2013 (8) TMI 485 - HC - Income Tax

Transfer of case - Section 127 (4) - Requirement for reissue of notice for reassessment u/s 147 - Held that - There was no search and seizure operation nor any coordinate investigation was required as there was no group of companies nor any incriminating material was seized at any place or places. It was during the course of assessment made by ACIT, NOIDA, who had assumed jurisdiction on the ground that he alone could have assessed the assesee as they had their office and business place in NOIDA, the order under Section 127 (2) was obtained by making efforts. According to A.O. the assessee was seeking repeated adjournments. In the circumstances, it cannot be said that the assessee was either absconding from proceedings or was not available so as to form any opinion that service of notice was not possible. The assessee had filed objections, which was directed to be decided by the High court - Reasons given by CIT (A) in deciding the objections were not sufficient as the transfer of jurisdiction was made on the request of A.O. to which objections were filed and were not decided by the A.O - Mandatory for the A.O. to decide objections and that the exercise of discretion on the objections would in any case not validate the notice under Section 147/148 of the Income Tax Act Decided against the Revenue.

Issues Involved:
1. Validity of the order under Section 148 in view of Section 127(4).
2. Validity of the order under Section 147/144 based on territorial jurisdiction.
3. Requirement of opportunity before passing the order under Section 127.
4. Substantiation of the address by the assessee.
5. Geographical separation of Noida and Delhi within the NCR.
6. Validity of the administrative order under Section 127 in the absence of opportunity.

Issue-wise Detailed Analysis:

1. Validity of the order under Section 148 in view of Section 127(4):
The ITAT quashed the order of the Assessing Officer (A.O.) under Section 148, noting that the jurisdiction was improperly assumed by ACIT, Noida. The assessee had been filing returns in Delhi, and the transfer of jurisdiction was not properly executed as per Section 127(4). The ITAT concluded that the notices issued under Section 148 were invalid, as the ACIT, Noida, did not have jurisdiction over the assessee at the time the notices were issued.

2. Validity of the order under Section 147/144 based on territorial jurisdiction:
The ITAT found that the reassessment proceedings under Section 147/144 were invalid due to the lack of proper jurisdiction. The assessee had consistently filed returns in Delhi, and the transfer of jurisdiction to Noida was not justified. The ITAT upheld the assessee's contention that the A.O. in Noida had no authority to issue the reassessment notices.

3. Requirement of opportunity before passing the order under Section 127:
The ITAT held that the transfer of jurisdiction order under Section 127 was invalid as it was passed without giving the assessee an opportunity to be heard. The statutory requirement of providing an opportunity of being heard is mandatory, and failure to comply with this renders the transfer order invalid. The ITAT relied on the judgment of the Delhi High Court in the case of Melco India Pvt. Ltd. to support this conclusion.

4. Substantiation of the address by the assessee:
The CIT (A) had found inconsistencies in the addresses provided by the assessee in various documents and returns. However, the ITAT observed that the assessee had been consistently assessed in Delhi, and there was no misrepresentation of facts regarding the address. The ITAT concluded that the assessee's jurisdiction was rightly with the Delhi authorities, and the transfer to Noida was not justified.

5. Geographical separation of Noida and Delhi within the NCR:
The ITAT rejected the argument that Noida and Delhi are geographically the same within the NCR. The ITAT emphasized that the territorial jurisdiction is distinct and must be respected. The transfer of jurisdiction from Delhi to Noida without proper procedure and opportunity to the assessee was found to be invalid.

6. Validity of the administrative order under Section 127 in the absence of opportunity:
The ITAT quashed the administrative order passed under Section 127 on the grounds that no opportunity of being heard was given to the assessee. The ITAT held that the statutory requirement of providing an opportunity of being heard is mandatory, and failure to do so invalidates the transfer order. Consequently, the reassessment notices and the subsequent proceedings were also quashed.

Conclusion:
The High Court agreed with the ITAT's findings and reasoning, emphasizing the importance of jurisdiction and the mandatory requirement of providing an opportunity of being heard before transferring jurisdiction. The court dismissed the income tax appeals, deciding all questions of law against the department and in favor of the assessee.

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