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TMI Blog2007 (12) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... ial questions of law would arise for determination of this Court : (a) Whether on the true and correct interpretation of provisions of s. 124 of the IT Act, 1961, the Tribunal is justified in upholding the action of assumption of jurisdiction with the AO whereas the same vests with the Director General or Chief CIT or CIT respectively ? (b) Whether the order of the Tribunal is against the object of the provisions of the IT Act, 1961, read with beneficial and reasonable rules of interpretation in fiscal statute ? (c) Whether the order of the Tribunal is perverse justifying the action of the AO by obliterating the administrative decision making process prescribed under s. 124 of the IT Act, 1961 ? 2. Brief facts of the case are that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO was liable to be set aside because it was without jurisdiction. The CIT(A) set aside the assessment order and directed the AO to make fresh assessment after affording an opportunity of being heard to the appellant-assessee. In respect of the legal ground concerning jurisdiction raised by the appellant-assessee, the CIT(A) opined that it did not require any adjudication. The appellant-assessee went in appeal before the Tribunal challenging the order of the CIT(A). The argument that the order passed by the AO, Sirsa, was without jurisdiction, has been rejected by the Tribunal by placing reliance on s. 124(3) of the Act. The view of the Tribunal is discernible from paras 11 and 12, which read as under : "11. Though in para 7 of the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the considered view that the AO was having valid jurisdiction over the assessee's case and that the assessee had at no point of time questioned the jurisdiction of the AO in the course of assessment proceedings. We would also like to point out that the AO has given valid reasons for not acceding to the request of the assessee to transfer the case records to the AO at Delhi. We have also elsewhere mentioned in this order that at one point of time the AO had transferred the assessment records to the AO at New Delhi but the same were returned to the AO at Sirsa as no person was found to exist at the address given by the assessee. This is without prejudice to our finding that assessee had never questioned the jurisdiction of the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once in response to notice under s. 142(1), dt. 25th Feb., 1993, return was filed on 1st March, 1993 before the due date i.e. 15th March, 1993, then as per provisions of sub-s. (3)(b) of s. 124 of the Act, the assessee was not entitled to call in question the jurisdiction of the AO, especially when it is not disputed that the assessee was carrying on his business in Shop No. 62, Nai Mandi, Sirsa. 5. Having heard learned counsel for the parties at a considerable length, we find that the questions of law deserve to be answered against the appellant-assessee. It would be appropriate to make a reference to the provisions of s. 124 of the Act, which read as under : "124. Jurisdiction of AO'(1) Where by virtue of any direction or order issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made no such return, after the expiry of the time allowed by the notice under sub-s. (1) of s. 142 or under s. 148 for the making of the return or by the notice under the first proviso to s. 144 to show cause why the assessment should not be completed to the best of the judgment of the AO, whichever is earlier. (4) Subject to the provisions of sub-s. (3), where an assessee calls in question the jurisdiction of an AO, then the AO shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-s. (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under s. 120, every AO shall have all the powers conferred by or under this Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to conclude that the AO was under obligation to refer the question of jurisdiction to the Director General or Chief CIT as per the provisions of s. 124(2) r/w s. 124(4) of the Act, as is contended by learned counsel for the appellant-assessee. 8. We are further of the view that it would not make any difference even if at one stage accounts for asst. yr. 1992-93 were transferred to New Delhi, which were returned to the AO, Sirsa, because there was no effective transfer of record. Moreover, the substantial business in the financial year 1992-93 was transacted at Sirsa. The argument that the record at one stage was transferred and, therefore, the assessment order passed by the AO at Sirsa is bad cannot be accepted and we have no hesitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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