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TMI Blog2020 (1) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... rought to our notice in spite of specific query bang 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 o 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 issue under section 124(3) of the Act, we do not find any merit in such submissions. A plain reading of section 124 would show that it refers to an order issued under subsection (1) or (2) of section 120, whereas, we are concerned with an order purported to be passed under section 120(4)(b) empowering the Add). CIT 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 expedient to deal with the decisions relied upon by the 'earned Departmental Representative in that regard. Thus, in view of the aforesaid the additional ground and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outset, we find that the assessee had raised the following additional grounds vide its petition for admission of additional grounds dated 25/07/2017 which go to the root of the matter as the validity of framing of assessment by the ld. Additional Commissioner of Income Tax is questioned:- 1. On the facts and in the circumstances of the case, the assessment order dated 31.03.2008 passed by the Additional Commissioner of Income Tax under section 143(3) is bad in law, illegal and without jurisdiction and / or in excess of jurisdiction, on the grounds amongst others that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the assessment order and consequently the Hon'ble Tribunal be pleased to quash the said order. 2. The Additional Commissioner of Income Tax lacked jurisdiction to pass the Order of Assessment u/s 143(3) dated 31.03.2008 and to exercise the powers of performing the functions of an Assessing Officer without establishing that he possesses such jurisdiction conferred on him under section 120(4)(b) of the Act. Accordingly, in the absence of an Order u/s. 120(4)(b) conferring jurisdiction on the Additional Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income tax / Jt. Director of Income-tax, who had been empowered by said Notification to exercise the powers and functions of the Assessing Officer is erroneous since under section 2(28C) of the Income-tax Act, 1961 of the term Jt.Commissioner of Income-tax includes an Addl. Commissioner of Income-tax and this definition has been inserted by the Finance (No.2) Act, 1998 w.e.f. 01/10/1998 . Also the Delhi High Court in case of Mega Corporation on 23/02/2017 vide ITA No.128 of 2016 has overturned the decision of ITAT Delhi in (ITA No.l02/Del/2014). (iv) On the facts and circumstances of the case sand in law, the proceedings initiated by notice u/s 143(2) issued by the Dy. Commissioner of Income Tax 1(3), Mumbai and Income Tax are valid as there was concurrent jurisdiction. (v) On the facts and circumstances of the case and in law, the additional grounds should not be admitted that as they were never raised by the assessee before any of the lower authorities. (vi) On the facts and circumstances of the case and in law, the additional grounds raised by the assessee is against the legal principle enunciated by the Supreme Court in the case of M/s NTPC Ltd. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31/10/2005 for A.Y.2005-06 wherein, in the stamp given by the Income Tax department, it is mentioned as DCIT Range 1(3), Mumbai. c. Page No.3 of the paper book contains intimation u/s.143(1) of the Act in March 2006 given by JCIT Circle 1(3), Mumbai d. Page No.4 of the paper book contains order passed by the JCIT (OSD) Range 1(3), Mumbai u/s.154 of the Act for A.Y.2005-06 dated 25/04/2006 e. Page No.5 of the paper book contains revised return of income filed by the assessee on 29/03/2007 for A.Y.2005-06 wherein the Income Tax department has given stamp of DCIT, Range 1(3), Mumbai f. Page No.6 of the paper book contains notice u/s.143(2) of the Act dated 16/08/2007 issued by the Additional CIT, Range 1(3), Mumbai to the assessee g. Pages 7-11 of the paper book contain notice u/s.142(1) of the Act dated 06/08/2007 together with the detailed questionnaire issued by the Additional CIT, Range 1 (3), Mumbai to the assessee calling for various details. h. Pages 12-15 of the paper book contain letter issued by the Additional CIT, Range 1(3), Mumbai dated 31/10/2007 calling for further details for A.Y.2005-06. i. Assessment was finally completed u/s.143(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Sr. Counsel for the assessee, we are inclined to admit the additional / supplementary grounds raised by the assessee and will proceed to adjudicate the same at the very outset. Respectfully following the same, the objections of the revenue for admission of additional grounds raised by the assessee are rejected and additional grounds of the assessee are admitted for adjudication as it challenges the preliminary issue of validity of framing of assessment by the learned Additional Commissioner of Income Tax. 4. The brief facts are the assessee earlier known as Videsh Sanchar Nigam Ltd , is engaged in the business of providing telecommunication services. For the Asst Year 2003-04, the assessment was completed u/s 143(3) of the Act on 14.2.2006 by the Learned Additional Commissioner of Income Tax, Range -1(3), Mumbai. In the course of