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TMI Blog2019 (12) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed for the assessment year 2006-07 in I. T. A. No. 5661/Mum/2017 are reproduced as under : "1. The learned Commissioner of Income-tax (Appeals) grossly erred in not appreciating the facts and in the circumstances of the case and in law that the notice under section 148 has been issued beyond the period of four years from the relevant assessment year and is issued in violation of mandatory condition provided in section 151 of the Act. 2. The learned Commissioner of Income-tax (Appeals) grossly erred in confirming the action of the Assessing Officer of reopening the assessment under section 147 by alleging that the appellant has undisclosed bank accounts with HSBC Bank Geneva without actually demonstrating that the alleged undisclosed bank account belonged to the appellant and or his family. 3. Without prejudice to ground Nos. 1 and 2 above, the learned Commissioner of Income-tax (Appeals) erred in facts and in law by confirming the additions made by the learned Assessing Officer of Rs. 14,75,59,256 (US$33,19,668) as peak balance held by the appel lant and/or his family members in the two alleged bank accounts of HSBC Bank Geneva. 4. The learned Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax (in short "JCIT") who passed the assessment order on the ground that unless the Joint Commissioner of Income-tax possessed valid jurisdiction and authority under section 120(4)(b) of the Income-tax Act, 1961, he cannot act as an Assessing Officer to pass the assessment order. But, fact remains that as per the provisions of section 124(3) of the Act, the issue of jurisdiction can only be questioned within the prescribed time allowed under the Act. In this case, the assessee had taken additional grounds for the first time before the Tribunal without raising any objection either before the Assessing Officer or the learned Commissioner of Income-tax (Appeals) and hence, the additional grounds raised by the assessee required fresh investigation into facts which are not on record, therefore he argued that additional grounds raised by the assessee should not be admitted. 6. We have heard the rival contentions of both the parties and perused material available on record. We find that additional grounds raised by the assessee by way of an application dated March 8, 2019 challenging the jurisdiction and authority of the Assessing Officer who passed reassessment order under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Commissioner of Income-tax who passed the reassessment order dated March 20, 2015 is vested with jurisdiction and authority to pass such order in absence of proper order under section 120(4)(b) of the Act. The learned authorised representative for the assessee submitted that the assessment order passed by the Joint Commissioner of Income-tax, Range-17(2), Mumbai is bad in law and liable to be quashed, because the Assessing Officer who passed the assessment order does not have authority and jurisdiction in absence of a proper order passed under section 120(4)(b) of the Act. The learned authorised representative for the assessee further submitted that as per the provisions of section 2(7A) of the Act, as it stood at that relevant period, the Assessing Officer means the Assistant Commissioner of Income-tax (in short "ACIT") or Deputy Commissioner of Income-tax (in short "Dy. CIT") or Assistant Director of Income-tax (in short "ADIT") or Income-tax Officer (in short "ITO") vested with the jurisdiction by virtue of orders issued under section 120(1) or (2) or any other provisions of the Act. The authorised representative further submitted that the Joint Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income-tax under section 120(4)(b) of the Act. Further, although the Revenue has filed order of the Principal Commissioner of Income-tax-17, Mumbai dated November 15, 2014 passed under section 120(1) and (2) of the Act, by virtue of notification of the Central Board of Direct Taxes October 22, 2014, but such notification is a general notification appointing or authorizing the Joint Commissioner of Income-tax/Additional Commissioner of Income-tax to act as an Assessing Officer in cases of persons or classes of persons. However, there is no specific order was passed under section 120(4)(b) of the Act, to authorize and empower the Joint Commissioner of Income-tax to act as an Assessing Officer. Therefore, the order passed by the Joint Commissioner of Income-tax, Range-17, Mumbai is void ab initio and liable to be quashed. In this regard relied upon the following judicial precedents : "1. Tata Sons Ltd. v. Asst. CIT [2017] 162 ITD 450 (Mum). 2. Microfin Securities (P.) Ltd. v. Addl. CIT [2005] 3 SOT 302 (Lucknow). 3. Asst. CIT v. Tata Sons Ltd. (I. T. A. No. 2519/Mum/2009 dated March 11, 2019). 