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TMI Blog2023 (8) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s. 153(4) - HELD THAT:- Once the competent authority i.e., CIT- 10, Mumbai had already passed sec.127(2) order transferring the assessee s assessment jurisdiction from ACIT, Circle-10(1), Mumbai to DCIT, Circle-1, Pune from 22.11.2011 itself, the former authority was hardly left with any jurisdiction to proceed further i.e., on 24.11.2011 and, therefore, all subsequent proceedings in furtherance thereto, are void and not sustainable in the eyes of law. We find no merit in Revenue s arguments. We make it clear that the question as to whether the assessment jurisdiction stood transferred from ACIT, Circle-10(1), Mumbai as on 22.11.2011 is no more res integra once detailed discussion in [ 2012 (11) TMI 287 - BOMBAY HIGH COURT ] has decided the same in assessee s favour and against the department. This is indeed coupled with the fact that assessee has further succeeded in the preceding assessment year 2008- 2009 thereby getting the corresponding assessment quashed at the CIT(A)'s level. Faced with the situation, we conclude that the Assessing Officer at Mumbai had no authority at all to make sec.92CA reference to the TPO which renders the entire subsequent proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging validity of the impugned assessment itself is concerned. This assessee is a company manufacturing, selling passenger cars and power trains [engine and gear box]. It had e-filed it s return on 25.09.2009 disclosing loss of Rs. 12,32,99,26,796/-. This followed it s revised return dated 14.03.2011 declaring total loss of Rs. 12,19,45,33,056/-. The said return stood processed u/s. 143(1) of the Act accepting the returned loss. It s case was thereafter selected for scrutiny and the Assessing Officer i.e., ACIT, Circle-10(1), Mumbai issued sec.143(2) notice dated 24.08.2010 to the assessee. He thereafter made sec.92CA(1) reference to the Transfer Pricing Officer [in short the TPO ] to determine arm s length price [in short ALP ] of the assessee s international transactions with its overseas associated enterprises [in short AEs ]. This TPO s order dated 26.11.2012 inter alia proposed arm s length price adjustment(s) of Rs. 266 crores. The Assessing Officer i.e., DCIT, Circle-1(2), Pune, thereafter framed his sec. 143(3) r.w.s.144(1) assessment inter alia making the above transfer pricing adjustment of Rs. 266 crores followed by disallowances/additions of deferment of sales tax, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune, then the ACIT-10(1) would have no jurisdiction to issue the impugned notice dated 30.03.2012 and therefore, the said notice dated 30.03.2012 is liable to be quashed and set aside. 4. The relevant facts are that on shifting the registered office of the Petitioner from Mumbai to Pune, the Petitioner in June-July, 2009 had applied for transfer of assessment records from Mumbai to Pune. After, exchange of several letters, the CIT-10 Mumbai by his order dated 22.11.2011 transferred the powers to assess the petitioner from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune. Thus, from 22.11.2011 ACIT- 10(1) Mumbai did not have any power to assess or reassess the petitioner. 5. It is not in dispute that on transfer of the jurisdiction from Mumbai to Pune, the Additional CIT, (TP) Pune has assumed jurisdiction and accordingly issued a notice dated 29.03.2012 to the Petitioner under Section 92CA of the Act relating to Assessment year 2009-2010. 6. However, the ACIT-10(1) Mumbai has issued the impugned notice on 30.03.2012 under Section 14 8 of the Act with a view to reopen the assessment for A.Y. 2005-06. The assessee by its let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Ref: No. C.I.T.-10/Juris.1237/Transfer/2011-12 dated 22.11.2011 reg. Kindly refer to the above, 2. Order u/s. 127(2) was passed in the above mentioned case. There is an interlinked matter in the case of Fiat India (P.) Ltd. The file of Fiat India Automobiles Ltd. For A.Y. 2005-06 has to be reopened. It is therefore requested that a corrigendum to the order may kindly be passed in order to circumvent any jurisdictional issue. Yours faithfully, Sd/- (Virender Singh), Asstt. Commissioner of Income Tax-10(1), Mumbai. 11. The corrigendum order dated 27/3/2012 passed by CIT-10 Mumbai reads thus:- :CORRIGENDUM ORDER: The Order No. C.I.T./Juris.127/Transfer/2011-12, dated 22.11.2011 in the case of M/s. Fiat India Automobile Ltd. (PAN AAACF1716D) is temporarily withdrawn for the sake of administrative convenience. A fresh order is being issued separately. Sd/- (SABJEEV K. ABROL) Commissioner of Income Tax-10,Mumbai. 12. The question therefore to be considered is, when the CIT- 10 Mumbai has transferred the jurisdiction to assess/reassess the petitioner from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have admonished the ACIT-10(1) for making such unjust request. The CIT-10 Mumbai ought to have known that there is no provision under the Act which empowers the CIT to temporarily withdraw the order passed by him under Section 127(2) of the Act for the sake of administrative convenience or otherwise. If the CIT-10 Mumbai was honestly of the opinion that the order passed under Section 127(2) of the Act was required to be recalled for any valid reasons, then, the CIT- 10 Mumbai ought to have issued notice to that effect to the petitioner and after hearing the petitioner ought to have passed any order as he deemed fit and serve the same to the petitioner. 16. In the present case, admittedly, the CIT-10 Mumbai has not issued any notice and has not heard the petitioner before passing the Corrigendum order and in fact the said corrigendum order has not been communicated to the petitioner before issuing the impugned notice dated 30.03.2012 and admittedly the alleged corrigendum order is served upon the petitioner for the first time today in Court. 17. In these circumstances, we quash and set aside the impugned notice dated 30.03.2012 issued by the ACIT-10(1) Mumbai based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra-14 page-9, para-17 page-12 and para-18 pages 12 to 13] to certain limited extent regarding costs etc. His further case is that their lordships conclusion regarding finality of the transfer order and subsequent jurisdiction of the Mumbai authorities still holds the field. Mr. Pardiwala quoted hon ble jurisdictional high court s recent decision in PCIT vs. Capstone Securities Analysis (P.) Ltd. [2023] 146 taxmann.com 423 (Bom.) upholding tribunal s decision dated 09.08.2017 quashing the corresponding assessment for this precise reason alone. He lastly referred to functus officio doctrine that the Assessing Officer at Mumbai could not have exercised any authority in assessee s case. 7. The Revenue has strongly defended the impugned assessment. Learned CIT-DR s case before us is that the latter assessing authority at Pune had not conveyed its acceptance of the impugned/transfer dated 22.11.2011, therefore, till that time the corresponding assessment jurisdiction continued to vest with the ACIT, Circle-10(1), Mumbai who had made his valid reference to the TPO. He further submitted that such a technical issue does not render the entire assessment as void ab initio as it is a mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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