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TMI Blog2020 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. It is non-existent in the eye of law. And hence a nullity. The assessment order under appeal is therefore no order in the eye of law, hence we quash the assessment order. - Decided in favour of assessee. - ITA No.400/Kol/2018 - - - Dated:- 5-2-2020 - Shri S. S. Godara, JM And Dr. A.L. Saini, AM For the Appellant : Shri S.M. Surana, Advocate For the Respondent : Shri Radhey Shyam, CIT ORDER PER DR. A. L. SAINI, AM: The captioned appeal filed by the assessee, pertaining to Assessment Year 2008-09, is directed against the order passed by Commissioner of Income Tax (Appeals)-6, Kolkata, in Appeal No.11111/CIT(A)-6/Kol/2014-15, which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3)/147/263/144 of the Income Tax Act, 1961 (hereinafter referred to as the Act ), dated 24.03.2014. 2. However, in this appeal the assessee has raised a multiple grounds of appeal but at the time of hearing the solitary grievance of the assessee has been confined to ground No.2, which reads as follows: 2. For that the ld. CIT(A) erred in confirming the order of the A.O when the A.O had no jurisdiction to complete the assessment since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from ITO,Wd-1(4), Kolkata to ACIT Central Circle-II(3), Chennai. The order was passed by the assessing officer Ward-1(4) Kolkata on 24.03.2014, which is without jurisdiction. For that we rely on the Judgment of the Hon`ble High Court of Calcutta in the case of RAMSHILA ENTERPRISES PRIVATE LTD, 383 ITR 546 (Cal-HC), wherein it was held as follows: 15. Mr. Poddar, learned senior advocate, drew our attention to an order dated 3rd September, 2012 appearing at page 584 of the additional papers filed by him, which is an order passed under section 127 of the Income Tax Act by no other than the CIT, Kolkata-II , Kolkata, who passed the impugned order under Section 263, transferring the jurisdiction over five assessees including the appellant before us to the ACIT / DCIT , Central Circle XIX, Kolkata in the interest of revenue for better coordination, effective investigation and meaningful assessment consequent to a search conducted on 17th November, 2011 against the business concern of Atha Mines . Mr. Poddar contended that the appellant before us is not in any way connected with Atha Mines Group. But the point of substance is that the impugned order under section 263 was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is by a forum which is lacking in competence with regard to the subject matter. Even a right decision by a wrong forum is no decision. It is non-existent in the eye of law. And hence a nullity. The judgment under appeal is therefore no judgment in the eye of law. This Court in State of M.P. v. Dewadas has taken a view which reinforces our view. We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously. 17. He also relied upon a Division Bench judgement of this Court in the case of ITO, A Ward, District Howrah And Others Vs. Ashoke Glass Works reported in (1980) 125 ITR 491 (Cal) wherein the following view was expressed:- So when the jurisdiction is validly removed by a competent authority under the provisions of a statute, the original court or any Tribunal or authority in such event will be incompetent, as having ceased to have jurisdiction, to proceed further with the pending proceeding or proceeding w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f power partly. It cannot be said that the power should be exercised either as a whole or not at all. Such an argument is fallacious and defeats the very purpose of conferring a larger power. As the actual transfer of the files from the incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be revised by the ld. CIT u/s 263 was passed much prior to the even making of request for transfer of jurisdiction in respect of search matters, we have absolutely no doubt in our mind that only the CIT Kolkata II, Kolkata had the jurisdiction to revise the assessment order passed u/s147 as has been done in this case. The contention of the learned AR in this regard is held to be without substance and not unacceptable. 23. We have considered the rival submissions. It is not necessary for us to consider whether the Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order of transfer in this case was not a restricted one. Reading the order dated 3rd September, 2012 as a whole, it does not appear that any restricted transfer was sought to be made for any particular year or years or otherwise. The order of transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhya Pradesh, reported in AIR 1966 Madhya Pradesh 20 opined in this regard as follows:- Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such instrument is duly stamped. This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that the document is not duly stamped, then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function in the performance of which the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stering officer must see that the document is duly stamped. The words after registering the document occurring in paragraph 232 obviously refer to the entry of the document in the Register maintained of documents presented for registration. They do not mean that the registering officer can make a report about insufficiency of stamp after the document has been admitted to registration. 28. In the case of SBI vs- S. N. Goyal reported in 2009 (8) SCC 92 the following views were expressed:- It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn., Vol. 2, pp. 1946-47) gives the following illustrative definition of the term functus officio : Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision. Black's Law Dictionary (6th Edn., p. 673) gives its meaning as follows: Having fulfilled the function, discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functus officio when it signed the note dated 18-1-1995. 29. Applying the law laid down in S. N. Goyal s (supra) case we are reinforced, in our opinion that the CIT Kolkata II, Kolkata had become functus officio prior to 18th March, 2013 because the transferee assessing officer had assumed jurisdiction without which the notice dated 18th March, 2013 under Section 143(2) could not have been issued. Therefore, the order of transfer was duly published/ notified and/or communicated and thereafter acted upon by the transferee-assessing officer. 30. We are, as such of the opinion that the issuance of the notice dated 18th March, 2013 under Section 263 and the consequent order dated 26th March, 2013 passed under Section 263 of the Income Tax Act were a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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