TMI Blog2016 (5) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... re acts without jurisdiction and therefore a nullity. - GA NO. 3929 OF 2015, ITAT NO. 181 OF 2015 - - - Dated:- 8-3-2016 - Girish Chandra Gupta and Justice Asha Arora, JJ. For The Appellant : Mr. N. K. Poddar, Sr. Adv. Mr. Vineet Tibrewal, Adv, Mr. Siddharth Das, Adv. For The Respondent : Mr. Animesh Kanti Ghosal, Sr. Adv. Mr. Siddhartha Bhattacharyya. Adv. GIRISH CHANDRA GUPTA, J . The subject matter of challenge in the appeal is a judgment and order dated 30th July, 2015 passed by the learned Tribunal disposing of 19 several appeals by a common judgment. All the aforesaid 19 appeals were preferred by 19 several assessees. The appellant in this case is Ramshila Enterprises Pvt. Ltd., that is to say, one of the 19 appellants before the Tribunal. In dealing with this appeal we are only concerned with the appellant, Ramshila Enterprises Pvt. Ltd. Our findings and observations are naturally restricted to the appellant before us. The relevant assessment year was 2008-2009. Return was filed on 6th November, 2008 showing loss of a sum of ₹ 4053/- and seeking refund of a sum of ₹ 39,546/-. From the profit and loss account it appears that a sum of ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e money trail of the share capital. ii] Further the A.O. should examine the directors as well as examine the circumstances which necessitated the change in directorship if applicable. He should examine them on oath to verify their credentials as director and reach a logical conclusion regarding the controlling interest. iii] The A.O. is directed to examine the source of realization from the liquidation of assets shown in the balance sheet after the change of Directors, if any. After conducting the inquiries verification as directed above, the A.O. should pass a speaking order, providing adequate opportunity of being heard to the assessee. Challenging the aforesaid order of the CIT, the assessee unsuccessfully approached the learned Tribunal. The learned Tribunal dismissed the appeal. The assessee is, therefore, before us. Mr. Poddar, learned senior advocate appearing for the assessee/appellant, has pressed the following questions of law:- (a) Whether the Tribunal was justified in holding that the Commissioner of Income Tax, Kolkata-II, had jurisdiction over the appellant at the time of issue of the Show Cause notice on 18th March, 2013 and passing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT did not follow the procedure for service of notices. He did not even try to serve by post or by courier. It may, according to him, be due to an ulterior motive. Because that would have shown with some amount of certainty as to when was the notice dated 18th March, 2013 actually posted by him. This is important, according to him, for the simple reason that time granted was only seven days from the date of issue, which by no stretch of imagination can be said to be a reasonable time. The CIT, therefore, deliberately did not take recourse to the procedure laid down in the law and took recourse to personal service that too at a wrong address. He drew our attention to the declaration made by the Inspector, which is at page 590 of the additional papers filed by him. He submitted that it would appear that the Inspector did not make any attempt whatsoever to try to find out the correct address of the assessee. Even assuming that the Inspector served by affixation, it was a perfunctory piece of job performed by him and by no means is in accordance with the law laid down by various Courts including the Supreme Court. He in support of his submission relied upon the judgement in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fully satisfied with. As such, we do not find any lack of opportunity of hearing by the ld. CIT in all such cases. This argument fails. Mr. Poddar contended that there was no opportunity given not to talk of any genuine opportunity as erroneously opined by the learned Tribunal. Mr. Ghosal, learned senior advocate, appearing for the revenue drew our attention to paragraph 26.m of the impugned judgment, which reads as follows:- As far as service of notice in the case of Ramshila Enterprises Pvt. Ltd. is concerned, we find that the assessee has been shifting its address from time to time, as has been pointed out by the learned DR. When such frequent change in the address is seen in the background of the factual position as discussed in the earlier part of the order, we cannot resist the conclusion that the service at the last known address by affixture was proper. He backed up his submissions by referring to the following documents filed by Mr. Poddar. He drew our attention to a document dated 8th May, 2009 at page 191 issued by the ITO Ward 4(1) by which cheque dated 8th May, 2009 on account of refund was sent to the assessee. The address, appearing in the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce other than 4,Ganesh Chandra Avenue where the assessee admittedly was carrying on business and considering that the assessee had simultaneously been operating from four different places indicated above, we are of the opinion that the view taken by the learned Tribunal in paragraph 26.m, quoted above, is a plausible view and does not admit of any challenge on the ground perversity. Therefore the question No. (b) is answered in the negative and in favour of the Revenue. Now we come to the question No.