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TMI Blog2022 (6) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... Despite giving sufficient time to the ld. DR to produce those orders, no such orders were produced by the ld. DR before us for both the assessment years. We find under similar facts and circumstances, this Tribunal had indeed admitted the additional grounds raised by the assessee after a long gap of 10 years or 15 years, as the case may be, and adjudicated those additional grounds and allowed the assessee s appeal by quashing the assessments framed for want of orders u/s. 120(4)(b) and u/s. 127 in cases TATA SONS LTD. VERSUS ACIT CIR. 2 (3) , MUMBAI [ 2016 (10) TMI 1228 - ITAT MUMBAI] , M/S. TATA COMMUNICATIONS LTD [ 2019 (8) TMI 1446 - ITAT MUMBAI] , TATA COMMUNICATIONS LTD. [ 2022 (3) TMI 218 - ITAT MUMBAI] . We find that all the oral and written arguments of the ld. DR have been met in detail by the ld. AR before us as detailed supra. The issue in dispute is already addressed by the various decisions of the Tribunal which are reproduced in the ld. AR s rebuttal referred to supra. The same are not reiterated herein for the sake of brevity. As stated earlier, the issue is already settled by various decisions of the Tribunal in favour of the assessee. We hold that in the absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 18.01.2012 u/s 142(1) of the Act issued by the Joint Commissioner of Income-tax, Range - 1, Thane ('JCIT') 6. 23/01/2012 Notice dated 23.01.2012 u/s 142(1) of the Act issued by the JCIT 7. 16/03/2012 Notice dated 16.03.2012 issued by the JCIT 8. 08/03/2013 Notice dated 08.03.2013 u/s 142(1) of the Act issued by the Additional Commissioner of Income-tax, Range - I, Thane (Addl. CIT) 9. 30/03/2013 Draft Order u/s 143(3) r.w.s. 144C(1) of the Act passed by the Addl. CIT 10. 17/01/2014 Final Assessment Order u/s 143(3) r.w.s. 144C(13) of the Act passed by the JCIT 11. 26/06/2019 Letter dated 26.06.2019 addressed to Assistant Commissioner of Income Tax, Circle-3, Thane, requesting copies of order under section 120(4)(b) and section 127 of the Act 12. 16/12/2019 Letter dated 16.12.2019 addressed to Assistant Commissioner of Income Tax, Circle-3, Thane, requesting copies of order u/s 120(4)(b) and section 127 of the Act 13. 16/02/2021 Letter dated 16.02.2021 addressed to Assistant Commissioner of Income Tax, Circle-3, Thane, requesting copies of order u/s I20(4)(b) and section 127 of the Act 14. 18/04/2021 E-mail sent to Deputy Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Additional Commissioner_or_Addition no.1_Director of Joint Commissioner Joint Director who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act;" 3.3. From the aforesaid dentition of the Assessing Officer, we find that the same clearly provides that for an Additional CIT or JCIT to exercise or perform all or in all the powers and functions conferred on are assigned to the Assessing Officer, an authorization u/s. 120(4)(b) of the Act is required mandatorily. For this purpose, it would be relevant to reproduce the provisions of Section 120 which speaks about „jurisdiction of income tax authorities‟ as under:- "Section 120 (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. Explanation.--For the removal of doubts, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorise the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director to perform the functions of the Assessing Officer by issuing orders in writing separately u/s. 120(4)(b) of the Act. This independent order u/s. 120(4)(b) is mandated in statute itself which alone would confer jurisdiction of Addl. CIT or JCIT to perform the functions of the Assessing Officer under the Act. In the absence of any independent order passed u/s. 120(4)(b) of the Act, the Addl. CIT or JCIT could not be considered as Assessing Officer as defined u/s. 2(7A) of the Act at all. In addition to this, there should also be a separate transfer order transferring jurisdiction from ACIT to Addl. CIT / JCIT in terms of Section 127 of the Act. This can be either by way of a general order or by way of a special order in writing. 3.5. We find that the ld. DR made an elaborate written submission dated 08/04/2022 and the ld. AR also filed rebuttal to the said written submissions vide letter dated 13/04/2022. The gist of various contentions of the ld. DR together with rebuttal of the assessee is given in following tabular form:- Sr No Ld. DR's contentions Assessee's rebuttal The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of verification or setting it aside does not arise. Further, in the present case, the Appellant has repeatedly requested for the production of orders u/s 120(4)(b) as well as order u/s 127 of the Act and even the Hon'ble Bench has afforded opportunities and time to the Ld. DR for the same. Thus, the Appellant submits that this is not a case which requires any verification of fresh facts which are not available on record. On the contrary, these must exist a s part of the assessment record, and in absence of the same, the Addnl. CIT/JCIT could not have performed the role of an Assessing Officer c) There is inordinate delay in filing the additional grounds. The assessee had participated in the proceedings and was satisfied that CIT Range-i Thane was having valid jurisdiction (Para 6) The Act does not provide any limitation period for filing additional grounds of appeal. It is a settled law that an additional ground of appeal can be raised at any time and even for the first time before the Tribunal. Further, the Appellant submits that merely because the Appellant had participated in assessment proceedings will not make the assessment order sacrosanct f the said order is othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid