2021 (8) TMI 700 - AT - Income Tax

Reopening of assessment u/s 147 - Jurisdiction of Income Tax Authorities - Power to transfer cases - pecuniary jurisdiction to frame such assessment - reasons for forming belief of escapement of income by the assessee were recorded by the ITO, Ward-23(3), Hooghly and notice u/s 148 of the Act was also issued by the by the ITO, Ward-23(3), Hooghly but the assessment has been framed by the ACIT, Circle-23(1), Hooghly - HELD THAT - As jurisdiction to transfer case from one Assessing Officer to other Officer lies with the Officers as mentioned in section 127(1) who are of the rank of Commissioner or above. No document has been produced on the file by the Department to show that the case was transferred by the competent authority from ITO, Ward-23(3), Hooghly to ACIT, Circle- 23(1), Hooghly. There is no document on the file that the ACIT, Circle-23(1), Hooghly had ever recorded any reasons to form belief that the income of the assessee has escaped assessment nor did he issue any notice u/s 147 of the Act. On the other hand, the ITO, Ward-23(3), Hooghly had recorded the reasons for reopening of the assessment and had issued notice u/s 148 of the Act, but did not proceed further with the framing of assessment. Under the circumstances, the assessment framed by ACIT, Circle-23(1), Hooghly, is bad in law on two counts, firstly he did not have any pecuniary jurisdiction to frame the assessment and secondly he himself did not form any belief that the income of the assessee has escaped assessment nor did he issue notice u/s 148 of the Act which was sine qua non to assume jurisdiction to frame to assessment. Decided in favour of the assessee.

Issues Involved:
1. Violation of principles of natural justice.
2. Addition under Section 68 of the Income Tax Act, 1961.
3. Assessment of income under Section 115BBE of the IT Act, 1961.
4. Addition under Section 69C of the Income Tax Act, 1961.
5. Denial of exemption under Section 10(38) of the IT Act, 1961.
6. Validity of reopening the assessment under Section 148 of the IT Act, 1961.
7. Jurisdictional issues regarding the assessment order.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The assessee contended that the appellate order was in violation of the principles of natural justice, making it bad in law and requiring quashing. The Tribunal did not specifically address this contention as the primary focus was on jurisdictional issues.

2. Addition under Section 68 of the Income Tax Act, 1961:
The assessee challenged the addition of ?39,14,951/- made under Section 68 as unexplained cash credit on account of bogus long-term capital gains from the sale of listed equity shares. The Tribunal did not delve deeply into this issue due to the primary jurisdictional challenge.

3. Assessment of Income under Section 115BBE of the IT Act, 1961:
The assessee argued against the assessment of income from the sale of listed equity shares under Section 115BBE, claiming it was bad in law. This issue was not specifically addressed due to the jurisdictional findings.

4. Addition under Section 69C of the Income Tax Act, 1961:
The assessee contested the addition of ?19,580/- under Section 69C as unexplained expenditure towards total commission for arranging bogus long-term capital gains. The Tribunal did not specifically address this issue due to the jurisdictional challenge.

5. Denial of Exemption under Section 10(38) of the IT Act, 1961:
The assessee claimed that the Commissioner of Income Tax (Appeals) erred in not allowing exemption under Section 10(38) for capital gains from the sale of listed shares. This issue was not specifically addressed due to the jurisdictional findings.

6. Validity of Reopening the Assessment under Section 148 of the IT Act, 1961:
The assessee argued that the reopening of the assessment for AY 2011-12 under Section 148 was bad in law. The Tribunal found that the reasons for reopening were recorded by ITO, Ward-23(3), Hooghly, and the notice was issued by the same officer. However, the reassessment order was passed by ACIT, Circle-23(1), Hooghly, who did not have the pecuniary jurisdiction to do so. The Tribunal highlighted that there was no document showing that the case was transferred by a competent authority as required under Section 127 of the Act.

7. Jurisdictional Issues Regarding the Assessment Order:
The Tribunal focused extensively on the jurisdictional issue, noting that the ACIT did not have the pecuniary jurisdiction to frame the assessment as the returned income was less than ?15 lacs, which should have been handled by the ITO. The Tribunal cited Section 120 and Section 127 of the Income Tax Act, emphasizing that the jurisdiction of Income Tax Authorities is fixed based on territorial and pecuniary criteria. The Tribunal concluded that the assessment framed by ACIT, Circle-23(1), Hooghly, was bad in law due to lack of jurisdiction and the absence of a proper transfer order from a competent authority.

Conclusion:
The Tribunal allowed the appeal of the assessee primarily on jurisdictional grounds, setting aside the reassessment framed under Section 147 of the Income Tax Act, 1961, as it was without jurisdiction and thus bad in law. The Tribunal did not delve deeply into other grounds of appeal due to the decisive jurisdictional findings. The order was pronounced on 12.08.2021.

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