assessment proceedings, the ld AO after examining the books of accounts and other materials on record made number of additions / disallowances which were challenged by the assessee before the ld CITA. The ld CITA disposed off the assessee s appeal by the impugned order granting partial relief to the assessee. Still aggrieved by the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(3) to exercise / perform the functions of the Assessing Officer. He submitted, in exercise of power vested with him, the DCIT, Circle 1(3) had issued notice u/s 143(2) of the Act on 9.12.2004 for the year under consideration. The ld AR submitted that without any order being passed u/s 127 of the Act transferring the jurisdiction from DCIT, Circle-1(3) , the Addl CIT assumed jurisdiction unilaterally and issued notices u/s 142(1) and 143(2) of the Act on 14.9.2005 and ultimately completed the assessment u/s 143(3) of the Act on 14.2.2006. The ld AR submitted that in the absence of any order u/s 127 of the Act transferring the jurisdiction of the assessee from the DCIT, Circle -1(3) to Addl CIT , Circle -1(3) and further, there being no notification issued by the Board u/s 120(4)(b) of the Act, empowering the authorities to appoint the Addl CIT , Range-1(3), Mumbai, to act as an Assessing Officer, the assessment order passed is without jurisdiction, hence, has to be quashed as null and void. 5.1. The ld AR further submitted , even , after completion of impugned assessment on 14.2.2006, the DCIT, Circle-1(3), Mumbai, vide letter dated 23.9.2005, has clarified that he is still i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on no.267 dated 17th September 2001, issued under section 120(4)(b) of the Act has conferred power upon the Addl. CIT to act as an Assessing Officer . In this context, the ld. DR drew our attention to the Board notification dated 17th January 2009. Further, relying upon the notification dated 1st August 2001, vide letter no.MIC/HQ 1/Jurisdiction/2001 02 submitted, the CIT in exercise of power conferred by the Board under section 120(1) and 120(2) of the Act vide notification no.732(E) dated 31st July 2001, has directed the Addl. / Jt. CIT to exercise powers and perform functions of the Assessing Officer in respect of certain classes of person of a certain territorial area. He submitted, under the said notification, the Addl. / Jt. CIT, Range 1(3), was empowered to act as an Assessing Officer . He also referred to notification dated 8th August 2001, issued by the Addl. CIT Range 1(3), assuming jurisdiction of the Assessing Officer. Thus, referring to the aforesaid notifications, the ld. DR submitted that the Addl. CIT has validly exercised power of Assessing Officer in initiating and completing the assessment proceedings in respect of the assessee. The ld. DR submitted, in any cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. DR submitted, in case of Mega Corporation Ltd. (supra) relied upon by the Tribunal in the case of Tata Sons Ltd. (supra), the Tribunal came to a conclusion without taking cognizance of the retrospective amendment made to section 2(7A) of the Act. The ld. DR submitted, in case of Mega Corporation Ltd. (supra), when the jurisdiction issue was raised for the first time before the Tribunal, the matter was set aside to the ld. CIT(A) to pass a speaking order referring to all relevant material for adjudication on jurisdiction. He submitted, the same process can be followed in case of the present assessee. In similar manner, he also distinguished the other decisions relied upon by the assessee. Finally, the ld DR submitted, the assessee has raised the jurisdiction issue at this stage knowing fully well that most of the issues raised on merit have been decided by the Tribunal against the assessee. He further submitted, the assessee having subjected itself to the jurisdiction of the Addl. CIT, it has lost its right to appeal against the exercise of jurisdiction. Thus, he submitted, the ground raised should be dismissed. 5.5. In the rejoinder, the ld. AR submitted, none of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the rival submissions which were done in an elaborate manner by both the parties before us. We have also applied our mind to the decisions cited by both the parties. The short point that arises for our consideration in this preliminary ground is whether the Addl. CIT, Range -1(3), Mumbai had the competence and jurisdiction to pass the assessment order in the case of the assessee. We find that this issue had been dealt at length by the co-ordinate bench of this tribunal in assessee s own case for the Asst Year 2002-03 in ITA Nos. 6981 7071 /Mum/2005 ; CO No. 40/Mum/2017 ; ITA Nos. 1108 1836 /Mum/2008 dated 30.6.2017 wherein it was held as under:- 13. We have carefully and patiently considered elaborate submissions made by bath the parties orally as well as in writing. We have also applied our mind to the decisions cited at the Bar. Specific issue raised before us which merits consideration is, whether the Addl CIT, Range-1(3), had the competence and jurisdiction to pass the assessment order in case of the assessee. As far as the relevant facts are concerned, there is no dispute that the assessee was under the assessment jurisdiction of Dy. CIT-1(3). In fact, the DCIT, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other provision of the Act. The second limb of the provision says, the KIT or JDIT if directed under clause (b) of sub-section (4) of section 120, can perform powers and functions of an Assessing Officer. It is relevant to observe, the provisions of section 2(7A) underwent a change by virtue of amendment brought by Finance Act, 2007. As per the said amendment in the second limb of section 2(74) along with the JCIT and JDIT, Addl. CIT /Addl. DIT were also to be treated as an Assessing Officer if they were directed to act as an Assessing Officer in terms of section. 