Procedure in case of change of jurisdiction. - Income Tax - 1387/CBDT

INSTRUCTION NO. 1387/CBDT Dated: March 3, 1981 Recently the board have noticed a case where the ITO Bombay, after he was authorised by the Commissioner u/s.253(2) filed an appeal on 12-11-74 in the tribunal. Thereafter on 30-10-75 the jurisdiction over the case was transferred from Bombay charge to Pune charge by the board as per its order dated 30-10-1975 u/s.127. The Tribunal disposed of the appeal on 17-6-77 after about 20 months from the date of the transfer of records to the Pune charge. The Registrar, ITAT sent a copy of the order to the Commissioner, Bombay on 7-7-77. The judicial section of the CITs office returned the copy of the order to the Registrar of the Tribunal on 23-8-77 pointing out that the jurisdiction over the case had since been transferred to the ITO in Pune charge and requesting that the said order should be served on the CIT, Pune. Thereafter the registrar served the order on the CIT Pune on 1-9-77. The reference application u/s.256(1) was filed by the CIT Pune on 29-10-77 but by mistake under column 2 of the application in Form No.37 the CIT Pune gave the date of receipt of notice of the order as 7-7-77. Though the said mistake was pointed out to the Tribunal by filing a miscellaneous petition and by explaining that in fact the order of the Tribunal was received by the CIT, Pune on 1-9-77, the Tribunal by a common order dismissed the miscellaneous application as well as the reference application as time-barred. The Tribunal observed that under column 10 of Form of Appeal the appellant ITO stated the address to which notices might be sent to him and that he did convey to the registrar any change of address. The Tribunal also remarked regarding the DR's inability to state in what circumstances and when the case records were transferred from the Bombay charge to Pune charge. 2.1 Since there was no case for filing reference application u/s.256(2) the board were advised that a chance may be taken by filing a writ against the Tribunal's order. The writ so filed has been dismissed by the Bombay High court. The court made the following observations:- "The order of the Tribunal shows that representative of the commissioner was not in a position to clarify in spite of the query from the Tribunal as to the date of the order in which the jurisdiction was transferred from ITO, Bombay to ITO, Thane. Such jurisdiction could as well have been transferred on any date before 23-8-77. It is not clear why the copy received by the Commissioner Bombay on 7-7-77 was not returned forthwith to the Tribunal and why it was not sent till 23-8-77. In the absence of any material on record it is not possible for us to hold that the Tribunal was wrong in serving the copy of the order u/s.254(3) on the Commissioner Bombay. If no error can be traced in that act of the Tribunal the limitation for the purpose of section 256(1) is bound to commence from that date. 2.2 Further the High Court laid stress on the fact that ordinarily the copy of the order would be served on the Commissioner who could have jurisdiction over the Income-tax Officer whose name was mentioned in the Form of Appeal unless any change therein was communicated to the Tribunal and that any change therein not having been communicated to the Tribunal till the copy of the order served on the Commissioner, Bombay was returned by him to the Tribunal on 23-8-1977, it was difficult to take notice of the mechanical act of the Registrar of the Tribunal for the purpose of deciding the point that arose in the writ petition. 2.3 Thus the Department's contention that under section 130(2) read with section 254(3), the Commissioner, Pune shall be the Commissioner to perform the functions for the purposes of Section 253, 254 etc. has not been adjudicated upon by the High Court. The learned Solicitor General of India has not advised a special leave petition mainly on the ground that full facts were not placed before the High Court though sufficient opportunities were given to the Department. 3.1 In order to avoid such situations, the Board desire that the following procedure should be strictly followed by the Commissioners of Income-tax and Income-tax Officers: (a) The concerned Income-tax Officer before transferring the case records to another ITO in a different Commissioner's charge, will inform the change of address to the Registrar, ITAT by a letter as per Annexure "A". A copy of such letter will be endorsed to the ITO/IAC (Judicial) with reference to the judicial file number of the Commissioner's office, if any. The fact of such letter having been sent to the Registrar will be mentioned by him in the transfer memo (ITNS 110) wherein the following item should be inserted:- " Details of appeals pending in the Appellate Tribunal and the date on which the Registrar, ITAT has been informed of the change of address." The above procedure will apply to both the appeals filed by the Department as well as by the assessee. it will be the responsibility of the transferring ITO to see that the letter has been properly served on the Registry of Tribunal, and the evidence of service securely attached with the office copy of the letter addressed to the Registrar should be placed in the relevant folder under transfer. A note to this effect should be made in the order-sheet of the folder. (b) The Commissioner who has transferred the case when served with a copy of the Tribunal's order will immediately return the same to the Registry of the Tribunal informing that since with effect from a particular date the case stood transferred to a particular Commissioner it is he who holds jurisdiction over the case in terms of section 130(2) read with section 254(3) and as such the service of the order should be made on him. A copy of the communication to the Registry should be endorsed to the concerned Commissioner alongwith a copy of Tribunal's order made out by him. (c) The transferee Commissioner as soon as he receives the endorsed copy of the letter addressed to the Registrar, Appellate Tribunal enclosing therewith a copy of the Tribunals order, will, if the case deserves to be contested, file a reference application under section 256(1) within 60 days from the date of service on the transferring Commissioner. In case it is not possible to do so, the Commissioner can invoke proviso to Section 256(1) and request the Appellate Tribunal to allow the application to be presented within a further period of 30 days. This procedure has been suggested by way of abundant caution. (d) In a case where the transfer of jurisdiction has taken place after the Tribunal passed the order under section 254(10), the procedure indicated above in (b) will not apply. Here the service of the Tribunal's order on the transferring Commissioner will be valid notwithstanding the transfer of case records to another Commissioner's Charge before the date of such service. Therefore, the transferring Commissioner will immediately forward the Tribunal's order to the concerned Commissioner for necessary action. The limitation will run from the date of service of the order on the transferring Commissioner. 3.2 In some of the cases where the change of jurisdiction takes place and there is consequent change of address of the ITO, the Departmental Representative is likely to know the fact of such change. It is, therefore, expected of the concerned D.R that he should bring to the notice of the Tribunal consequential change of address. The performa for such communication from the D.R may be on the lines of ANNEXURE A without any endorsement thereto. 4. The above instructions should be brought to the notice of all the officers working in your Charge.