order, it is not possible to ascertain whether it pertains to both the assessment years. b) The assessment order of AY 2010-11 mentions the details of assignment of case to Addnl. CIT, however, due to shifting of records and office buildings, the physical copy of assignment order is not readily available in the records of the Department (Para 4.1) It has been stated that the said order could not be produced due to shifting of records/office buildings. However, the office building address of the jurisdictional Assessing Officer for the Appellant has remained the same since 2013 till date. In any case, the order u/s 120(4)(b) and order u/s 127 of the Act ought to form part of the assessment records for AY 2009-10 and 2010-ii and it is not the case of the Department that the entire case records for both these years are not available with them. c) Assignment order to Addnl. CIT will partake character of order u/s 120(4)(b) or u/s 127 since under no other section, such an order can be made. Assessee has not challenged the assignment order of the CIT-1, Thane and only challenged order u/s 120(4)(b) or u/s 127. Since the assignment order was issued for the same purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e without jurisdiction and liable to be quashed in absence of relevant notifications/orders u/s 120(4)(b): > Tata Sons Ltd. (ITA No. 4497/Mum/2005) (Para 3.26 - Pg 14, Para 3.31- Pg 16) > Tata Communications Limited (ITA No. 7071/Mum/2005) (Para 15- Pg 24, Para 18- Pg 46) > Tata Sons Ltd. (ITA No. 193/Mum/2006) (Para 18- Pg. 49) > Kishore Vithaldas (ITA No. 5661/Mum/2017 & Ors) (Para 13- Pg. 15, Para 15- Pg 47) > Tata Communications Ltd (ITA No. 7514/Murn/2011) (Para ii- Pg 12), etc. Further, as already submitted above, the Ld. DR has failed to produce any order / the said assignment order before the Hon'ble Bench despite repeated requests by the Appellant and opportunities granted by the Hon'ble Bench. Hence in absence of the separate order required Is 120(4)(b) of the Act, the assessment orders passed by the JCIT/Addnl. CIT are without jurisdiction and liable to be quashed. 3. Identical issue decided in favour of Revenue by the Hon'ble Bombay High Court and Hon'ble Delhi High Court a) Reliance placed on the case of N. Rajgopal (ITA No.1454/2016) (Bom HC) (Para 14, Para 14.5) 5 Re: DR's contention no. 3 above - Reliance on N. Rajgopal ( supra) 5.1 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition of the Assessing Officer u/s 2(7A) of the Act at all and in fact, it is fairly accepted by the Appellant that Addnl. CIT/JCIT are covered under the list of Revenue officers mentioned in the said section as held by the Hon'ble Bombay High Court. There is absolutely no quarrel on the above proposition as has been held by the Hon'ble High Court. 5.3 The controversy in the instant case is different from the case before Hon'ble Bombay High Court in N. Rajgopal (supra). The controversy in the instant case is whether the Addnl CIT/JCIT as covered u/s 2(7A) of the Act can exercise the powers and functions of an Assessing Officer in the absence of orders issued in writing as per section 120(4)(b) of the Act. Such an issue did not exist before the Hon'ble Bombay High Court in the case of N. Rajgopal (supra). 5.4 The assessee in the case of N. Rajgopal (supra) has not challenged the existence of an order u/s 120(4)(b) of the Act before the Hon'ble Bombay High Court at all. It is under these circumstances that the Hon'ble Bombay High Court, after holding that the amendment by FA 2007 to include Addnl CIT in the definition of the Assessing Officer is retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction was validly transferred from the ACIT to the Addnl. CIT/JCIT. Hence, without prejudice to the above contention that the ratio of N. Rajgopal (supra) is not applicable to the present facts of the case, even if it is assumed that the decision of N. Rajgopal (supra) does not support the Appellant's case, the assessment orders passed by the Addnl. CIT/JCIT should still be held to be without jurisdiction and liable to be quashed in absence of a valid order u/s 127 of the Act. b) Reliance placed on the case of Pr. CIT vs. Mega Corporation (ITA No.128/2016)(Del HC) (Para 10 to para 13. 6. Re: DR's contention no. 3 above - Reliance on Mega Corporation (supra) 6.1 At the very outset, the Appellant wishes to submit that in the facts of Mega Corporation, an order of assignment of duties by the Commissioner of Income Tax-2, Delhi to the Addnl./Joint CIT dated 1.08.2007 was produced before the Hon'ble Delhi Tribunal as is evident from para 6 of the Delhi ITAT decision (62 taxrnann.com 351). It was under these circumstances that the Hon'ble High Court rendered its finding in para 6 of the order. In the instant case, notably, there is no order on record by which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a notice under sub-section (i) of section 142 or sub- section (2) of section 115WE or sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under sub-section (2) of section 115W1) or sub-section (i) of section 142 or under sub- section (i) of section 11514II or under section 148 for the making of the return or by the notice under the first proviso to section 115B. For under the first proviso to section 144 to show 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 sub- section (i) of section 15344 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the text of subsection (i) to section 124 begins with the words "by virtue of anti direction or order issued under sub- section i) or sub-section '2) of section 120, the Assessing Officer has been vested with jurisdiction". However, in the instant case, the Appellant is challenging the jurisdiction of the Addnl. CIT/JCIT in the