120(4)(b). This amendment brought to section 2(7A) was with retrospective effect from 1st June 1994. Corresponding to the amendment made to section 2(7A), the Finance Act, 2007, amended the provisions of section 120(4)(b), providing that the Board in writing can empower the CCIT/CIT to issue orders directing an Addl. CIT/ADIT to act as an Assessing Officer in respect of any specified area or persons or classes of persons or classes of income or cases of classes of cases which earlier would only be vested with JCIT or JDIT. This amendment to section 120(4)(b) brought by Finance Act, 2007 was also with retrospective effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der clause (b) of sub-section (4) of section 120. Thus, vesting of power of Assessing Officer on different income tax authorities have been specifically demarcated under section 120 of the Act. A conjoint reading of Section 2(7A) an Section 120 would make it clear, as far as ACIT, ADIT, DCIT, ADIT; DDIT and ITO are concerned, they have to be vested with the power of Assessing Officer under section 120(1) or (2), whereas, AddI. CIT, Addl. DIT, KIT, MIT can be vested with the power of Assessing Officer under Section 120(4)(b). In a notification issued under section 120(1) and 120(2), Addl. CIT cannot be vested with power to act as an Assessing Officer. Therefore, notification no.228 of 2001 dated 31 July 2001, cannot be said to be vesting power of Assessing Officer with the Addl. CIT. Similar is the situation with notification doted 1st August 2001, issued by the CIT, 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 8th August 2001, has been issued by the Addl. CIT, Range-.1(3), Mumbai, vesting jurisdiction upon himself to act as an Assessing Officer. Certainly, this notification is not in conformit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e JCIT and JDIT to exercise the powers and function of the Assessing Officer and it is not in respect of Addl. CIT or Addl. DIT. Thus, none of these notifications can validly authorize or empower the Addl. CIT, Range-1(3) to act as an Assessing Officer in the present case. In case of Mega Corporation Ltd. vs. ACIT, [2015] 155 ITD 1019, the Tribunal while deciding identical issue of exercise of powers and functions of Assessing Officer by Addl. CIT dealt with the aforesaid notifications relied upon by the learned Departmental Representative and following the decision of the Hon'ble Delhi High Court in Valvoline Cummins v/s DCIT, [2008] 307 FUR 103 (Del) held that without a notification under section 120(4)(b) authorizing the Addl. CIT to exercise the powers and functions of the Assessing Officer, assessment order passed by the Addl. CIT 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 Addl CIT cannot be vested with power to function as Assessing Officer. The Tribunal negated the contention of the Department regarding exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing 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 Corporation 229 ITR 383 as well as ' the other judgments as have been relied Upon by the Ld. Counsel in its petition that assessee should be permitted to raise legal grounds at any stage, if they go to the root of the matter. 3.14. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions contained in section 124 of the Act 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 Additional 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 challenge was made to the authority and legal competence itself of the Additional Commissioner of Income tax to pass the impugned assessment order upon the assessee. Similar view has been taken by the Delhi Bench of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in the case of the assessee. He also took us through 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 authorized specifically by their jurisdictional Commissioner. In support of his proposition, he relied upon following judgments: 1. Mega Corporation v: Add!; CIT (62 taxmann.com 351 (Del. ITAT) 2. Bindal Apparels Ltd. ACIT 104 TTJ 950(Del) 3. City Garden vs. ITO (21 taxmann.com 373 (Jodhpur ITAT) 4. Micro fin Securities (P) Ltd. vs Add!. CIT i SOT 302 (Luk.) 5. Prachi Leathers Ltd. 26L/Luk/201 0 in ITA No. 744/Luk/2004 order date. 29.03.2010 6. 