9911796707
TMI Blog2017 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... The return of assessee was processed u/s. 143(1) on 17-04-2011. Originally, the registered office of the assessee company was situated at Mumbai. The assessee shifted its registered office from Mumbai to Pune. The Registrar of Companies, Maharashtra issued certificate of Transfer of Registered office to the assessee on 13-04-2011. The assessee vide letter dated 05-10-2012 informed the Income Tax Officer, Ward-3(1)(3), Mumbai regarding change in address of the assessee company from Mumbai to Pune. 2.1 The case of assessee was selected for scrutiny under CASS, statutory notice u/s. 143(2) was issued to the assessee on 26-08-2011. The assessee had entered into international transactions during the period relevant to assessment year 2010-11, therefore, reference u/s. 92CA(1) was made to Transfer Pricing Officer (TPO) by the Assessing Officer to determine Arm's Length Price (ALP) of international transactions with AEs. The TPO vide order dated 30-01-2014 made adjustment of Rs. 6,36,13,021/-. 2.2 On the basis of order passed by the TPO, the Assessing Officer made Draft Assessment Order u/s. 144C(1) of the Act on 10-02-2014. Against the said order, the assessee filed objections before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14-11-2014. The ld. AR submitted that a perusal of letter dated 04-12-2016 (at page 10 of Paper Book-II) written by the ITO, Ward-3(1)(3), Mumbai to Commissioner of Income Tax, ITAT-II, Pune would show that the Assessing Officer was aware that the jurisdiction in the case of assessee has been transferred from Mumbai to Pune before passing of the assessment order. The Assessing Officer passed the impugned order only because PAN was still lying with ITO, Ward-3(1)(3), Mumbai. The ld. AR contended that the Permanent Account Number (PAN) of the assessee was transferred from Ward-3(1)(3), Mumbai to Circle-3(1)(1), Mumbai w.e.f. 18-12-2014. In support of his submissions the ld. AR referred to information obtained from official website of the Department placed on record at page 11 of the Paper Book-II. The ld. AR submitted that due to the fact that the PAN of the assessee was already transferred from ITO, Ward-3(1)(3), the communication dated 19-12-2014 from the office of Commissioner of Income Tax-3, Mumbai at page 7 of the paper book was never communicated to the ITO, Ward- 3(1)(3). The ld. AR referred to the list of officers/officials to whom the copy of said communication was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order has been passed by the Assessing Officer located at Mumbai, the Pune Benches of the Tribunal does not have jurisdiction to entertain the appeal of the assessee. In support of his submissions, the ld. DR placed reliance on the decision of Lucknow Bench of the Tribunal in the case of Assistant Commissioner of Income Tax Vs. Smt. Lata Jain reported as 56 SOT 102. The ld. DR submitted that in the present case, the Commissioner of Income Tax (Appeals) had transferred the jurisdiction u/s. 120 of the Act and not u/s. 127. The ld. DR referred to the letter dated 03-05-2016 at page 13 of the Paper Book-II, wherein the ITO - 3(1)(3), Mumbai had clarified that section 127 was wrongly mentioned in the previous letter. In fact the order regarding change in jurisdiction was passed in the case of assessee u/s. 120 of the Act. The ld. DR further submitted that normally effective date of transfer is mentioned in the letter where the jurisdiction is transferred. However, in certain cases effective date is not mentioned in the order of transfer of jurisdiction to enable the ITO to perform his statutory duties which may become time barred if jurisdiction is transferred in between. In the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) or (2) of section 120 of the Act. 4.3 The ld. DR asserted that the assessee had not filed any objection before the Assessing Officer questioning his jurisdiction over the case file of assessee. Further, the assessee had not filed any objection before the concerned Principal Commissioner of Income Tax or Commissioner of Income Tax after having come to know that the jurisdiction of the Assessing Officer has been transferred. The ld. DR contended that assuming but not admitting that even if the order of transfer of jurisdiction was passed prior to the passing of the assessment order, the same was not communicated to the Assessing Officer till the passing of the assessment order. Therefore, the Assessing Officer was not aware of any such order of transfer of jurisdiction. Thus, the Assessing Officer was justified in passing the assessment order. 