9911796707
TMI Blog2012 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi and ACIT Noida has no jurisdiction to issue these notices u/s 147/148 and the subsequent transfer of jurisdiction dated 9-3-2004, is in contravention of Sec. 127, as statutory opportunity of hearing was not given to assessee. These issues have been raised by following grounds: "On the facts and circumstances of the case the learned CIT(A) has erred:- 1. In confirming the order of the ACIT Circle Noida passed u/s 144/147 who lacked jurisdiction to issue notice u/s 148 dated 27-3-2003 for A.Y. 1996-97 to 2001-02 & 31-3-2003 for A.Y. 2002-03 and subsequent proceedings u/s 142(1) in pursuance thereto, before the transfer of jurisdiction over the assessee from Delhi to Noida w.e.f. 9-3-2004, thus making the order of reassessment passed by the AO Noida illegal/ ab initio void, as no notices u/s 148 were issued to the assessees after 9- 3-2004 when the jurisdiction over the assessee's case was transferred from ITO Ward 33(2) to ACIT Noida. 2. In ignoring the Chief Commissioner of Income tax Meerut letter dated 3-3-2004 regarding the jurisdiction status of the assessee in Delhi & the need to get the jurisdiction transferred over the assessee from Delhi to Noida under speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment with immediate effect. Sd/- (Commissioner of Income Tax) Delhi-XI, New Delhi. 3.1. A perusal of the order u/s 127(2) and record clearly reveals that: (i) It has not been disputed by department that prescribed opportunity of hearing before transfer was not given to assessee. (ii) Even if unsustainable transfer is assumed to be correct then the jurisdiction was vested in ACIT, Noida w.e.f. 19-3-2004. Notice u/s 147/148 were issued prior to that date i.e. 9-3-2003 & 31-3- 2003 (AY 2202-03) (iii) From the address given in the order it is clearly revealed that Shri Deepak Gupta was assessed by ITO, Delhi with residential address at Karol Bagh, Delhi. This order has not been disputed by the department. (iv) Therefore, a plain perusal of this order clearly reveals that prior to 9-3-2004 assessee was assessed by ITO, Ward-33(2), New Delhi. 3.2. These impugned 148 notices in this case were issued by the ACIT Noida on 27-3-2003 for A.Y. 1996-97 to 2001-02 & on 31-3-2003 for A.Y. 2002-03, which are prior to the purported date of transfer of the jurisdiction from Delhi to Noida. This 127(2) order is also unsustainable because no statutory opportunity of hearing before transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvey the following:- ACIT, Noida assumed jurisdiction over M/s Aurum Jewellery Export Pvt. Ltd., 167, NEPZ Noida by virtue of issue of notice u/s 148 dated 27-03-2002 for A.Y. 95-96. Thereafter in case of Mr. Deepak Gupta notice u/s 148 for the A.Y. 1996-97 to 2001-02 and notice u/s 142(1) for A.Y. 2002- 03 were issued on 27-3-2003 and in the case of Smt. Urmila Gupta also notice u/s 142(1) for the A.Y. 2002-03 was issued on 27-03-2003. from the perusal of the record it is seen that these notices were served by affixture and there was no regular service of notices. However prior to this, as reported by ACIT Noida, Sh. Deepak Gupta and Smt. Urmila Gupta have been filing returns regularly in the respective wards at Delhi. The information in this regard was communicated to ACIT, Noida and the same is as follows: Name of the Assessee A.Y. Date of filing the return Ward/ Circle Sh. Deepak Gupta 00-01 26-09-2000 Ward-33(2),Delhi -do- 01-02 20-09-2001 -do- -do- 02-03 10-09-2002 -do- Smt.Urmila Gupta 00-01 29-09-2000 Ward-27(4),Delhi -do- 01-02 26-09-2001 -do- -do- 02-03 08-10-2002 -do- From the above facts it is obvious that Sh. Deepak Gupta & Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed. In this backdrop ld. counsel contends that assessee was filing his return of income for following years with ITO Delhi. S.No. Asstt. Yr. Date of filing of return in Delhi. 1. 1993-94 28-3-1994 2. 1994-95 18-2-1995 3. 1995-96 15-11-95 4. 1996-97 17-1-1997 5. 1997-98 22-2-1998 6. 2000-01 26-9-2000 7. 2001-02 20-9-2001 8. 2002-03 10-9-2002. 3.11. The assessee was consecutively assessed at Delhi for number of years, is demonstrated by these undisputed facts. Unfortunately sort of dispute erupted between assessee and one high rank officer of the Income-tax Department Shri Bani Singh S/o Ram Lal. Due to impending disputes officer started causing trouble for the assessee and as he could not influence the Income-tax Authorities at Delhi, efforts were made through Noida CIT by issuing these notices u/s 148. The assessee went on objecting to the jurisdiction and communicating to the departmental authorities about the arbitrary acts of ACIT, Noida and his inability to submit to this illegal jurisdiction. Assessee's objections were ignored and this led to arbitrary ex parte assessments, creating huge demand. Since the assessee could not get the justice f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my case to Delhi income tax department. On subsequent hearing you informed to my counsel that you have