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TMI Blog2019 (9) TMI 1740X X X X Extracts X X X X X X X X Extracts X X X X ..... oard or any other Authority have been produced on record u/s 120(1)(2) and (4) of the I.T. Act, 1961, empowering the Addl. CIT, Range-23, New Delhi, to act as an AO in the present case to pass the impugned assessment order.
In the present case, the Addl. CIT, Range 23, New Delhi lacks in jurisdiction over the case of assessee. In the absence of any Order or Notification issued by the Board or any other Income Tax Authority in this behalf, contentions of Ld. D.R. are rejected.
We are of the view that Addl. CIT, Range-23, New Delhi do not have jurisdiction over the case of assessee and since he did not assume the jurisdiction legally and validly, therefore, the impugned assessment order framed by him is vitiated and illegal and without jurisdiction. Appeal of Assessee allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. 5. Learned Counsel for the Assessee submitted that assessee filed return of income on 29.09.2011 with ITO, Ward-22(2), New Delhi PB-1. The ITO, Ward-22(2) issued notice under section 143(2) Dated 07.09.2012. Thereafter, two notices Dated 19.07.2013 and 23.07.2013 were issued by ITO, Ward-22(2), New Delhi [PB 2-3]. Thereafter, DCIT, Circle-22(1) issued three notices Dated 13.11.2013 and 06.12.2013 [PB 4, 5 and 6]. Thereafter, proceedings from December, 2013 were taken-up by Addl. CIT, Range-23, New Delhi (Assessing Officer). The assessment order is also passed by the Addl. CIT, Range-23, New Delhi. Learned Counsel for the Assessee referred to Section 2(7A) of the I.T. Act, 1961, which provides definition of "Assessing Officer" Section 2 (7A) - 2. In this Act, unless the context otherwise requires,- (7A) "Assessing Officer" means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or subsection (2) of section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -23 to act as an Assessing Officer. The reply to the RTI Application is also very cryptic. In the absence of such order of the Board/CCIT/PCIT, Addl. CIT, Range-23 [Assessing Officer] could not have assumed the legally valid jurisdiction. Learned Counsel for the Assessee further submitted that there is no order passed under section 127 for transfer in this case after recording the reasons which is mandatory in nature and an opportunity should have been given to assessee to object to the transfer of the case. In the present case, no order under section 127(1) has been passed for transferring the jurisdiction earlier from ITO, Ward-22(2), New Delhi to DCIT, Circle-22(1) and thereafter to Addl. CIT, Range-23. Therefore, A.O. was not having any valid jurisdiction to pass the assessment order in this case. Learned Counsel for the Assessee relied upon the following decisions. 5.3. Order of ITAT, Delhi C-Bench in the case of Harvinder Singh Jaggi vs. ACIT, Circle-22(1), New Delhi [2016] 157 ITD 861 (Delhi-Trib.) in which it was held as under : "Where Addl. Commissioner of Income-tax passed assessment order, however, no order conferring concurrent jurisdiction to Addl. Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that "Section 124 is applicable only when assessee challenges the territorial jurisdiction of the A.O." Therefore, Section 124(3) is not applicable to the present case. Learned Counsel for the Assessee, therefore, submitted that Addl. CIT, Range-23, has no jurisdiction to pass the present assessment order, therefore, it is nullity which is not curable under the Law. The entire assessment order is, therefore, liable to be set aside and quashed for lack of jurisdiction of the A.O. i.e., Addl. CIT, Range-23, New Delhi. 6. On the other hand, the Ld. D.R. relied upon the assessment order and submitted that A.O. has mentioned in the assessment order that this case was assigned to him by Order of Commissioner of Income Tax, Delhi-VIII, New Delhi, vide Order Dated 09.12.2013. The Ld. D.R. submitted that Addl. CIT, Range-23 issued notice under section 143(2) Dated 12.12.2013 for hearing of the case in which he has also mentioned that this intimation is issued under section 129 of the I.T. Act, to which, assessee did not object to the jurisdiction of the Addl. CIT. The assessee participated in the proceedings. The Ld. D.R. also filed copy of order sheet on record along with notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax, Delhi-VIII, New Delhi, vide Order Dated 09.12.2013, therefore, there must be some jurisdictional order in favour of the Addl. CIT, Range-23, New Delhi. 7. We have considered the rival submissions and perused the material on record. It is not in dispute that assessee filed return of income for assessment year under appeal with ITO, Ward-22(2), Delhi, who was having jurisdiction over the case of the assessee. The ITO, Ward22(2) issued several statutory notices to the assessee for completion of the assessment for assessment year under appeal as referred to in the arguments of the Learned Counsel for the Assessee. Thereafter, the DCIT, Circle-22(1) issued three statutory notices for completion of the assessment. Thereafter, from December, 2013 the assessment have been carried-out by the Addl. CIT, Range23, New Delhi. However, no jurisdiction order of DCIT, Circle-22(1) or Addl. CIT, Range-23 have been produced on record. No order under section 120 or transferring the case to the present A.O. under section 127 of the I.T. Act have been produced on record. The assessee has asked for the information under RTI Act, to which also no specific answer have been given to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Chief Commissioner or Chief Commissioner or 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 Director or Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply. (5) The directions and orders referred to in sub-sections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners, by the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) 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 115WD or sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers and functions conferred on or as the case may be assign to the A.O. by or under this Act in respect of any specified area or person or class of persons or income or class of income or case or class of cases, shall be exercised or perform by Addl. Commissioner or Others and where any order is made under this clause, reference in any other provisions of this Act or in any Rules made thereunder to the A.O. shall be deemed to be reference to the Addl. Commissioner or Others by whom the powers and functions are to be exercised or perform under such order and any provisions of this Act requiring approval or sanction of the Joint Commissioner shall not apply. These provisions, therefore, make it clear that the Board may assign the power to any Income Tax Authority to exercise powers of the A.O. having regard to territorial area etc., or the Board may authorise or empower Pr. Director General, Pr. Chief Commissioner etc., to issue order in writing to assign powers of the A.O. to other Authorities including Addl. Commissioner of Income Tax as Assessing Officer. Considering the provisions of Section 2(7A) of the I.T. Act, 1961, which defines the definition of the Assessing Officer w ..... 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