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TMI Blog2020 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy, Accountant Member And Sri Aby T. Varkey, Judicial Member Shri Dhrubajyoti Ray, JCIT, D/R, appearing on behalf of the Revenue. Shri S. M. Surana, Advocate, appeared on behalf of the assessee. ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the revenue is directed against the order of the Learned Commissioner of Income Tax (Appeals) - 7, Kolkata, (hereinafter the ld. CIT(A) ), passed u/s. 250 of the Income Tax Act, 1961 (the Act ), for the Assessment Year 2010-11. The assessee has filed a cross-objection being C.O. No. 109/Kol/2018 against the appeal of the revenue in ITA No. 1355/Kol/2018. 2. The ld. CIT(A) in this case, has held that, the order passed by the Income Tax Officer (ITO), Ward-2(2) u/s 147 r.w.s. 143(3) of the Act, on 28/03/2016 is without jurisdiction. He further held that the reopening of assessment u/s 147 of the Act is bad in law. Aggrieved the revenue is in appeal before us. 3. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 4. A notice was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 6.1. In the case of Elite Pharmaceuticals (supra) objections u/s 124(3) of the Act, was not raised within the period specified under the Act. Similarly, in the case of Abhishek Jain (supra), no objection was raised 124(3) of the Act. Thus, on facts, both these cases are distinguishable. In the case of S.S. Ahluwalia (supra), the Hon ble Delhi High Court held that, passing of an assessment order without making reference to the Commissioner u/s 124 of the Act is a mere irregularity and not a nullity. In that case, the Hon ble Court held that the Assessing Officer had jurisdiction by virtue of the place of residence or place of work of the assessee. As the Assessing Officer had legal jurisdiction over the assessee, the Court held in favour of the revenue. In the case on hand, the admitted fact is that the Assessing Officer who issued notice u/s 148 of the Act, had no jurisdiction over the assessee. Thus, case-law relied upon by the ld. D/R, are not applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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, - (a) authorise any 1 [Principal Director General or] Director General or 14 [Principal Director or] Director to perform such functions of any other income-tax authority as may be assigned to him by the Board; (b) empower the 1 [Principal Director General or] Director General or 14 [Principal Chief Commissioner or] Chief Commissioner or 14 [Principal 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 persons or incomes or classes of income or cases or classes of cases, shall be exercised 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, references 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 Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction can be exercised only when CBDT confers such jurisdiction u/s 120(4) and 120(5) of the Act. 8.3. In accordance with the powers conferred u/s. 120 (1) and 120(2) of the Act, the CBDT issued notification on no. 191/2002(F.No.187/9/2002-ITA-1 dated 30.7.2002) whereby the CBDT conferred the jurisdiction by specifying the Designation of the specific Income Tax Authorities, its Head Quarters, Territorial Area, Persons or classes of persons and cases or class of cases. 8.4. As per the above referred notification, the assessee's being a company, the case fell under the jurisdiction of Commissioner of Income Tax, Kolkata-III, Kolkata vide serial no. 205 of the notification. The jurisdiction of the assessee fell with the Assessing Officer being ITO ward 8(3), Kolkata, who was under the charge of Commissioner of Income tax -Kolkata III. 8.5. The Authorities under the Income Tax, after the jurisdiction is conferred in them by virtue of notification u/s 120(1) and 120(2) of the Act, have to perform their functions as per sec. 124 of the Act. Section 124 of the Act, reads as under: 124. (1) Where by virtue of any direction or order issued under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (c) 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 subsection (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 subsection (1) or sub-section (2) of section 120 .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year in question, from ITO Ward 33(1) to ITO Ward 8(3). There can be a valid transfer order from ITO Ward 33(1) only if he was vested with the jurisdiction over the assessee. As he was never vested with the jurisdiction either by the notification of the CBDT or by any order of the Commissioner of Income tax earlier to the issue of notice u/ s 143(2) of the Act, he could not have validly transferred the case to ITO, Ward-8(3), Kolkata. The file/case was restored to its jurisdictional area. When the said ITO Ward 33(1) was not having valid jurisdiction at the time of issue of notice u/ s 143(2) of the Act, then the notice is bad in law. The transfer of the folder from ITO Ward 33(1) to ITO Ward 8(3) in fact establishes that the revenue realised that the ITO Ward 33(1) had no jurisdiction. 8.11. The Ld DR also raised the issue that u/s 120(4) and 124(5) of the Act, there can be concurrent jurisdiction. There is no dispute over that. However there is no direction or order or notification u/ s 120(1) or 120(2) of the Act, conferring concurrent jurisdiction to the ITO Ward 33(1) along with ITO Ward 8(3) u/ s 120(1) or u/ s 120(2) of the Act, which is the condition menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed fresh appeal before the ITAT but the same was also dismissed in ITA No. 1768 and 1769/Kol/2006, B-Bench on 15.9.2014. The Revenue filed an appeal before the Hon'ble High Court which was dismissed with the following observations: The appeal carried by theACIT-39 to the Appellate Tribunal was dismissed as not competent. The order of the Appellate Tribunal was challenged by the Revenue in this Court. This Court did not interfere with the order of the Tribunal and the matter rested there without this Court's order being challenged by the Revenue before the Supreme Court. In the present case, the matter pertains to the same assessment year when the ITO-44 has preferred an appeal where the initial assessment was not done by the ITO-44 but such assessment 'was conducted by the ACIT-39 at a point of time when AC1T-39 lost jurisdiction over the assessee pursuant to the said CBOT Notification 2002 Since there was a fundamental error, the Appellate Tribunal dismissed the appeal as incompetent since the order of the Assessing Officer who had no jurisdiction to undertake the assessment qua the assessee could never have been found to be legal or resurrected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 158BC the Assessing Officer had no jurisdiction the assessment is illegal. 2. Income Tax officer vs. Sarkar Co. 1954 AIR 613 Calcutta. If at the time of filing, of the appeal the ITO had no seisin over he assessee s case and case is transferred by the Commissioner of Income Tax from ITO Ward-III(2) to some other Officer, on the date of filing of the Appeal, the ITO Ward III(2) cannot file the Appeal and the appeal of the department rightly dismissed by the ITAT. 3. Ram Krishna Ramnath vs. Commissioner of Income Tax AIR 1932 Page 65 Nagpur When by notification dated 28th March, 1923 the powers conferred on the ITO should be exercised by the ACIT the Notice issued by the ITO was illegal 4. CIT West Bengal and another vs. Anil Kumar Roy Choudhury and another reported in 66 ITR page 367 The decision of the Calcutta High Court in Sarkar Co. 1954 AIR 613 Calcutta was approved and held that if the case is transferred by the commissioner or The board then the income tax officer from whom the file is transferred shall have no concern with the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee were beyond the period of limitation prescribed under the law. The assessee submitted that he changed his address and the new address was mentioned in the return of income filed for subsequent years. The assessee also submitted that he filed Form No.18 with Registrar of Companies, regarding change of address. No separate intimation was given to the Assessing Officer by the assessee regarding change of address. The Court held that mere mentioning of the new address on subsequent return without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. The court found that the assessee claimed to have filed a letter for change of address but such letter was never produced before any of the authorities. It was held that on the facts of the case, the notice issued on the address available on the PAN data base was proper and valid service of notice u/s 143(2) of the Act. The court held that the change of address in the database of PAN is must, in case of change of the name of the company and/ or any change in the registered office of the corporate office of the assessee and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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