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TMI Blog2020 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-11 onwards, the petitioner states that he had shifted to Shimoga, Karnataka, carrying on business there. Hence returns of income were being filed from AY 2012-13 onwards at Shimoga, till date, and intimations under Section 143(1) had also been issued in respect of some of the years. 4. While this is so, the petitioner received, in respect of AY 2008-09, a notice under Section 148 dated 30.03.2015. Though initially a dispute was raised by the petitioner in regard to the date of dispatch and service of the aforesaid notice, pursuant to the records being summoned and perused, which contained an acknowledgment of receipt of the notice by the petitioner on 04.04.2015, the dispute raised with regard to date of dispatch and service thereof were not pursued and have been given up by Mr.Sivaraman, learned counsel for the petitioner and no further arguments raised in that regard. 5. The petitioner replied to the notice on 18.05.2015 requesting three months' time to collect the details needed to file a return as called for. By letter dated 09.10.2015, the respondent/Deputy Commissioner of Income Tax, International Taxation, Madurai called for the total numbers of days when the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2015 enclosing the particulars sought for. 7. On 10.12.2015, the respondent writes to the petitioner stating that since the total number of days when the petitioner had been resident in India had been five months, he was a non-resident for the purposes of assessment under the Act. She goes on to state that since the PAN address of the petitioner is in Madurai, he would be assessed to tax by the Deputy Commissioner of International Taxation, Madurai. Hence, the petitioner was required to file a return of income for the years in question before the respondent Assessing Officer. This communication marks a departure in the stand of the officer as her initial stance was that the assessment would be completed only by the officials at Karnataka where the petitioner is consistently being assessed. 8.Vide communication dated 17.12.2016, the petitioner set forth his objections to the proposals for assessment, stating that though he was resident in Madurai at the time when he sought allotment of PAN number, his business interests were located at Shimoga and thus he had been a regular assessee at Shimoga only. He referred to the provisions of Section 124 of the Act, according to which, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment reiterating the assumption of jurisdiction by her as well as dealing with the assessment on merits, as against which the petitioner is before this Court. 12.The assumption of jurisdiction by an assessing authority is determined by the provisions of Section 120 of the Act that deals with the jurisdiction of income tax authorities and states that the authorities shall exercise all or any of the functions and powers conferred on them for this purpose by the Board or by those officers/authorities to whom such power has been delegated by the Board. Section 120 reads thus: 120. Jurisdiction of income- tax authorities (1) Income- tax authorities shall exercise all or any of the powers and perform all or any of the functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. (2) The directions of the Board under sub- section (1) may authorise any other income- tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferences to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. (6) Notwithstanding anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette,, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person or class of persons, the income- tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification. 13. The scope and extent of the exercise of such jurisdiction by an assessing authority, once vested, is set out in terms of Section 124 of the Act, extracted below: 'Jurisdiction of Assessing Officers: 124. (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 business or professio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under sub-section (1) of section 153A or sub-section (2) of section 153C or after the completion of the assessment, whichever is earlier. (4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under section 120, every Assessing Officer shall have all the powers conferred by or under this Act on 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.' 14.If at all the senior Officers of the Department of the rank of the Principal Director General/Director General or Principal Chief Commissioner/Chief Commissioner or Principal Commissioner/Commissioner were of the view that that a change in jurisdiction was called for by transfer of file from one asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place. (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. Explanation.-In section 120 and this section, the word "case", in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year.' 15.On a combined reading of Sections 120, 124 and 127 the following positions emerge (i) jurisdiction vests in an officer in terms of Section 120 of the Act (ii)Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, after recording reasons for such transfer and after hearing the assessee concerned. In this case, no order transferring the file of the petitioner from the jurisdiction of the Income Tax Officer, Shimoga to the Deputy Commissioner of Income Tax, International Taxation, Madurai, has been produced before me. 19. Instead, the learned Standing Counsel produces a Notification in F.No. Addl CIT, Rg,CBE/IT/CBE/1/2014-15, dated 15.11.2014, reading as follows: 'GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT Office of the Additional Commissioner of Income-tax (International Taxation), Coimbatore. F.No. Addl CIT, Rg,CBE/IT/CBE/1/2014-15 Dated 15.11.2014 NOTIFICATION NO.1/Additional CIT (INTL.TAXN.) Coimbatore/2014-15 In exercise of the powers conferred by the Central Board of Direct Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 201 of the Income Tax Act, 1961 in respect of such persons mentioned in (b) All functions and powers of Assessing officer under the Income tax Act 1961 relating to Tax Deduction at Source under section 194E, 195, 196A, 196B, 196C, 196D, 197 and 201 of the Income Tax Act, 1961, on payments made to nonresidents and foreign companies in respect of persons mentioned in items (b) to (e) of This notification shall come to effect from 15th November 2014. S.RAVICHANDRAN Additional Commissioner of Income tax International Taxation Coimbatore. Thus according to the respondent, jurisdiction has been validly assumed by her. 21. She also relies on the decision