1-farvinder Singh Jaggi vs. ACIT 67 Taxmann.com 109(DeL ITAT) 7. Dr. Nalini Mahafan vs. OfT (Inv.) 257 ITR 123(Del. HC) 8. Ghansh yam K. Khabrani vs. ACIT 346 IT!? 443(Bom. HC) 9. CIT vs. SPL's Siddhartha Ltd. 345 ITR 223 (Del. HC) 3.18. Per contra, Ld. CIT-DR, with the assistance of Ld. AO, vehemently opposed the submissions of the Ld. Senior Counsel and argued that all the Additional Commissioners have concurrent jurisdiction upon all the assesses falling in their respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is noted by us that for the impugned assessment year; after the return was filed by the assessee, a notice was issued by the ACIT Cir-2(3), Mumbai, dated 5th September, intimating the assessee about change in jurisdiction and Claiming that jurisdictional 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. SO No. 732(E) dated 31.7.2001 of Central Board of Direct Taxes and consequential Notification dated 7.8.2001 of CIT. MC-11, Mumbai, jurisdiction over your case with effect from 1.8.2001 vests with the undersigned. All IT./W.T. and Interest tax Returns and necessary correspondence on that account are therefore required to be filed with the undersigned. All payments towards Income-tax (by way of Advance tax, Regular tax or S.A. tax), Interest tax, Wealth tax and payment u/s. 115-0 of the I.T. Act are also to be made w.e.f. 1.8.2001 to the credit of the ACIT Circle 7(3). Mumbai 2. Similarly, jurisdiction over the Managing Director, Director, Manager; and Secretary of your company also vests with the undersigned vide Notifications quoted supra. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings of an assessee and, therefore, any one of these officers can be assigned the jurisdiction by the higher authority. But, exercise of the jurisdiction between both the officers shall always be mutually exclusive to each other. If the jurisdiction has been assigned to one of the officers, it shall not be exercised by the other, and lithe jurisdiction is taken away from the former officer and assigned to the latter, then it shall be exercised by the latter only and. hot by the former. Thus, the jurisdiction can be exercised by only one Assessing Officer at any given point of time who has been duly assigned the jurisdiction by. the competent authority. The assignment of jurisdiction to an officer and its transfer from one officer to the other can be made only through the prescribed process of law. Section 127 of the Act contains provisions regarding process to be followed by the Revenue Officers and their powers for transfer of cases from one Assessing Officer to the other. Section 127(1)inter-alia provides and mandates that the Commissioner may after recording his reasons for doing so, transfer any -case from one Assessing Officer subordinate to him to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concurrent jurisdiction when one part of the assessment will be dealt with by one superior officer and the other part will be dealt with by one subordinate officer. ... ............It appears to us quite clearly that there is a distinction between concurrent exercise of power and joint exercise of power. When power has been conferred upon two authorities concurrently, either one of them can exercise that power and once a decision is taken to exercise the power by any one of those authorities, that exercise must be terminated by that authority only. It is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible in a situation where both the authorities jointly exercise power but it certainly is not permissible where both the authorities concurrently exercise power. One example that immediately comes to the mind is that of grant of anticipatory bail. Both the Sessions Judge and the High Court have concurrent power. It is not as if a part of that power can be exercised by the High Court and the balance power can be exercised by the Sessions Judge. If the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the assessee's case from the income-tax Officer, Range 6(2), Kanpur to .the Addl. CIT, Range-6,Kanpur and therefore, the assessment framed by the Addl CIT, Range-,Kanpur irrespective of the fact as to whether he was authorized to perform the functions of an AO or not, is illegal and void ab intio for want of jurisdiction. Consequently, we are of the opinion that the assessment order in the present case dated 31.3.2003 passed by the Addl. CIT, Range (6), Kanpur was illegal and void ab initio for want of jurisdiction. Consequently, the assessment order is quashed. 9.2 Consequently on this count also, the assessment made on 29.12.2008 by the Additional Commissioner is illegal and bad in law for want of jurisdiction. 10. For the reasons aforesaid we hold that the order of assessment dated 29.12.2008 was without jurisdiction and therefore is quashed as such. In result, ground Nos. 1 and 2 are allowed. 3.23. In the case before us, the facts are 'identical. it is noted that Ld. CIT-op as well as the Assessing Officer (present incumbent) who was personally present during the course of hearing before us, jointly stated that no such order (as prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' and 'Joint Commissioner' differently for the purposes of performing the role as an Assessing Officer, despite the fact that for all the other purposes 'Joint Commissioner' meant Additional Commissioner as well., as per section 2(25C). It is clear from the facts that by way of subsequent amendment by Finance Ad, 2007, words 'Additional Commissioner' have also been inserted along with words 'Joint commissioner', in section 2(7A) which defines the term for 'Assessment Officer' In case, the legislature would have intended and meant that for the purpose of acting as Assessing Officer, 'Joint Commissioner' and 'Additional Commissioner' means one and the same, then there was no need to come out with an amendment made by Finance Act, 2007, wherein the word 'Additional Commissioner' was also inserted in the definition of 'Assessing Officer' as contained in section 2(7A). Thus, it is clear as per the plain reading of the statute that when the assessment order was passed, the 'Additional Commissioner was not authorized to act as Assessing Officer. 