduction and collection of tax at source. However, we find that the aforesaid notification dated 01/08/2001 has been issued in the exercise of the power conferred under sub-section (1) and (2) of section 120 of the Act. We further find that the issue, whether the aforesaid notification can be considered to authorise the Addl. CIT to act as the Assessing Officer under section 2(7A) read with section 120(4)(b) of the Act, came up for consideration before the coordinate bench of the Tribunal in DCIT vs Tata communications Ltd., in ITA No. 6981 & 7071/Mum./2005, CO No. 40/Mum./2017, ITA No. 1108 & 1836/Mum./2008. The Co-ordinate Bench of the Tribunal vide its order dated 30/06/2017, observed as under: "14. ........... The specific contention of the assessee is, as per the provisions of section 2(7A), as it existed at the rele....
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....T, JCIT, JDIT can be vested with the power of Assessing Officer under section 120(4)(b). In a notification issued under section 120(1) and 120(2), Addl. CIT cannot be vested with power to act as an Assessing Officer. Therefore, notification no.228 of 2001 dated 31 July 2001, cannot be said to be vesting power of Assessing Officer with the Addl. CIT. Similar is the situation with notification dated 1st August 2001, issued by the CIT, Mumbai, as it is a notification issued under section 120(1) and 120(2) and not under sub-section (4)(b)." 15. Further, in its written submission dated 11/07/2022, the learned DR stated as follows:- "6. The only difficulty being faced by the department is that the copy of such order is presently not traceable". The reason for non-traceability, as mentioned in the aforesaid submission, is that more than 13 years have elapsed since the passing of the assessment order. It is further submitted that it is a routine matter in the department that the file is moved from one office to the other due to change of jurisdiction, restructuring, or any other reason and there is a probability that the case records could not be located immediately. It is p....