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TMI Blog1998 (7) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... rs on common grounds that the CIT (Appeals) is perfectly justified in cancelling the ex parte assessments as the jurisdiction of the case is at Siliguri and not at Calcutta and the Supreme Court decision in the case of Industrial Trust Ltd. v. CIT [1973] 91 ITR 550 is not applicable. 2. The departmental appeals are filed late by 24 days and the Assessing Officer (AO) has filed affidavit dated 13-12-1991 wherein he has explained the reasons for the delay in filing the appeals. After hearing both the parties and after perusal of the material placed on the record we condone the delay for good reasons and admit the appeals. 3. In this case the Assessing Officer issued notices under sections 148 and 142(1) to the assessee but since there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee and having gone through the Supreme Court decision came to the conclusion that in his view the ratio of Supreme Court decision would mean that in the case of the assessee the jurisdiction should be at Siliguri and not in Calcutta. According to him, the Supreme Court held that irrespective of the return filed with the officer not having jurisdiction, the officer having jurisdiction was competent in assuming the jurisdiction. He, therefore, cancelled both the assessments. 5. Being aggrieved by the order of the CIT (A) the Revenue has preferred these appeals to the Tribunal and the assessee has filed these cross objections to protect the decisions of the CIT (Appeals). 6. The learned departmental representative Sri P. C. Nay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th ITO, Cir.Siliguri. He also invited our attention to the assessee's letters addressed to the CIT, Calcutta and Chairman, CBDT where in the authorities were requested to transfer the file from Calcutta to Siliguri to avoid the double assessments. Sri Banerjee also brought the fact to our notice that although in response to the assessee's letter the CBDT replied that the Chief CIT/Director General, Calcutta have power w.e.f. 1-4-1988 to transfer the cases but there was no reply from the Chief CIT. According to him, there is no such order passed by the CBDT in which the jurisdiction is vested in ITO, Calcutta. He further clarified that no notice under section 148 or under section 142(1) was received by the assessee. On the basis of these sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Central Circle-IV, Delhi, and the assessments made by him were valid." This case law also does not help the cause of the Assessing Officer as has rightly been distinguished and held by the CIT(A) in his order. According to the ratio of the Supreme Court decision the officer having jurisdiction was competent in assuming the jurisdiction and in the present case the ITO, Siliguri having jurisdiction over the case has already finalised the assessments for asstt. year 1985-86 on 17-1-1986 and for asstt. year 1986-87 and 7-10-1986 and, therefore, the ex parte assessment orders passed by the Assessing Officer on 27-3-1991 cannot survive and cannot be saved by the ratio of the Supreme Court decision. Moreover, since the notices under sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 1985-86 and 1986-87 were filed at Siliguri on 17-1-1986 and 7-10-1986 and assessments were completed on 8-3-1988 and 7-2-89 respectively. On 21-4-1987 the ITO, Siliguri wrote a letter to the ITO, Calcutta for transfer of record for asstt. year 1984-85. The assessee requested the CBDT vide letter dated 13-5-1987 to transfer the file to Siliguri and a copy of the letter was endorsed to the ITO, Siliguri and the ITO, Calcutta. The reply from the CBDT was received vide letter dated 13-4-1988 saying that the powers to transfer the cases have been assigned to the Chief CIT/Director General w.e.f. 1-4-1988. The ITO, Calcutta issued notice under section 148 on 24-2-1989 and completed the assessment for both the years under section 144 on 27-3-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the assessment orders cannot stand to the test of judicial scrutiny and, therefore, cannot be sustained as such in law. Thus, it is crystal clear from the facts of the case that there are two assessments made by the department in the case of this assessee for both the assessment years under consideration i. e., one by the ITO, Siliguri and the other by the ITO, Calcutta. The actions of the department at both the places have resulted in double assessment of the same assessee for the same assessment years. This fact has not been controverted by the department and the assessments made at Calcutta have also not been so far cancelled/set aside by the CIT, Calcutta. On the other hand, all the assessments of the assessee for asstt. years 1985-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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