4. Dy. CIT v. Ganesh Realty and Mall Development Pvt. Ltd. (I. T. A. No. 581/Kolk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no need of separate order under section 120(4)(b) of the Act, to act as an Assessing Officer, because the Central Board of Direct Taxes has issued a general notification and empowered Joint Commissioner of Income-tax/ Additional Commissioner of Income-tax to act as an Assessing Officer under this Act. The Departmental representative further submitted that as per the Board Notification No. 64 of 2014 dated November 13, 2014, the Board has directs that the Addl. Commissioners of Income-tax or the Joint Commissioners of Income-tax as the case may be shall exercise the powers and perform the functions of the Assessing Officer in respect of territorial areas or persons or classes of persons or incomes or classes of incomes or cases or classes of cases in respect of which such Additional Commissioners of Income-tax or Joint Commissioners of Income-tax are authorized by the Principal Chief Commissioner of Income-tax or Chief Commissioner of Income-tax or Principal Commissioner of Income-tax. In this case, the Principal Commissioner of Income-tax-17 has passed an order dated November 15, 2014 under section 120(1) and (2) of the Act, and empowered the Joint Commissioner of Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 120(4)(b) of the Act. Therefore, it is incorrect to argue that the Assessing Officer does not have valid jurisdiction to pass the reassessment order. 11. Per contra, the learned authorised representative for the assessee submitted that the Department is relying on the Order No. CIT/restructuring ; 2014/jurisdiction/2014-15 dated November 15, 2014, but fact of the matter is that said order is a general order passed under sub-sections (1) and (2) of section 120 of the Act, which conferred general jurisdiction to the Assessing Officer to act as an Assessing Officer in respect of persons or classes of persons. Further, the Department has again fail to establish that the Assessing Officer possess such jurisdiction conferred on him under section 120(4)(b) of the Act, and accordingly in absence of an order under section 120(4)(b) of the Act, conferring jurisdiction to the Joint Commissioner of Income-tax, the assessment order passed is without jurisdiction. The learned authorised representative further submitted that although the Delhi High Court has reversed the decision of Income-tax Appellate Tribunal Delhi in the case of Mega Corporation Ltd. v. Addl. CIT (supra), but the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Income-tax/ Additional Commissioner of Income-tax is empowered by the Board by a general or special order, authorising the Principal Chief Commissioner of Income-tax/Chief Commissioner of Income-tax or Principal Commissioner of Income-tax to empower the Joint Commissioner of Income-tax/Additional Commissioner of Income-tax by way of separate order under section 120(4)(b) of the Act, to act as an Assessing Officer. Further, as per provisions of section 120(4)(b) of the Act, the Board, may by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein, authorise any Principal Director General of Income-tax/ Principal Chief Commissioner of Income-tax/Chief Commissioner of Income-tax/Principal Commissioner of Income-tax to issue orders in writing that the powers and functions of an Assessing Officer to Joint Commissioner of Income-tax/Additional Commissioner of Income-tax in cases of persons or clause of persons, etc. If you go through provisions of section 2(7A) in conjunction with section 120(4)(b) of the Act, then it would be very clear that unless the Joint Commissioner of Income-tax/ Additional Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, he cannot act as an Assessing Officer and pass the assessment order consequently, the assessment order passed by the Assessing Officer is null and void ab initio and liable to be quashed. We further noted that the Tribunal while deciding the issue has considered a plethora of judicial decisions including the decision of co-ordinate Bench of Income-tax Appellate Tribunal, Mumbai in the case of TATA Sons Ltd. in I. T. A. Nos. 6981 and 7071/Mum/2005, where the Tribunal had elaborately discussed the issue in light of arguments advanced by both sides and also notification issued by the Central Board of Direct Taxes under section 120(4)(b) of the Act, in Notification No. 64 of 2014, dated November 13, 2014 and held that if the assessment order passed by the officer above rank of Joint Commissioner of Income-tax and Additional Commissioner of Income-tax, then such Assessing Officer should have valid jurisdiction/authority by virtue of an order passed under section 120(4)(b) of the Act. In absence of specific order under section 120(4)(b) of the Act, as well as section 127(1) of the Act, the Joint Commissioner of Income-tax cannot have valid jurisdiction and authority to perform fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Commissioner of Income-tax, Range-1(3) to the Additional Commissioner of Income-tax, Range-1(3) and secondly, whether the Additional Commissioner of Income-tax is vested with authority/jurisdiction to act/perform or exercise the powers of an Assessing Officer in respect of the present assessee. Before proceeding to decide the, issue, it is necessary to examine certain provisions of the Act. The expression "Assessing Officer" has been defined under section 2(7A) of the Act. The afore said provision as it existed during the relevant period is extracted hereunder for convenience : "2. Definitions.