absence of an order u/s 120(4)(b) of the Act and not those covered u/s 120(1) and 120(2) of the Act. Thus, the Appellant submits that its case is not covered under section 124 of the Act at all. 6.7. In view of the above, the Appellant submits that sub-section () of the section 124 cannot be read in isolation to hold that tile jurisdiction of an Assessing Officer should be challenged only within the time stipulated therein but should be read in context of various other provisions of section 124 which as highlighted above, is only concerned with the territorial jurisdiction of the Assessing Officer and not the 'inherent' jurisdiction. Thus, the Appellant submits that section 124 of the Act applies only to the territorial jurisdiction of an Assessing Officer and not where the inherent jurisdiction is challenged, as in the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in so far as the inherent jurisdiction for passing an order of assessment under section 153A of the Act is concerned, when no search authorization under section 132 was issued or requisition under section 132A of the Act was made." Similarly, Hon'ble Allahabad High Court in the case of Prasad Chandra vs. CIT (supra) in para no.22 has categorically held as under: "22. As regards the question of determining the jurisdiction, we may point out that in Moti and Jawahar (supra), which has been relied upon by the petitioner, the court observed that a point which goes to the root of the mater and which affects the very existence of the jurisdiction of an authority can be raised at any time, be it in appeal or revision." Further, we also noted that the while dealing with similar issue, the Hon'ble Calcutta High Court in the case of Elite Pharmaceuticals vs. ITO (supra), under para 15 held as under: " 15. The assessee had questioned the territorial jurisdiction of the assessing officer and the assessing officer held that the assessee had lost the right to raise the objection by efflux of time. We, as such, find no substance in the case of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said provisions are clearly concerning with the dispute of the assessee with respect to the territorial jurisdiction of the Assessing Officer and has no relevance in sofai' as the inherent jurisdiction for passing an order of assessment under section 153A of the Act is concerned, when no search authorization under section 132 was issued or requisition under section 132A of the Act was made." Similarly, Hon'ble Allahabad high Court in the case of Prasad Chanda vs. IT (supra) in para no.22 has categorically held as under: "22. As regards the question of determining the jurisdiction, we may Point out that in Moti and .Jawahar (supra), which has been relied upon by the petitioner, the court observed that a point which goes to the root of the mater and which affects the very existence of the jurisdiction of an authority can be raised at any time, be it in appeal or revision." Further, we also noted that the while dealing with similar issue, the Hon'ble Calcutta High Court in the case of Elite Pharmaceuticals vs. ITO (supra), under para 15 held as under: "15. The assessee had questioned the territorial jurisdiction of the assessing officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Mumbai ITAT per incunium. (Refer Pg. Nos. 70 to 74of the COJ) 6.12. Further, as regards para 8 of the decision in case of Mega Corporation (supra), the Appellant wishes to submit that whether the assessment order passed by the Addnl. CIT/ JCIT in absence of transfer order u/s 127 of the Act is valid or not was not a question of law raised before the Hon'ble Delhi 1-ugh Court as is evident from the question framed before the Hon'ble High Court. Thus, the Hon'ble Delhi High Court, with due respect, had no occasion to appreciate that section 127 operates independently of sections 120 and 124 and the order is not a speaking order with respect to absence of order u/s 127 of the Act. Thus, the Appellant humbly submits that the said decision cannot be treated as a ratio decendi on this aspect. c) There is a decision of Hon'ble Mumbai Tribunal in case of ACIT vs. Stock Traders Pvt. Ltd., (ITA No.4493/Mum/2003) wherein the additional ground on similar jurisdiction issue was dismissed. (Para 14.6, Para 14.7) admissibility of additional grounds of appeal depends on the facts of each case. Hence, the aforesaid decision of Stock Traders cannot be treated as a prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon'ble Bench and are placed before the Hon'ble Tribunal only by way of this written submission The Ld. DR has also relied on various case laws to support this contention which were not filed during the course of the hearing and hence the same should not be considered as part of the record of the present case before the Hon'ble Tribunal. Without prejudice to the above the Appellant wishes to submit that when the statute itself requires that specific orders ought to be passed u/s 120(4)(h) of the Act, then it cannot be said that this is an administrative matter. The Act u/s 2(7A) clearly defines the Assessing Officer to include Addnl. CIT/JCIT who have been directed u/s 120(4)(b) of the Act. In absence of such an order issued in writing, the Addnl.CIT/JCIT cannot function and exercise powers of an Assessing Officer under the Act. If an Addnl. CIT/JCIT does so without an order authorizing him to do so, he has acted without jurisdiction i.e. without the authority of law. The decision of the CIT in conferring jurisdiction to a particular Addnl. CIT/JCIT could be an administrative matter at best, but when there is no order issued in writing directing the concerned Addnl. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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