sent your recommendations to transfer the case from Noida to Delhi for approval of commissioner of income tax but till date I have not received any information regarding that. As per the Law of Income Tax Act prevailing in India, the assessee has to file the Income Tax Return at one place and the department has to assess him at that place only. According to this also the assessment of my case should be done by the Assessing Officer of Ward no. 33(2), where I am regularly filing my Income tax return. Since I am filing my income tax return and assessed at Delhi in ward no. 33(2), the copy of same is again attached for your kind reference therefore once again you bare requested to send my case to Delhi where I am filing my income tax return and assessed regularly, otherwise I ha no choice to move to the High Court for transfer of my case, release the seized properties as well as against illegal harassment made to me by the Income Tax Department, Noida. Thanking you Yours faithfully, Sd/- (Deepak Gupta) 6/110, Sector-2, Rajender Nagar, Ghaziabad (UP) Copy to : 1. The Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city to another; (ii) Delhi and Ghaziabad are practically same city. On the other hand while transferring the jurisdiction of assessee's wife Smt. Urmila Gupta in similar order u/ 127(2) dated 16-3-2004, CIT Delhi notice of hearing was given which is evident from the order. 3.16. CIT(A) in the appellate order dated 7-2-2011 held that ACIT, Noida had valid jurisdiction over the assessee on following considerations: (i) Without refuting assessee's claim that no 148 notice dated 27-3-2003 was not served on him. It has been held that as per I.T. Law and Civil Procedure Code, notice u/s 148 is deemed to be served on 27-3-2003 on the assessee; and Shri Deepak Gupta should have objected on the issue of jurisdiction at the most by 27th April, 2003. As no such objection was raised by him within the stipulated time, jurisdiction of ACIT, Noida can not be challenged. (ii) As an abundant precaution, the AO took all pains to get the assessee's case transferred from ITO Ward 33(2) Delhi to him. In exercise of power conferred by sub-section (2) of section 127 of the I.T. Act, 1961 and other powers enabling him in this behalf the Commissioner of Income Tax Delhi XI, New Delhi has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta neither filed any return nor filed any letter of objection regarding jurisdiction within the stipulated period. (vii) Order of DGIT (Inv.) Lucknow clearly held that ACIT, Noida had valid jurisdiction over assessee. (viii) Assessee's bank a/cs have Noida address and assessee had used Noida address also. (ix) Reliance was placed on M/s Amulya General Trading & Agencies Ltd. Vs. ACIT (1998) 65 ITD 329 (Del.), observing as under: "Section 124, read with section 120, of the Income tax act, 1961 - Income-tax authorities - Jurisdiction of - Assessment years 1988-89 to 1992-93 Assessee - company was not only carrying on business at Delhi but also had its head office there. No material was available to show that it had earned any part of its income at Ghaziabad - it filed returns before Assessing Officers at Delhi and Ghaziabad - pm 14-02-1996, order u/s 124(2) was passed by Chief Commissioner, Delhi in connection with assessment year 1986-87 assessing jurisdiction over assessee company to Assessing Officer, Delhi- For years under consideration. Assessing Officer, Delhi passed assessment orders on 08-03-1996 in pursuance to notice u/s 148 issued on 17-01-1994, that is prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut verifying the fact about service on the assessee, the service has been deemed because notices were issued. It has been held that assessee should have objected to the jurisdiction by 27-4-2003, ignoring that assessee had filed proper objections with all the details about the non service of notice before various competent authorities. Authorities knew that the assessee was assessed at Delhi, however deliberately did not even consider the statutory objections raised by the assessee and no step was taken to correct their mistake by either transferring the material available with them to AO, Delhi or immediately asking the CIT, Delhi to transfer jurisdiction to ACID, Noida. (ii) It is a case where department is sitting silent over the specific objections raised by the assessee and to rub salt to the injury it is being accused, that assessee did not object to the jurisdiction by 27-4-2003, thus ACIT, Noida is vested with the jurisdiction. It is being conveniently forgotten that even in case assessee does not object, sec. 124(3) is not applicable to assessee inasmuch as the assessee has already submitted his return of income for A.Y. 1996- 97 on 17-1-1977 and for subsequent years as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al purposes are same locality and place, it is vehemently argued that ld. CIT(A)'s findings have no legs to stand and they are self contradictory. Income-tax department itself regards Delhi and Noida as two different geographical locations in terms of city and state, as the Noida comes under U.P. state. As per the departmental hierarchy there are separate CCIT as they are treated as two different charges, therefore, there is no merit in CIT(A)'s finding. The I.T. Act has a clear statute on this issue which cannot be interpreted on the basis of practical purposes meanings. When there is a specific statute governing the issue, the same cannot be whished away on the basis of practical purposes. 