-In this Act, unless the context otherwise requires,-. . . . (7A) 'Assessing Officer' means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director or Joint Commis sioner or Joint Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid statutory provisions, we have to decide the issue raised before us. The specific contention of the assessee is, as per the pro visions of section 2(7A), as it existed at the relevant period, Additional Commissioner of Income-tax was not an Assessing Officer. It is fur ther submitted, even otherwise also, there is no notification/order empowering the Additional Commissioner of Income-tax to act as an Assessing Officer in terms of section 120(4)(b). To counter the afore said contention of the assessee, the learned Departmental represent ative has relied upon the following notifications. (i) Notification No. 228 of 2001 dated July 31, 2001 (ii) Notification No. MIC/HQ-1/Jurisdiction/2001-02 dated August 1, 2001 ; (iii) Notification No. ACIT, Range-1(3)/Jurisdiction/2001-02 dated August 8, 2001 ; and (iv) Notification No. 267 of 2001 dated September 17, 2001. 15. At this stage, we propose to deal with each of the aforesaid notification relied upon by the Department to establish the valid exercise of jurisdiction as an Assessing Officer by the Additional Commissioner of Income-tax. The first notification being Notification No. 228 of 2001 dated July 31, 2001, corresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with notification dated August 1, 2001, issued by the Commissioner of Income-tax, Mumbai, as it is a notification issued under section 120(1) and 120(2) and not under sub-section (4)(b). The third notification dated August 8 2001, has been issued by the Additional Commissioner of Income-tax, Range-1(3), Mumbai, vesting jurisdic tion upon himself to act as an Assessing Officer. Certainly, this notification is not in conformity with the provisions contained under section 120(4)(b) inasmuch as this notification has been issued under section 120(1) and 120(2) and not under sub-section (4)(b) of section 120. The last notification relied upon by the Department is Notification No. 267 of 2001 dated September 17, 2001. A perusal of the aforesaid notification, a copy of which has been placed in the Departmental paper book shows that this notification has been issued by the Board under section 120(b) directing Joint Commissioner of Income-tax/JDIT to exercise powers and functions of the Assessing Officer. It does not mention Additional Commissioner of Income-tax/Additional Director of Income-tax in any case of the matter at the time of issuance of this notification, Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidly authorise or empower the Additional Commissioner of Income-tax, Range-1(3) to act as an Assessing Officer in the present case. In the case of Mega Corporation Limited v. Addl. CIT [2015] 155 ITD 1019 (Delhi-Trib), the Tribunal while deciding identical issue of exercise of powers and functions of Assessing Officer by Additional Commis sioner of Income-tax dealt with the aforesaid notifications relied upon by the learned Departmental representative and following the deci sion of the hon'ble Delhi High Court in Valvoline Cummins Ltd. v. Dy. CIT [2008] 307 ITR 103 (Delhi) held that without a notification under section 120(4)(b) authorising the Additional Commissioner of Income-tax to exercise the powers and functions of the Assessing Officer, assessment order passed by the Additional Commissioner of Income-tax is without jurisdiction, hence, invalid. Moreover, it was held that once a proceeding has been initiated by an officer having valid jurisdiction, without any order of transfer under section 127 of the Act, the Additional Commissioner of Income-tax cannot be vested with power to function as Assessing Officer. The Tribunal negated the contention of the Department regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order from the Commissioner of Income-tax authorising him to act as Assessing Officer of the assessee. Under these circumstances, it is bounden duty of the Revenue to establish legal competence and authority of the officer passing the assessment order, if so challenged by an assessee at any stage. 3.12. We have examined this issue, it is well accepted position that the Tribunal is a final fact finding body. Requisite documents required for establishing legal authority of the Assessing Officer who had passed the assessment order are expected to be available in the assessment records. Thus, the legal issue raised by the assessee falls in the category of cases which can be decided on the basis of material held on record. 