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TMI Blog2012 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... t u/s. 148 - before issuing notice u/s. 148, ACIT had obtained approval of Addl. CIT, Range IV, Agra, otherwise if he had no jurisdiction over the case of the assessee on the date of approval, the ld. Addl. CIT, Range, would not have granted him approval - as the issue of jurisdiction in favour of the Revenue, therefore, the orders on penalties are also set aside and the penalty appeals are restored to the file of ld. CIT(A)to decided afresh - in favour of revenue. - ITA No. 471 to 476/Agra/2011 - - - Dated:- 8-6-2012 - SHRI BHAVNESH SAINI, AND SHRI A.L. GEHLOT, JJ. Appellant by : Shri Atesham Ansari, Jr. D.R. Respondent by : Shri P.N. Agarwal, Advocate ORDER Per Bhavnesh Saini, JM: All the departmental appeals are directed against the common orders of ld. CIT(A)-II, Agra dated 27.09.2011 for the assessment years 1998-99, 1999-2000 and 2000-01. In three appeals, the Revenue challenged the order of the ld. CIT(A) in annulling the re-assessment proceedings u/s. 148 of the IT Act because of lack of jurisdiction with the Assessing Officer and in further three appeals, the revenue challenged the orders of the ld. CIT(A) in canceling the penalties u/s. 271(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT Hq. in respect of cases of the assessee or any of the assessee whose cases only relating to AY 2001-02 were assigned to ACIT Hq. 6. The ACIT Hq. was not holding the jurisdiction over the assessee s case relating to any year other than AY 01-02. 7. The notice u/s. 148 issued and signed on 31.3.04 by the ACIT Hq. is void illegal and without jurisdiction. 8. That ultimately the assessment is completed by ITO 4(3) Agra who was holding the initial jurisdiction. 9. That no notice u/s. 148 is issued by the ITO 4(3), Agra who finally made the assessment. 3.2 The ld. CIT(A) considering the explanation of the assessee and the material on record annulled the reassessment orders on the point of jurisdiction only and allowed all the appeals of the assessee without deciding the other issues on merits. The findings of the ld. CIT(A) in para 2.1 to 3 of the impugned order are reproduced as under: 2.1 I have examined the matter and find that Commissioner of Income-tax-II, Agra had passed an order dated 21.1.04 which reads as under- In exercise of powers conferred on me u/s. 120(2) read with sec. 120(5) of the IT Act, 1961, it is hereby ordered that Shri Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and the matter restored back to him with the direction to pass speaking order therein and also dispose of all other issues afresh including those on merit on which Revenue have preferred appeal. He shall afford proper opportunity of being heard to the parties in all the three years under appeal. As a consequence of this, the cross appeals by both the parties and the cross objection for the AY 99-2000 stand allowed for statistical purposes only. It will seen from the above, the Hon ble ITAT, Agra also directed the CIT(A) to dispose of all the issues afresh including all those on merits on which revenue has preferred appeal. However, I am of the opinion that as I have annulled the assessments on the point of jurisdiction, it is not necessary to decide other issues on merit which had already been decided by my predecessor and no adverse comments have been given by the Hon ble ITAT, Agra with regard to his findings. 3. In the result, the appeals are allowed. 4. The ld. DR relied upon the orders of the AO and referred to Jurisdictional order of CIT-II, Agra dated 21.01.2004 reproduced above and submitted that the ld. CIT-II, in exercise of powers conferred u/s. 120 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Therefore, the ld. CIT(A) was not justified in annulling the re-assessment proceedings and was also not justified in deleting the penalties consequently. 5. On the other hand, the ld. counsel for the assessee reiterated the submissions made before the authorities below and referred to PB-13, which is jurisdictional order of ld. CIT-II, Agra dated 21.01.2004 and PB-11, which is jurisdictional order of Addl. CIT, Range-IV, Agra dated 23.01.2004, whereby Shri Sampoornanand, ACIT (Hq./Admn.) was assigned concurrent jurisdiction for the assessment year 2001-02 only. Therefore, he has submitted that Shri Sampoornanand, ACIT was having no jurisdiction over the cases of assessee for the assessment years under appeals, i.e., 1998-99, 99-2000 and 2000-01. He has submitted that since specific work was assigned to Shri Sampoornanand, ACIT and no order was passed assigning him the work to dispose of the cases for the assessment years under appeals, therefore, the ld. CIT(A) was justified in annulling the reassessment orders for want of jurisdiction in favour of Shri Sampoornanand, who has issued the notice u/s. 148 of the IT Act in these cases. He has submitted that the assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me void for want of jurisdiction Held, yes. 6. We have considered the rival submissions and the material on record. It is not in dispute that the Assessing Officer Circle 4(3), Agra, who has passed the impugned assessment orders was having jurisdiction over the cases of the assessee for passing the