3.23. The observation that assessee had a bank A/c and address in Noida has no relevance inasmuch as any assessee can maintain bank a/cs and addresses of domicile at various places depending on exigencies. However, for the purpose of income-tax there is always one assessing jurisdiction and merely because the assessee had Noida Bank a/c and address will not take away the stark fact that assessee was undisputedly assessed at Delhi, which none of the authorities has denied. 3.24. Relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers to whom the case is to be transferred are not subordinate to the same Director General of Chief Commissioner or Commissioner, - (a )Where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b)Where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transfer ring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by Notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, past or future, and even to re-open the assessment for an earlier year which stood completed at the date of the transfer. It is clear that in the absence of any transfer order no Assessing Officer other than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to re-open a concluded assessment. It is common ground between the parties that the file of the petitioner pertaining to the assessment year 1988-89 has not been transferred from the jurisdiction of Assessing Officer, Pune to the ITO, Jalandhar (respondent No. 2) herein. As a matter of fact, no order of transfer has been passed by the competent authority under section 127 for any assessment year and, therefore, the proceedings for re-assessment initiated by respondent No. 2, are wholly without jurisdiction. We have, therefore, no hesitation in quashing the impugned notice dated 13-3-1995 (Annexure P-4 with the writ petition) issued by respondent No. 2 under section 148. 5. It was also contended on behalf of the petitioner that respondent No. 2 did not have sufficient material before him for re-opening the assessment proceedings and that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee can challenge the issue of jurisdiction only by way of writ petition and not in the assessment proceedings and assessee having not raised the objection as to jurisdiction at the appropriate time before AO, cannot be permitted to take the issue in appeal. 5. In rejoinder, learned counsel for the assessee contends that ld. DR has so far not been able to demonstrate the disputed fact that assessee was assessed at Delhi and the departmental authorities could transfer the jurisdiction as per law and not as per their whims. PAN nos. are issued universally by Noida office of the Income-tax department, same does not decide the lawful jurisdiction and in any case the PAN number requirement came much later, the assessee was being assessed at Delhi much earlier, since A.Y. 1996-97, which fact has not been disputed. 5.1. Ld. DR has not been able to dispute the fact that while passing the impugned order u/s 127 dated 9-3-2004, opportunity of hearing was not given to the assessee by CIT, Delhi. . 5.2. The Hon'ble Punjab & Haryana High Court's judgment in the case of Smt. Jasvinder Kaur (supra) is not applicable as the issue of jurisdiction was raised much later. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could dispute this fact. Ld. DR has only argued that it is an administrative order and denial of opportunity of hearing is not appealable, therefore, no prejudice is caused to the assessee. We are unable to agree with ld. DR. Statutory requirements are always mandatory irrespective of the fact whether the same is appealable or not, therefore, any transfer order passed u/s 127(2) of inter charge jurisdiction , without complying with the statutory requirement of giving opportunity of being heard to the assessee is invalid. 6.3. Hon'ble Delhi High Court's judgment in the case of Melco India Pvt. Ltd. & others (supra) is binding on us and observations are to be followed with utmost respect. Respectfully following the Hon'ble Delhi High Court judgment in the case of Melco India Pvt. Ltd. & others (supra), which in turn followed Vijay Shanti Investment passed by the CIT, Delhi, cannot be sustained as no notice was issued to the Pvt. Ltd. 187 ITR (Del), we hold that transfer order u/s 127 dated 9-3-2004 assessee giving opportunity of being heard about the transfer of jurisdiction. In view of these facts and observations we hold that order of CIT, Delhi dated 9-3-2004, transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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