3.13 Further, it is noted by us that the aforesaid grounds are purely legal grounds and do not require any investigation of fresh facts and can be decided on the basis of records held on record. It has been, held by the hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. [1998] 229 ITR 383 (SC) as well as the other judgments as have been relied upon by the learned counsel in its petition that the assessee should be permitted to raise legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on behalf of the Revenue that challenge of jurisdiction must be made within the stipulated time during the course of the assessment proceedings in view of restrictions imposed by the provisions contained in section 124 of the Act the hon'ble Delhi High Court in the aforesaid case held as under : "This is well settled that mere acquiescence in the exercise of powers by a person who does not have jurisdiction to exercise that power cannot work as an estoppel against him." 3.15. It is further noted by us that in the case before us, a challenge has been made about the legal competence of the Addi tional Commissioner of Income tax and his jurisdiction to exercise the powers and perform the functions of the Assessing Officer of the assessee and to carry out the assessment proceedings and frame the assessment order in accordance with the provisions of the Income-tax Act, 1961. Thus, reliance, upon the provisions contained in section 124 of the Act would be of no help to the Revenue as the assessee has not challenged either territorial jurisdiction or irregular exercise of jurisdiction by the Additional Commissioner of Income-tax but chal lenge was made to the authority and leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as per clause (b) of sub-section (4) of section 120. It was vehemently argued that the Additional Commissioner who passed the impugned assessment order was not having any authority issued from the Board or the juris dictional Commissioner of Income-tax to act as an Assessing Officer and to pass an assessment order in the case of the assessee. He also took us through the provisions of section 120 to argue that Additional Commissioner or Joint Commissioner could have exercised the power of an Assessing Officer only if they were so authorised specifically by their jurisdictional Commissioner. In support of his proposition, he relied upon following judgments : 1. Mega Corporation Ltd. v. Addl. CIT [2015] 62 taxmann.com 351 (Delhi-ITAT) 2. Bindal Apparels Ltd. v. Asst. CIT [2006] 104 TTJ 950 (Delhi) 3. City Garden v. ITO [2012] 21 taxmann.com 373 (Jodhpur-ITAT) 4. Microfin Securities (P.) Ltd. v. Addl. CIT [2005] 3 SOT 302 (Lucknow) 5. Prachi Leathers Ltd. (I. T. A. No. 744/Luk/2004 order dated March 29, 2010) 6. Harvinder Singh Jaggi v. Asst. CIT [2016] 67 taxmann.com 109 (Delhi-ITAT) 7. Dr. Nalini Mahajan v. DIT (Inv.) [2002] 257 ITR 123 (Delhi) 8. Ghanshyam K. Khab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon by the counsel wherein it has been inter alia held that if the law mandates a particular act to be done in a particular manner, then that act should be done by the concerned authorities in that manner alone as has been prescribed under the law, else it shall be deemed that the said act has never been done. He requested for quashing the assessment order on the ground that the same was passed without authority of law and was void ab initio. 3.20. We have gone through all the facts and circumstances of the case. It is noted by us that for the impugned assessment year ; after the return was filed by the assessee, a notice was issued by the Assistant Commissioner of Income-tax, Circle-2(3), Mumbai, dated September 5, 2001, intimating the assessee about change in jurisdic tion and claiming that jurisdiction was with the said officer. The relevant part of the said notice is reproduced hereunder : 'Sub : Change in jurisdiction-Intimation-Regarding. In terms of Notification No. S. O. No. 732(E) dated July 31, 2001 of the Central Board of Direct Taxes and consequential notifi cation dated August 7, 2001 of CIT. MC-II, Mumbai, jurisdiction over your case with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Addi tional Commissioner of Income-tax, as required under section 127 of the Income-tax Act. In this regard, the learned Commissioner of Income-tax-Departmental representative was of the view that the Additional Commissioner of Income tax and Assistant Commissioner of Income tax have concurrent jurisdiction over the assessee. In our view, contention of the learned Commissioner of Income-tax-Depart mental representative is not valid as it is not based upon correct appreciation of the law. It appears that the Revenue has misunder stood and miss-applied the very concept of 'concurrent jurisdiction' and has ignored the distinction between the 'concurrent jurisdiction' and 'joint jurisdiction'. When we talk about assignment of 'concurrent jurisdiction' to two officers of different hierarchy, it does not mean that both the officers can simultaneously or jointly work upon the assessment proceedings of the same assessee. But it means that both the officers are legally eligible for assignment of jurisdiction of the assessment proceedings of an assessee and, therefore, any one of these officers can be assigned the jurisdiction by the higher authority. But, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He has held that, "in my considered opinion, since both Additional Commissioner of Income-tax, Range-6 and