9911796707
TMI Blog2015 (3) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of series of judgments, the plea of the respondents regarding maintainability of writ petition is rejected. Validity of notice u/s 143 - change of jurisdiction - right to choose principal place of profession - notice issued by the DCIT, Range-II, Lucknow u/s 143(2) on the ground that the said notice is de hors the provisions contained in section 124 of the Act and in excess of the jurisdiction vested in opposite party No. 2 (Deputy Commissioner of Income- tax, Range-II, Lucknow) - According to the petitioner, he is practising legal profession at the hon'ble Supreme Court and Delhi High Court besides having practice at Lucknow. He has offices at New Delhi and Lucknow ; and has a right to choose his principal place of profession, which he has chosen and shifted to Delhi where he has taken premises on lease and his address is D-27, East of Kailash, New Delhi - HELD THAT:- the territorial jurisdiction which has to be vested with the assessing authority is to be determined by the Chief Commissioner or Commissioner on the basis of principal place at which the assessee is carrying on his business or profession and in respect of others, the person residing within the area. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his returns at Lucknow up to the assessment years 2011-12 as his place of principal business was within the territorial area which was assigned to the Assessing Officer, Range- 2, Lucknow by the competent authority in exercise of the powers under section 120(3) of the Income-tax Act, 1961. From the assessment year 2012-13, relating to the financial year 2011-12, the petitioner has shifted his place of business at New Delhi and accordingly filed his Income-tax return at Delhi. Later on, a notice under section 143(2) of the Income-tax Act was issued by the Assessing Officer, Range 2, to which the petitioner tendered his reply that he had already filed his return through e-filing at New Delhi, as he has shifted his place of principal business from Lucknow to New Delhi, copy whereof has been annexed as annexure No.SA3 to the supplementary affidavit. Thus, it has been contended that the assessing authority at Lucknow has no jurisdiction to issue the impugned show-cause notice dated September 11, 2013 in view of the provisions of section 124 of the Income-tax Act. 5. Mr. Alok Mathur, learned counsel for the Revenue raised a preliminary objection regarding maintainability of the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and not of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely (i) where the writ petition seeks enforcement of any of the fundamental rights ; (ii) where there is failure of principles of natural justice ; or (iii) Where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. 9. In Kamlakar Bhimrao Patil v. Maharashtra Industrial Development Corporation [2009] 2 SCC 655, the apex court, while considering a question as to whether a matter under Specific Relief Act, 1963 is entertainable by a writ court, held that the writ petition is maintainable. 10. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions contained in section 124 of the Act and in excess of the jurisdiction vested in opposite party No. 2 (Deputy Commissioner of Income- tax, Range-II, Lucknow). According to the petitioner, he is practising legal profession at the hon'ble Supreme Court and Delhi High Court besides having practice at Lucknow. He has offices at New Delhi and Lucknow ; and has a right to choose his principal place of profession, which he has chosen and shifted to Delhi where he has taken premises on lease and his address is D-27, East of Kailash, New Delhi. 15. Elaborating his submissions, learned Counsel for the petitioner has pointed out that after shifting of the place of profession, the petitioner has filed the return of income for the assessment year 2012-13 at New Delhi. Even the return of income for the assessment year 2013-14 has been filed at New Delhi. It has also been pointed out that the petitioner has carried out all the formalities for shifting the place of profession from Lucknow to New Delhi and requisite amendment in the permanent account number details has also been made. 16. Inviting our attention towards section 143 of the Act, learned counsel for the petitioner has subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritorial jurisdiction of the Deputy Commissioner of Income-tax, Range-II, Lucknow. Mere change in address in the return of income does not give any right to the petitioner to change his jurisdiction. It has further been argued that the case of an assessee can be transferred from one Assessing Officer to another by the competent authority only after passing order under the provisions of section 127 of the Act and the Deputy Commissioner understands that no such order has been passed in this case so far. Therefore, it is evident from the above that the case of the assessee falls in the jurisdiction of the Deputy Commissioner of Income-tax, Range-II, Lucknow and notice under section 143(2) was rightly issued by him under the provisions of the Act. 20. At this juncture, it would be useful to reproduce section 124 of the Act on which much emphasis has been laid : 124. Jurisdiction of Assessing Officers.-(1) Where by virtue of any direction or order issued under sub-section (1) or sub-section (2) of section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction- (a) in respect of any person carrying on a bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (1) or sub-section (2) of section 120. 21. On perusal of the aforesaid statutory provisions of section 124(1)(a) and (b), it is abundantly clear that the territorial jurisdiction which has to be vested with the assessing authority is to be determined by the Chief Commissioner or Commissioner on the basis of principal place at which the assessee is carrying on his business or profession and in respect of others, the person residing within the area. In case where the assessee raises any dispute, with regard to jurisdiction of any Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of claim, refer the matter for determination under section 124(2) before the assessment is made in view of the provisions of section 124(4). 22. As regards the question of determining the jurisdiction, we may point out that in CST v. Moti and Jawahar [1981] U.P.T.C. 428 ; [1982] 50 STC 172 (All), which has been relied upon by the petitioner, the court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the date of filing and if there is any concealment of income or the income is exorbitant, then a notice under section 143(2) of the Act has to be issued. In the absence of return, no such exercise was carried out by the assessing authority prior to issuing notice under section 143(2) of the Act. Further, no notice requiring the assessee to file returns under section 148 of the Act has been issued. Thus, we are of the opinion that the assessing authority has exceeded its jurisdiction while issuing notice under section 143(2) of the Act. 26. The issuance of notice dated September 11, 2013 by the opposite party No. 2 is palpably without jurisdiction inasmuch as a perusal of notice itself indicates that the address of the petitioner has been printed as D/27, East of Kailash, New Delhi, which has been scored out and substituted by the Lucknow address of the petitioner. We are also of the view that the assertion of the respondents that the assessment can be transferred from one Assessing Officer to another pursuant to orders passed by the competent authority under section 127 of the Act is in respect of proceedings which may be transferred from one Assessing Officer to anot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