of the Allahabad High Court in CR Foods (India) (P.) Ltd. v. Income-tax Officer-4(1), Agra, specifically paragraph Nos.25 and 26 extracted below: '25.Sub-section (5) of Section 124 provides that, notwithstanding anything contained in the Section or in any direction or order issued under Section 120 every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of income accruing or arising or received within the area, if any over which he has been vested with the jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while considering the provisions of Section 120, 124 and 127 recognised the flexibility and choice available with both the officials of the department as well as by the assessee in the matter of initiation and finalization of assessment proceedings. At paragraph 13, the Bench in SS.Ahluwalia (supra) states as follows: "(13)The provisions indicate that Sections120, 124 and 127 of the Act recognizes flexibility and choice, both with the assessee and the authorities i.e. the Assessing Office before whom return of income could be filed and assessment could be made. The Assessing Officer within whose area an assessee was carrying on business, resided or otherwise income had accrued or arisen ( in the last case, subject to the limitation noticed above) has jurisdiction. Similarly, the Assessing Officer also has authority due to class of income or nature and type of business. The Act, therefore, recognized multiple or concurrent jurisdictions. Provisions of Section124 ensure and prevent two assessments by different assessing officers, having or enforcing concurrent jurisdiction. There cannot be and the Act does not envisage two assessments for the same year by different officers. (Reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r portion of an income [see Kanjimal & Sons Vs. Commissioner of Income Tax, New Delhi, (1982) 138 ITR 391 (Del)]. Thus, it is necessary that the Assessing Officers having concurrent jurisdiction ensure that only one of them proceeds and adjudicate. This is the purport and objective behind sub-section (2) to Section 124 of the Act. 26. The Delhi High Court has concluded that the objections raised by Abishek Jain cannot be equated with lack of subject matter of jurisdiction and relates only to place of assessment. They thus reject the challenge to the assumption of jurisdiction on the ground that the principle of concurrent jurisdiction would save the initiation of proceeding by officer at Noida. 27. The material facts in Abishek Jains' case and the matter before me are that the petitioner in that case was seen not to have raised any effective or timely objection to the assumption of jurisdiction by the assessing officer at Noida. Moreover, the petitioner therein appears to have been harping only on the violation of the principles of natural justice. In any event and very relevantly, there was no request by the petitioner for a specific determination in terms of Section 124 (4) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-assessment proceedings on the ground that the notice had been sent to her old address and was thus invalid particularly, when she had specifically disclosed the change of address to the Department. The challenge was accepted by the Court holding in conclusion that the narrative of facts and behavior of the Assessing Officer was disturbing, to say the least. The proceedings had been initiated by the Officer mechanically and on the basis of the address supplied by the Bank without noting that the address supplied by the Bank was incorrect and without verifying the correct address and all other details including E-mail ID that were available in the database of the Income Tax Department. The proceedings for re-assessment were quashed. 33. In Prashant Chandra (supra) the Allahabad High Court considered the case of an assessee who had filed returns of income at Lucknow till AY 2011-2012. From AY 2012-2013 the petitioner filed returns in New Delhi since he has shifted his principal place of business there. On receipt of the notices from the Assessing Officer at Lucknow, the assessee tendered a reply bringing to the notice of the authority that he had shifted his principal place of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer would be to assume jurisdiction, is obvious and glaring. 37. The petitioner in rejoinder to the counter has set out the periods of his entry and exit into and out of India, as follows: 1. 01.01.2015 to 12.01.2015-Los Angeles (US)-12 days - 01.01.2015 exit from Dubai and entered US 2. 12.01.2015 to 22.01.2015 - Dubai - 10 days - 12.01.2015 exit from US and entered Dubai 3. 22.01.2015 to 08.02.2015 - Mozambique - 17 days - 22.01.2015 exit Dubai and entered Mozambique 4. 08.02.2015 to 15.02.2015 - Dubai - 7 days - 08.02.2015 exit Mozambique and entered Dubai 5. 15.02.2015 to 27.02.2015 - India - 12 days - 15.02.2015 exit from Dubai and entered India 6. 27.02.2015 to 11.03.2015 - Dubai - 12 days - 27.02.2015 exit from India and entered Dubai 7. 11.03.2015 to 26.04.2015 - Mozambique - 46 days - 11.03.2015 exit from Dubai and entered Mozambique 8. 26.04.2015 to 01.05.2015 - Dubai - 5 days - 26.04.2015 exit Mozambique and entered Dubai 9. 01.05.2015 to 11.05.2015 - India - 10 days - 01.05.2015 exit Dubai and entered India 10. 11.05.2015 to 02.06.015 - Dubai - 22 days - 11.05.2015 exit India and entered Dubai 11. 02.06.2015 o 14.06.2015 - Mozambiqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madurai, wherein the address of the assessee is stated to be in Madurai. However, no assessments have been completed by the officials at Madurai, till date. For AY 2012-2013 to 2015-2016 the petitioner has filed returns of income electronically, stipulating his jurisdictional officer as the Income tax officer, Shimoga, Karnataka. These returns of income have been processed and intimations issued by the CPC wherein the address of the petitioner is stated to be Shimoga. 43.The appropriate officer to assess the petitioner is thus the officer at Shimoga. No doubt, the provisions of Section 124(5) provide for the vesting of jurisdiction concurrently upon two officers if the situation and circumstances so warrant the same, such as if the assessee in question has business interests or assets as well as income arising there from spread over various parts of the country, Concurrent jurisdiction is, no doubt, a principle enshrined as part of the procedure for finalizing assessments, the thumb rule being that the same income not be assessed twice. However, if at all such jurisdiction were to vest concurrently by way of transfer to the respondent officer as well, it was incumbent upon the off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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