Deputy Commissioner of Income-tax, Circle-6(1) works as subordinate officer to the same Commissioner of Income-tax and the Commissioner of Income-tax having entire territorial jurisdiction, the passing of assessment order by the Additional Commissioner of Income-tax after issue of notice under section 143(2) by the Deputy Commissioner of Income-tax Circle 6(1) does not affect the taxability of the appellant or the appellant is not adversely affected by the order." The hon'ble Delhi High Court in the above context in the case of Valvoline Cummins Ltd. (supra) has held as under (page 110 of 307 ITR) : "28. On the issue of concurrent jurisdiction between the Additional Commissioner and the Deputy Commissioner, learned counsel for the assessee relied upon a decision of the Calcutta High Court in Berger Paints India Ltd. v. Asst. CIT [2000] 246 ITR 133 (Cal). The Calcutta High Court had explained the meaning of the expression "concurrent" to mean two authorities having equal powers to deal with a situation but the same work cannot be divided between them. This is what the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stay petition filed under section 220(6) of the Act. We are of the opinion that this was not permissible in law." 9.1 We therefore hold that applying the above judicial position that assessment has to be completed by the authority who has initiated the proceedings for making assessment and any other authority can take over the proceedings only after a proper order of transfer under section 127(1) or 127(2) of the proceedings. The Revenue has not brought any order for transfer of the proceedings from Deputy Commissioner of Income-tax, Circle-6(1), New Delhi to the Additional Commissioner of Income-tax, Range-6, New Delhi and therefore it is quite evident that the Additional Commissioner of Income-tax, Range-6 took over the assessment proceedings without there being an order under section 127(1). In the case of Prachi Leath ers Pvt. Ltd. (supra), it has been held as under : "19. We are further of the opinion that the notice under section 143(2) of the Act having been issued by the Income-tax Officer, Range 6(2), Kanpur on August 16, 2002, it was Income-tax Officer alone who could frame the assessment subject however to the fact that that the assessment could be framed by any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(7A) defines the term of Assessing Officer as under : '"Assessing Officer" means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the Joint Commissioner or Joint Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act.' Subsequently, the word 'Additional Commissioner' was also added in the said definition by the Finance Act, 2007, with retro spective effect from day June 1, 1994. Thus, from the above, it is clear that when the impugned assessment order was passed, definition of the word 'Assessing Officer' did not include 'Additional Commis sioner of Income-tax'. It is further noted that section 2(28C) defines Joint Commissioner. Section 2(28C) was available on statute since October 1, 1998 and provide as under : "2(28C) Joint Commissioner means a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue was not able bring before us any order wherein any specific authority was given by any Chief Commissioner or Commissioner authorising the impugned Additional Commissioner to pass impugned assessment order. We find force in the argument of learned counsel that at the relevant time when the assessment proceedings were in progress, the word Additional Commissioner' was not available in the aforesaid section and therefore, it was not possible for the Chief Commissioner or the Commissioner to have authorised an Additional Commissioner for exercising powers and functions of an Assessing Officer for a particular assessee or classes of assessee. Even otherwise, no order could be shown to us, whereby any such authority was given to the Joint Commissioner of the Range. Under these circumstances, we find that the Revenue is not able to show any order or notification in favour of the Additional Commis sioner authorising him for performing the powers and functions of the Assessing Officer of the assessee. 3.27. During the course of hearing, learned Commissioner of Income-tax-Departmental representative had drawn our attention upon Board's Notification No. 267 of 2001 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax who are subordinate to them for-exercising of the powers and performance of the functions of the Assessing Officers. It also, inter alia, authorises the Joint Commis sioners who were so authorised by the Commissioners, to issue orders in writing to the Officers who are subordinate to them for the exercise of the powers and performance of the functions of the Assessing Officers for specified assessee or class of assessee. Relevant part of the said notification is reproduced as under for the sake of ready reference : '. . . (c) authorise the Commissioner of Income-tax referred to in this notification to issue the orders in writing for the exercise of the powers and performance of the functions of the Joint Commissioners of Income-tax, who are