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TMI Blog2023 (9) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the assessment order is passed by the Ld. AO at the office of DCIT, Circle Yamuna Nagar, Circle Jagadhri, Haryana which does not fall with the jurisdiction of ITAT, Kolkata benches. We are constrained to transfer the present appeal from the Kolkata Bench of ITAT to the proper jurisdiction based on the location of AO passing the impugned order by taking into consideration the order of Hon ble High Court of Bombay in the case of MSPL Ltd.[ 2021 (5) TMI 739 - BOMBAY HIGH COURT] In this case, the Hon ble Bombay High Court had an occasion to deal with the power to transfer pending appeal from one bench to another between the Tribunal, whether outside the headquarters in another state or from one bench to another bench within the same headquarters. While dealing with this issue, Hon ble Court analysed section 255 of the Act, more particularly sub-section (5) and (6) and arrived a conclusion that sub-section (5) 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 any state. According to the Hon ble High Court in, sub-section (6) of section 255, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case and in law, the Ld. CIT(A) has erred in accepting the explanation of the assessee on seized document that was not furnished before the A.O without giving opportunity to the A.O to examine the same under the provision of Section 292C and furnishing his comments. 3. In addition to the above grounds, we find that assessee has moved an application under Rule 27 of the Income-tax (Appellate Tribunal) Rules, 1963 (hereinafter referred to as ITAT Rules ) for raising additional plea in order to defend the impugned order. Through this application under Rule 27, assessee has raised the following two issues, namely (i) For that the Ld. CIT(A) ought to have held that the assessment was made without service of notice u/s. 153A and 143(2), hence, the assessment order was not valid in the eyes of law. (ii) For that the Ld. CIT(A) ought to have held that there was no service of notice by affixture or such service was invalid in law, hence, the entire assessment order was liable to be cancelled/quashed. 4. Brief facts as culled out from records are that a search and seizure action u/s. 132 of the Act was conducted on Abhijit Group, based at Nagpur, on 18.01.2011. Assessee was an em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned assessment order before the Ld. CIT(A), Panchkula. Since the case of the assessee was transferred to Kolkata jurisdiction w.e.f. 15.04.2013, appeal filed was transferred from Ld. CIT(A), Panchkula to Ld. CIT(A), Central-III, Kolkata. The first appellate order is passed from the office of Commissioner of Income Tax Appeals-20, Kolkata, dated 31.01.2018 whereby appeal of the assessee is allowed on the quantum issues. 4.5. Revenue is in appeal before the Tribunal. The said appeal is filed with a delay of 19 days for which a petition for condonation of delay is placed on record wherein reasons for the delay have been explained to be in respect of administrative issues owing to transfer of case from DCIT, Circle, Yamuna Nagar, Jagadhri to Kolkata and its centralisation. 5. Before embarking upon the grounds of appeal taken by the revenue and the application moved by the assessee under Rule 27, we note that the impugned assessment order is passed by the Ld. AO located at Jagadhri in the office of Dy. Commissioner of Income-tax, Circle Yamuna Nagar (Haryana) 135001. In a recent decision by the Hon ble Supreme Court in the case of PCIT Vs. ABC Papers Ltd. (2022) 141 taxmann.com 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction to transfer a pending appeal from one bench to another bench outside the headquarters in any state. According to the Hon ble High Court in, sub-section (6) of section 255, no power is discernible that an order on the administrative side can be passed by the President, transferring live appeal from one bench to another bench that too in a different state outside the headquarters. 6.2. Relevant extracts in this respect are reproduced below: 37. From a careful analysis of section 255, more particularly sub-section (5) thereof, it is not discernible as to how power of, the President to transfer a pending appeal from one Bench to another Bench outside the headquarters in a different State can be said to be traceable to this provision. What sub section (5) says is that the Tribunal shall have power to regular its own procedure and that of its various Benches while exercising its powers or in the discharge of its functions. This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngalore, the number of benches is three. Thus, this provision can be invoked to transfer an appeal from one Bench in Mumbai and to another Bench in Mumbai or from one Bench in Bangalore to another Bench in Bangalore. But this provision cannot be invoked to transfer a pending appeal from one Bench under one headquarter to another Bench in a different headquarter. Hon ble Court also referred to Rule 13 and 28 of the ITAT Rules to point out that original jurisdiction of the Bench is determined by the location of the office of the AO. Relevant extracts of this rule from the said judgment is reproduced as under: 40. The Tribunal rules have been framed in exercise of the powers conferred by sub section (5) of section 255 of the Act to regulate the procedure of the Appellate Tribunal and the procedure of the Benches of the Tribunal. Since the order dated 20.08.2020 has been passed under rule 4 of the Tribunal Rules, the same is extracted 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 headquarte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been preferred or to the concerned Assessing Officer with such directions as the Tribunal may think fit. 43. Standing Order has, been made in pursuance of sub rule (1) of rule 4 of the Tribunal Rules. Standing Order provides for hearing of appeals and applications by different Benches of the Tribunal. In other words, it provides for the territorial jurisdiction of the different Benches. It is seen therefrom that the three Benches of the Tribunal at Bangalore have jurisdiction over the entire State of Karnataka, excluding the districts of Belgaum, Mangalore, Karwar and North Kanara over which the Panaji Bench has jurisdiction. In so far the Benches at Mumbai are concerned, those have jurisdiction over Mumbai City, Mumbai Suburban and Thane Districts of Maharashtra. Clause 4 is interesting and it says that the ordinary jurisdiction of the Bench will be determined not by the place of business or residence of the assessee but by the location of the office of the Assessing Officer. 7. Considering the judgment of the Hon ble Supreme Court in the case of ABC Ltd. (supra) as well as the decision of Hon ble High Court of Bombay in the case of MSPL Ltd. (supra), we find that the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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