5. The ld. DR controverting the contentions of the assessee that the order transferring the jurisdiction in the case of assessee was passed on 14-11-2014 submitted that the order No. MUM/Pr. CCIT / ADMN / CADRE RESTRUCTURING/2014-15 dated 14-11-2014 was with respect to allocation of posts as per Cadre Restructuring Plan issued by the Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the Assessing Officer ceases to have jurisdiction over assessee, as soon as Commissioner of Income Tax passes the order regarding change of jurisdiction. Shifting of PAN and handing over of files from existing Assessing Officer to new Assessing Officer is consequential to change of jurisdiction. The PAN follows the jurisdiction. To substantiate his contentions, the ld. AR placed reliance on the letter of Director of Income Tax (Systems) dated 16-09-2014. To further fortify his point the ld. AR draws support from following decisions : i. Fiat India Automobiles Ltd. Vs. Virendra Singh, Asstt. Commissioner of Income Tax, 254 CTR 345 (Bom); ii. Chanakya Finvest (P.) Ltd. Vs. ITO, 34 taxmann.com 206 (Kolkata-Trib.). The ld. AR vehemently prayed for setting aside the assessment order being null and void and allowing the appeal of the assessee on the ground of jurisdiction alone. 7. We have heard extensive submissions made by the representatives of rival sides and have perused the orders of authorities below. We have also considered various documents and decisions relied on by both the sides. The assessee in appeal has assailed the assessment order passed u/s. 143(3) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer in the case of assessee. The ld. AR has further contended that jurisdiction and PAN of the assessee was transferred on 18-12-2014 to Circle 3(1)(3) i.e. before passing of assessment order by ITO, Ward-3(1)(3), Mumbai. Thus, on the date of passing of the assessment order the ITO, Ward-3(1)(3), Mumbai had no jurisdiction over the case file of the assessee. 10. Both the sides have placed reliance on jurisdiction history details drawn from official website of the Department and placed on record at page 11 of the paper book-II filed by the assessee. The relevant extract of same is reproduced here-in-below : Jurisdiction History Details S. No. PAN Transfer From Transfer To Transfer Order No. Transfer Date 1 AABCV9569K CIRCLE 3(1)(1), MUMBAI CIRCLE 1(1), PUNE 104002957102 29/Dec/2014 2 AABCV9569K WARD 3(1)(3), MUMBAI CIRCLE 3(1)(1), MUMBAI 104002931447 18/Dec/2014 3 AABCV9569K WARD 3(1)(4), MUMBAI WARD 3(1)(3), MUMBAI 104000647839 26/Feb/2009 4 AABCV9569K OLD WD 15(1)-3 MUMBAI WARD 3(1)(4), MUMBAI 10200069694 18/Jun/2008 A perusal of the above chart shows that before the date of passing of the impugned order PAN of assessee was transferred fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional High Court observed that, once the jurisdiction to assess the petitioner was transferred by the CIT10 Mumbai vide order dated 22-11-2011 from ACIT 10(1) Mumbai to DCIT Circle 1(2) Pune, the ACIT10(1) Mumbai have no power to assess or reassess the petitioner. Thus, from the observations of Hon‟ble High Court it can be safely construed that the effective date of transfer of jurisdiction is the date of order passed by Commissioner of Income Tax and not the transfer of PAN. 13. It is a fundamental principle acknowledged by Hon‟ble Apex Court that any order or decree passed by any court or quasi judicial authority without jurisdiction is a nullity. A defect of jurisdiction, whether it is pecuniary or territorial strikes at the very authority of court passing such order. The defect in jurisdiction is an incurable defect which cannot be cured by consent of both the parties to lis. In the present case the effective date of transfer of jurisdiction is 19-12-2014 i.e. the date of order by Commissioner of Income Tax-3, Mumbai transferring the jurisdiction. The assessment order passed by the Assessing Officer at Mumbai on 24-12-2014 i.e. after the date of transfer of juri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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