subordinate to them, in respect of such cases or classes of cases specified in the corresponding entries in column (6) of the Schedule-I and Schedule-II of such persons or classes of persons specified in the corresponding entries in column (5) of the said Schedules, in such territorial areas specified in the corresponding entries in column (4) of the said Schedules, and in respect all of incomes or classes of income. (d) authorises th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of order of assessment dated December 29, 2008 passed by the Addi tional Commissioner of Income-tax, Range 6, New Delhi. According to the appellant/assessee, it is incumbent under the scheme of statute to vest the Additional Commissioner of Income-tax under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions of the Assessing Officer under the Act. 5.1 To examine the above contention, we consider it inappro priate to firstly extract section 2(7A) of the Act which reads as under : "2(7A) 'Assessing Officer' means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director or Joint Commis sioner or Joint Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act : 5.2 A plain reading of the aforesaid pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply." 5.3 It will be seen that the said provision provides that the Board may by general or special order and subject to such conditions, restrictions or limitations as may be specified therein empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on or as the case may be, assigned to, Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of income or cases or classes of cases shall be exer cised or performed by an Additional Commissioner or an Additional Director or a Joint Commissioner or a Joint Director and where any order is made under this clause, reference in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Additional Commissioner, or Additional Director or Joint Commissioner or a Joint Director by whom, the powers and functions are to be exercised or performed under such order and any provision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax as envisaged in the provisions of section 120(4)(b) of the Act. However, the power given to the Chief Commissioner of Income-tax or Commissioner of Income-tax being in consequence upon the delegation of power duly authorized by the Legislature, the Chief Commissioner of Income-tax or Commissioner of Income-tax were duty bound, if at all they were to exercise such delegated power to act according to the provisions of law ; meaning thereby that it was incumbent upon the Chief Commissioner of Income-tax or the Commissioner of Income-tax, as the case may be, if at all they wanted to authorize the Additional Commissioner of Income-tax to act and perform the functions of an Assessing Officer to pass a proper order delegating such functions/ powers upon him. This view of ours is fully supported by the decision of the hon'ble Delhi High Court in the case of Dr. Nalini Mahajan v. DIT (Invg.) [2002] 257 ITR 123 (Delhi), wherein the hon'ble High Court, while discussing the powers of Additional Director Investiga tion, held as under : "It is now well-settled that when a power is given to do a certain thing in a certain manner, the same must be done in that manner or not at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Appellate Tribunal in the case of Microfin Securities (P.) Ltd. v. Addl. CIT [2005] 94 TTJ 767 wherein it was held that in absence of any allocation being made in favour of the Additional Commissioner to make an assessment, he cannot assume for himself such an authority so as to pass an assessment order. 3.36. Similar view has been taken recently in another judgment by the Delhi Bench of the Income-tax Appellate Tribunal in the case of Harvinder Singh Jaggi v. Asst. CIT [2016] 157 ITD 869 (Delhi). Relevant part of observations of the Bench is reproduced below : '. . . As regard the contention of the assessee that no order under section 127 was passed by the Commissioner of Income-tax, the Revenue has submitted that the Additional Commissioner of Income-tax was provided concurrent jurisdiction over the cases through the order of the Commissioner of Income tax and, therefore, no separate order under section 127 was required to be passed by the Commissioner of Income-tax. However, no such order of the Commissioner of Income-tax conferring the concurrent jurisdiction to the Additional Commissioner of Income-tax over the cases of the Income tax Officer is either availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be obtained by the Assessing Officer from the Joint Commissioner of Income-tax whereas the same was granted by the Commissioner of Income-tax and therefore the same was nullity in the eyes of law. The Revenue took a stand that sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee. But the hon'ble High Court did not agree with the contention of the Revenue and observed that : '. . . The expression "Joint Commissioner" is defined in section 2(28C) to mean a person appointed to be a Joint Commissioner of Income-tax or an Additional Commissioner of Income-tax under section 117(1). Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. The expression has a distinct meaning by virtue of the definition in section 2(28C). The Commissioner of Income-tax not a Joint Commissioner within the meaning of section 2(28C). There is no statutory provision under which power to be exer cised by an officer can be exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to our notice in spite of specific query being raised by the Bench. Therefore, when the issues are to be decided on the basis of facts already available on record and keeping in view the relevant notifications placed on record as well as the decisions cited, there is no necessity of restoring the matter back to the file of the learned Commissioner (Appeals). As far as the contention of the learned Departmental representative regarding maintainability of the additional ground on the plea that the assessee can only challenge the jurisdiction and issue under section 124(3) of the Act, we do not find any merit in such submissions. A plain read ing of section 124 would show that it refers to an order issued under sub-section (1) or (2) of section 120, whereas, we are concerned with an order purported to be passed under section 120(4)(b) empowering the Additional Commissioner of Income-tax to act as an Assessing Officer. Therefore, in our view, the provisions of section 124 are not applicable to the present case. For that reason we do not feel it expe dient to deal with the decisions relied upon by the learned Depart mental representative in that regard. Thus, in view of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai to act as an Assessing Officer in the cases of person or classes of persons as mentioned in the said notification and said order covers to alphabet of the assessee name. Therefore, when the Board has authorized the Principal Commissioner of Income-tax to authorise the Joint Commissioner of Income-tax/Additional Commissioner of Income-tax to act an Assessing Officer and also the Principal Commissioner of Income-tax has passed separate order authorizing the Joint Commissioner of Income-tax to act as an Assessing Officer to discharge the functions and powers of Assessing Officer, then the separate order under section 120(4)(b) of the Act, does not required. We find that the Board has issued a notification under section 120(4)(b) of the Act, vide Notification No. 64 of 2014 dated November 13, 2014 and authorised the Director General of Income-tax/Principal Chief Commissioner of Incometax/Chief Commissioner of Income-tax/Principal Commissioner of Incometax to authorise and empower Joint Commissioner of Income-tax and Assistant Commissioner of Income-tax to act as an Assessing Officer and also to perform functions and powers of the Assessing Officer in respect of persons or classe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the decision of the Incometax Appellate Tribunal Delhi in the case of Mega Corporation Ltd. (supra), but said decision of the Income-tax Appellate Tribunal has been reversed by the hon'ble Delhi High Court and held that once an order is passed under section 120(1) and (2) by virtue of section 2(7A) of the Act, then there is no requirement of separate order under section 120(4)(b) of the Act. We find that the matter before the hon'ble Delhi High Court in the said case was whether the Deputy Commissioner of Income-tax who passed the assessment order was having valid jurisdiction/authority in absence of separate order under section 120(4)(b) of the Act. The hon'ble High Court, in light of the provisions of section 2(7A) of the Act, the definition of the Assessing Officer and order under section 120(1) and (2) of the Act came to the conclusion that the definition of Assessing Officer includes Deputy Commissioner of Income-tax and hence once an order under section 120(1) and (2) of the Act, is on record authorizing the Assessing Officer to act as an Assessing Officer, then there is no requirement of separate order under section 120(4)(b) of the Act. In those facts, the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer. Clause (c) of sub-section (3) of section 124 provides that no person shall be entitled to call in question jurisdiction of an Assessing Officer where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section 153C of the Act or after the completion of the assessment, whichever is ear lier. In clear terms, the time-limit for raising objection to the juris diction of the Assessing Officer prescribed under sub-section (3) of section 124 has a relation to the Assessing Officer's territorial juris diction. The time-limit prescribed would not apply to a case where the assessee contends that the action of the Assessing Officer is with out authority of law and, therefore, wholly without jurisdiction." 18. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that the reassessment order passed by the Joint Commissioner of Income-tax, Range-17, Mumbai is void ab initio and liable to be quashed, because the Assessing Officer who had passed the assessment order does not poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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