36. In addition to the above, it further noted by us that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.335 is issued merely for assigning jurisdiction to various Commissioners and it is thus of no use to Revenue as far as issue before us is concerned. So for as Notification No.267/2001 is concerned, it reads as follows:- In exercise of the powers conferred by clause(b) of sub-section (4) of section 120 of the income -tax Act,1'9'61(43 of 1961), the Central Board of Direct Taxes, hereby directs that the Joint Commissioners of Income Tax or the Joint Directors of Income tax, shall exercise the. powers and functions of the Assessing Officers, in respect of territorial area or persons or classes of persons or incomes or classes of income or cases, or classes of cases, in respect of which such Joint Commissioners of Income tax are authorised by the Commissioner of Income tax, vide Government of India, Central Board of Direct. Taxes notification number S.O.732(E) dared 31.072001, S.O.880(E) dated 14.09.2001 S.0.881(E) dated 14.09.2001, S.O.882(E) 14.09.2001 and S.0. 883(E) dated 14.09.2001 published in the Gazette of India, Part II, Section 3, sub-section (ii), Extraordinary: (emphasis supplied) 3.29. Perusal of the aforesaid notification reveals that only those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized by the jurisdictional Commissioner to do so. It is noted that any such order would not be available with the Revenue, because even in the notifications discussed above only 'Joint Commissioners' were authorized to perform the role of the Assessing Officers. However, the Revenue is not able to bring before us any order of the Commissioner authorizing even the 1 Joint Commissioner' to perform powers and' functions ' of Assessing Officer of the assessee. As per the discussion made by us in 'detail in the earlier part of our order, it is dear that no such order is available in the assessment record or in any other record. Legal consequences of the same have been elaborately analysed m many judgments by various courts. 3.32. Identical issue came up for consideration before Delhi Bench of Income Tax Appellate Tribunal in the case of Mega Corporation, supra. The bench discussed entire law available on this issue and held that an 'Additional Commissioner of Income Tax' cannot ipso facto exercise the powers or perform the function of an Assessing Officer under the Act. He can perform the functions and exercise the powers of an Assessing Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on or assigned to an Assessing Officer under the Act. under the Act In other. Words, an Additional Commissioner can only be directed u/s 120(4)(b) of the Act to Assistant Commissioner or Deputy Commissioner or Assistant Director or deputy Director or Income Tax Officer under the Act. This interpretation also 'derives strength from the provisions contained in section 120(4)(b) of the Act which reads as under: 120.Jurisdiction of income-tax authorities (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,- (b) 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, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of p rsohs or incomes or classes of income or cases or classes of cases, shall be exercised or performed by an Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he of Mega Corporations Ltd, supra and relevant portion of the order as discussed therein is reproduced below: - 16.2 From the contents of. the aforesaid provisions, it isq uite clear that so far as Addl. Commissioner is concerned firstly he has been included in the definition of Assessing Officer given under section 2(7A) of the Act with effect from 1.6.1994 as a result of retrospective amendment made by the Finance Act, 2007 but at the same time, it/s also clear that the Add/. Commissioner will be Assessing Officer as envisaged in section 2(7A) so amended only if he is directed under clause (b)of cub-section (4) of section 120 to exercise or perform all or any of the powers and functions concerned on or assigned to an Assessing Officer; meaning thereby that the Addl. CIT can function or can exercise the powers and perform the functions of an Assessing Officer if he is empowered by the CBDT as required under clause (b) of sub-section (4) of section 120. 18.1 So far as the issue before us in the present appeal is concerned, it is now clear from the provisions as discussed hereinbefore that the Additional CIT could act and exercise the powers of an AO only in consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fully applicable to the present 18.3. In view of the aforesaid facts, circumstances and the discussion and following the law laid down by the Hon'ble De/hi High Court in the case of Dr. Na/ii Mahajan (supra), first of all we are of the opinion that the Addl. CIT, Range-6, Kanpur having not been empowered to exercise or perform the powers or functions of an Assessing Officer, the assessment framed by him was illegal and void ab initio. ..... 