(a). Mr. Poddar, learned senior advocate, drew our attention to an order dated 3rd September, 2012 appearing at page 584 of the additional papers filed by him, which is an order passed under section 127 of the Income Tax Act by no other than the CIT, Kolkata-II , Kolkata, who passed the impugned order under Section 263, transferring the jurisdiction over five assessees including the appellant before us to the ACIT / DCIT , Central Circle XIX, Kolkata in the interest of revenue for better coordination, effective investigation and meaningful assessment consequent to a search conducted on 17th November, 2011 against the business concern of Atha Mines . Mr. Poddar contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the rules. What can be done only by at least two learned Judges cannot be done by one learned Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. Even a right decision by a wrong forum is no decision. It is non-existent in the eye of law. And hence a nullity. The judgment under appeal is therefore no judgment in the eye of law. This Court in State of M.P. v. Dewadas has taken a view which reinforces our view. We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously. He also relied upon a Division Bench judgement of this Court in the case of ITO, A Ward, District Howrah And Others Vs. Ashoke Glass Works reported in (1980) 125 ITR 491 (Cal) wherein the following view was expressed:- So when the jurisdiction is validly removed by a competent authority under the provisions of a statute, the original court or any Tribunal or authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO/CIT who already had it. The power to do a particular act also includes a power to restrict the exercise of power partly. It cannot be said that the power should be exercised either as a whole or not at all. Such an argument is fallacious and defeats the very purpose of conferring a larger power. As the actual transfer of the files from the incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be revised by the ld. CIT u/s 263 was passed much prior to the even making of request for transfer of jurisdiction in respect of search matters, we have absolutely no doubt in our mind that only the CIT Kolkata II, Kolkata had the jurisdiction to revise the assessment order passed u/s147 as has been done in this case. The contention of the learned AR in this regard is held to be without substance and not unacceptable. We have considered the rival submissions. It is not necessary for us to consider whether the Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order of transfer in this case was not a restricted one. Reading the order dated 3rd September, 2012 as a whole, it does not appear that any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court of Appeal A special bench in the case of Komal Chand Vs- The State of Madhya Pradesh, reported in AIR 1966 Madhya Pradesh 20 opined in this regard as follows:- Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such instrument is duly stamped. This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that the document is not duly stamped, then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re taking any further action, that is to say, in the matter of registration, the registering officer must see that the document is duly stamped. The words after registering the document occurring in paragraph 232 obviously refer to the entry of the document in the Register maintained of documents presented for registration. They do not mean that the registering officer can make a report about insufficiency of stamp after the document has been admitted to registration. In the case of SBI vs- S. N. Goyal reported in 2009 (8) SCC 92 the following views were expressed:- It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn., Vol. 2, pp. 1946-47) gives the following illustrative definition of the term functus officio : Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision. Black's Law Dictionary (6th Edn., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functus officio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functus officio when it signed the note dated 18-1-1995. Applying the law laid down in S. N. Goyal s (supra) case we are reinforced, in our opinion that the CIT Kolkata II, Kolkata had become functus officio prior to 18th March, 2013 because the transferee assessing officer had assumed jurisdiction without which the notice dated 18th March, 2013 under Section 143(2) could not have been issued. Therefore, the order of transfer was duly published/ notified and/or communicated and thereafter acted upon by the transferee-assessing officer. We are, as such of the opinion that the issuance of the notice dated 18th March, 2013 under Section 263 and the consequent order dated 26th M ..... 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