regular assessment orders and the assessee also filed original return of income in the same ward. It is also not in dispute that CIT-II, Agra vide his jurisdictional order and in exercise of powers conferred on him u/s. 120 of the IT Act has passed the order dated 21.01.2004, whereby it was ordered that Shri Sampoornanand, ACIT will have concurrent jurisdiction in respect of the cases falling in the jurisdiction of Assessing Officer, Circle 4(1), Agra. It was also directed that this concurrent jurisdiction will be in addition to the work already assigned at present to Shri Sampoornanand. It was also directed that the Addl. CIT Range-IV, Agra will issue orders regarding the specific work to be assigned to Shri Sampoornanand (PB-13), which is also reproduced in the findings of the ld. CIT(A) above. Page 11 of the paper book is the order dated 23.01.2004 passed by Addl. CIT, Range-IV, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment proceedings for the assessment year 2001- 02, it was observed on the basis of incriminating material that various undisclosed income pertain to the assessee for the assessment years under appeals. Therefore, with the approval of Addl. CIT, Range IV, Agra, notice u/s. 148 was issued on 31.03.2004. The assessee raised objection of jurisdiction before the AO, which was rejected because the ACIT, Shri Sampoornanand was assigned concurrent jurisdiction over the cases falling under the jurisdiction of Assessing Officer Circle 4(1), Agra in addition to his duties already assigned to him and further scrutiny cases allotted to him for subsequent assessment year. Therefore, the objection of the assessee was rejected. It is, therefore, clear from the above facts that Shri Sampoorananand, ACIT was having concurrent jurisdiction over the cases of the assessee for the assessment years under appeals as per order of CIT-II and Addl. CIT, Range-IV, Agra. Therefore, the ld. CIT(A) should not have quashed the reassessment proceedings on this ground. 6.1 We may further note that apart from the above findings, the matter/issue under consideration shall have to be considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders issued under subsection (1) or sub-section (2) of section 120. 6.2 On reading the provisions of section 124 (2) of the IT Act above, the issue of jurisdiction to assess the person shall be determined by the Director General, Chief Commissioner or the Commissioner or in other cases, by the Board and sub-sec.(4) of section 124 provides that where the assessee questioned the jurisdiction of the AO as per section 124(3), then the AO shall, if not satisfied with the correctness of the claim of the assessee, refer the matter for determination under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncies of tax collection and the answer to the second question is that, under the Act, a defect arising from allocation of functions is a mere irregularity which does not affect the resultant action. 6.4 The ITAT, Delhi Bench in the case of Triveni Engineering and Industries Ltd. vs. DCIT, 280 ITR (AT) 210 (Delhi), following the above decision of Hon ble Allahabad High Court, decided the issue against the assessee. 6.5 The judicial Dictionary, 13th Edition (K.J. Ayer), Butterworths India, provides the definition of concurrent as acting in conjunction, agreeing in the same act, contributing to the same event, contemporaneous. The word concurrent jurisdiction means the jurisdiction of several courts both authorized to deal with the subject matter at the choice of the suitor. In the present case, it is not in dispute that the CIT-II while passing the jurisdictional order u/s. 120 of the IT Act assigned concurrent jurisdiction in favour of Shri Sampoornanand, ACIT, who has issued notice u/s. 148 of the Act in the case of assessee in respect of the cases falling in the jurisdiction of AO, Circle 4(1), Agra to which circle, the case of the assessee also falls. He was assigned thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the above relevant provisions of law and have not considered the decision of jurisdictional Allahabad High court referred to above. Therefore, the same cannot be given precedence over the decision of Hon ble Jurisdictional High Court. We accordingly, set aside the order of the ld. CIT(A). Since the ld. CIT(A) has not decided the appeals on merits, therefore, the matter shall have to go back to him for deciding the appeals on merits. In view of the above, we set aside the order of the ld. CIT(A) in annulling the re-assessment proceedings on the issue of jurisdiction and restore the appeals of the assessee to his file with direction to decide all the three appeals on merits on all points in accordance with law on all submissions raised by the assessee before him other than jurisdiction of the AO. The ld. CIT(A) shall give reasonable and sufficient opportunity of being heard to the assessee and the AO. In the result, all the three appeals of the Revenue on quantum are allowed. 7. So far as the departmental penalty appeals are concerned, we find that since the ld. CIT(A) annulled the reassessment proceedings on the issue of jurisdiction, therefore, he has cancelled the penalti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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