3.34. It is further noted that similar view has been expressed by Jodhpur Bench of ETA in the case City Garden Vs. ITO 21 taxman.com 373 (Jodhpur) wherein it has been held that in the absence of a specific order issued in pursuance to Section 120(4)(b) specifically authorizing Joint Commissioner of Income Tax to exercise the powers and perform the function as conferred on or assigned to an Assessing Officer by or under the Act or a notification under section 120 of the Act, he is not competent to act as an Assessing Officer and pass an assessment order. 3.35. Similar view has been taken by Lucknow Bench of ITAT in case of Micro fin Security Pvt. Ltd vs. Additional CIT 94 TTJ 767 wherein it was held that in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l conditions required to be fulfilled by the assessing officer must be performed strictly in the manner as have been as prescribed and if it has not been done in the manner under the law. then it becomes nullity in the eyes Hon'ble Supreme Court in the case of CIT Vs. M. H. Ghaswala observed that it is a normal rule of construction that when a statue vests certain powers in an authority to be exercised in a particular manner, then that authority is bound to exercise it only in the manner provided in the statue only. 3.39 Hon ble Bombay High court dealt with a similar situation in the case of Ghansham K.Khabrani Vs. ACIT 346 ITR 443 wherein the said assessee raised an issue that requisite sanction prescribed u/s 151 for reopening of an assessment was required to be obtained by the AO from Joint Commissioner of Income tax whereas the same was granted by Commissioner* of Income tax and therefore the same was nullity in the eyes of law. Revenue took a stand mat sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee But Hon'bl High. Court did not agree with the contention of the Revenue and observed that:- .... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating the jurisdictional issue. We do not find any valid reason to accept the contention of the learned Departmental Representative. As stated earlier by us, exercise of jurisdiction by the Addl. CIT has to be examined on the basis of notification / orders passed under section 120(4)(b), inasmuch as, n 127(1) of the Act. In this context, learned Departmental representative has relied upon certain notifications to justify the validity of the assessment order passed by the Addl. CIT. As far as existence of any order under section 127(1) is concerned, the learned Dlearned Departmental Representative has fairly submitted that no such order exist on record. At least, nothing was brought to our notice in spite of specific query bang 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 o 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and in the circumstances of the case, the draft assessment order dated 31.12.2009 and the final assessment order dated 22.10,2010 passed by the Additional Commissioner of Income Tax under section 143(3) r.w.s. 144C are bad in law, illegal and without jurisdiction and / or in excess of jurisdiction, on the grounds amongst others that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the assessment orders and consequently the Hon'ble Tribunal be pleased to quash the said orders. 2. The Additional Commissioner of Income Tax lacked jurisdiction to pass the draft assessment order dated 31.12.2009 and the final assessment order dated 22.10.2010, under section 143(3) r.w.s. 144C and to exercise the powers of performing the functions of an Assessing Officer without establishing that he possesses such jurisdiction conferred on him under section 120(4)(b) of the Act. Accordingly, in the absence of an Order u/s, 120(4)(b) conferring jurisdiction on the Additional Commissioner of Income Tax, the said assessment orders passed by him need to be quashed. 3. The proceedings having been initiated by issue of a Notice u/s. 143(2) on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. DR vehemently objected to the admission of additional grounds raised by the assessee and supported the cross objections preferred by the revenue. The ld. DR vehemently argued opposing the admission of additional grounds and submit that prior to the Tribunal, at no stage, the assessee had raised the issue relating to the Additional CIT s jurisdiction or lack of it, as per notifications issued u/s.120 of the Act. Accordingly, he argued that the additional ground should not be admitted. 9.3. Per contra, the ld. AR submitted that the additional grounds raised by the assessee are purely legal and jurisdictional issues and can be decided on the basis of facts available on record and there is no requirement to investigate into new facts in the light of the decisions of Hon ble Supreme Court in the case of Jute Corporation of India Ltd. vs. CIT reported in 187 ITR 688; Hon ble Supreme Court in the case of CIT vs. NTPC Ltd. reported in 229 ITR 383 (SC) and Hon ble Jurisdictional High Court in the case of CIT vs. Pruthvi Brokers and Shareholders reported in 349 ITR 336 (Bom), among others. 9.4. We also find that the additional grounds raised by the assessee on 17/12/2015 also deser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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