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TMI Blog2024 (6) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... OMBAY HIGH COURT] we find that the present appeal by the revenue is under improper jurisdiction, owing to the fact that impugned assessment order dated 23.03.2015 is passed by Ld. ITO, Ward-9(2), Kolkata. Accordingly, this present appeal is dismissed with the liberty to the Revenue to file a fresh appeal before the appropriate bench of the Tribunal having jurisdiction over the assessee along with petition for condonation of delay caused on this account. The period exhausted on account of filing the present appeal and its present disposal may be considered for condonation of delay in disposing the appeal, if filed by the revenue before the appropriate bench of ITAT having jurisdiction over the assessee. Appeal of the revenue is dismissed. - SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER For the Appellant : Shri Uttam Kumar Borthakur, Advocate For the Respondent : Shri Arun Bhowmick, JCIT ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER : Appeal filed by the revenue is against the order of Ld. CIT(A), Central NER, Guwahati dated 27.01.2023 passed against the assessment order by ITO, Ward-9(2), Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal hearing before the Assessing Officer with documentary evidence to substantiate such transactions and that the said documents only were sent online to the Assessing Officer and no personal appearance was made before the Assessing Officer nor any adjournment was sought, leaves the Assessing Officer with the view that such transactions are non-genuine in nature. 5. The appellant craves the leave to add/ modify/ alter any or on all the grounds during the course of hearing/pendency of appeal. It is also certified that the copy of the order of the Ld. Commissioner of Income Tax Central NER, Guwahati in respect of appeal No. CIT (A), Kolkata 3/15098/2015-16 dtd 27.01.23 was received in the office of the Pr. Commissioner of Income Tax, Central, Guwahati on 08.01.2023. 3. Brief facts as culled out from records are that assessee filed its return of income on 26.09.2012 reporting total income at Rs.39,890/-. Case of the assessee was selected for scrutiny through CASS for the reason of large share premium received . Statutory notices u/s. 143(2) and 142(1) of the Act were issued and served on the assessee which were primarily not complied with. Ld. AO also issued summons u/s. 131 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is passed by the Ld. AO located at Kolkata in the office of ITO, Ward-9(2), Kolkata. In a recent decision by the Hon ble Supreme Court in the case of PCIT Vs. ABC Papers Ltd. (2022) 141 taxmann.com 332 (SC), it is held that where even if case of an assessee was transferred in exercise of power u/s. 127, High Court within whose jurisdiction AO passed assessment order would continue to exercise due jurisdiction of appeal. According to the Hon ble Supreme Court, the appropriate High Court for disposal of the appeal would be the one where the case was assessed by the AO. Relevant extract from the said judgment is reproduced as under: 35.2 We will first deal with the order passed by the Assessing Officer, Delhi dated 30-12-2010, against which an appeal was decided by ClT (Appeals) - IV, New Delhi on 16-2-2012, against which the ITAT, New Delhi disposed of an appeal on 11-5-2017, against which an appeal was filed in the High Court of Punjab Haryana which it disposed of by order dated 7-2-2019, against which Civil Appeal No. 4252 of 2022 was tiled before this Court. The said Civil Appeal is dismissed by holding the order dated 7-2-2019 passed by the High Court of Punjab Haryana, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is includes notifying the places at which the Benches shall hold their sittings e.g., a particular Bench at Mumbai may hold its sittings at, say, Thane for a particular period for administrative reasons. This provision cannot be interpreted in such a broad manner to clothe the President of the Tribunal the jurisdiction to transfer a pending appeal from one Bench to another Bench outside the headquarters in another State. 38. We have also noticed from sub section (6) that a proceeding before the Tribunal shall be deemed to a judicial proceeding within the meaning of sections 193, 196 and 228 of the Indian Penal Code and it shall also be deemed to be a civil court for the purpose of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. Therefore, there is no manner of doubt that a proceeding before the Tribunal is a judicial proceeding and for certain limited purpose it is deemed to be a civil court. Question for consideration is when an appeal 'or a bunch of appeals are being heard by a Bench of the Tribunal in one State, can an order on the administrative side be passed by the President transferring a live appeal from one Bench to another Bench that too in a dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder: - Power of Bench. 4.(1) A Bench shall hear and determine such appeals and applications made under the Act as the President may by general or special order direct. (2) Where there are two or more Benches of the Tribunal working at any headquarters, the President or, in his absence, the Senior Vice- President/Vice-President of the concerned zone or, in his absence, the seniormost member of the station present at the headquarters may transfer an appeal or an application from anyone of such Benches to any other. 41. From an analysis of rule 4 as extracted above, we find that as per sub rule (1), a Bench shall hear and determine such appeals and applications made under the Act as the President may by general or special order direct. Sub rule (2) says that where there are two or more Benches of the Tribunal working at any headquarters, the President or, in absence, the senior Vice President or Vice President of the concerned zone or in his absence the seniormost member of the station present at the headquarters may transfer an appeal or an application from any one of such Benches to any other. While sub rule (1) empowers the President to direct hearing of appeals by a Bench b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the location of the office of the Assessing Officer. 8.4. From the factual noting of position of addresses of the assessee on various documents extracted above from the order of Ld. CIT(A), it is noted that assessee always had its address in Kolkata. In both the orders of Ld. AO as well as Ld. CIT(A), there is no whisper about transfer of case of the assessee from Kolkata jurisdiction to Gauhati jurisdiction by complying with the provisions of the Act. In this respect, ld. CIT(A) from perusal of the assessment folder of the assessee has noted at page 161 about no challenge raised by the assessee for transfer of its case from the earlier AO i.e. ITO, Ward-10(1), Kolkata to the one who had passed the impugned assessment order i.e. ITO, Ward-9(2), Kolkata. The said observation by the Ld. CIT(A) is extracted below: That, having not challenged the jurisdiction of the Assessing officer (i.ed. ITO, Ward-9(2), Kolkata), within the time limit provided under section 124(3)(a) of the Act, the Appellant cannot be permitted now to raise objection pertaining of transfer of its case from the earlier Assessing Officer (i.e. ITO, Ward-10(1), Kolkata) to the Assessing officer who had passed the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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