TMI Blog2017 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... t from that of A.Y. 2001-02. He went on again and again submitting before this Tribunal that if the entire order is quashed after such a long time without deciding the merits of the case, would cause unusual financial burden on the Revenue to refund the taxes paid. The Standing Counsel should understand that this Tribunal is not to decide the mercy petition but has to decide the issue before it in accordance with the settled judicial principles of law. The Tribunal is not to decide the issue on the basis of human and irrelevant consideration. We noted that Hon’ble Supreme Court in the case of CIT vs. Shelly Products & Another (2003 (5) TMI 4 - SUPREME Court) clearly held that taxes paid by the assessee on the returned income cannot be refunded. We, therefore, following the principle of judicial discipline hold that in the facts of the present case, the Additional CIT in the absence of a valid order u/s. 120(4)(b) has well as section 127(1) of the Act would not have exercised power of a Assessing Officer to pass impugned assessment order. Accordingly, the impugned assessment order passed is without jurisdiction would have no show and, therefore, quash the same. - ITA Nos. 193, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower authority (viz. Asst. Commissioner of Income Tax), in the absence of an Order transferring jurisdiction u/s 127 to the Additional Commissioner of Income Tax, the Order of Assessment passed by the higher authority (viz. Additional Commissioner of Income Tax) is without jurisdiction and needs to be quashed. 5. As held in Mega Corporation Ltd vs Addl. CITITA No. 102/Del/2014, in a case where the proceedings have been initiated by one officer and the assessment order is passed by the another officer, the assessment order is bad in law and illegal and therefore the impugned assessment order is this case should be quashed. In ITA No. 193/Mum/2006, the assessee has raised following supplementary grounds of appeal: In the facts and circumstances of the case and in law, the appellant submits that the Order passed by the Ld. C.I.T. - 2, Mumbai dated 24th October, 2005 U/s.263 of the Act, pursuant to the Order of Assessment passed U/s. 143(3) of the Act dated 15th March, 2005 by the AO is to be quashed, keeping in view the fact and in the event that the said order of assessment is quashed as passed without authority of law by the Hon. Income Tax Appellate Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d en our case. Therefore, we hereby file the enclosed additional grounds of appeal in the Appeals referred to above and filed by us with a request that these grounds may please be adjudicated by the Hon'ble Tribunal. The additional grounds raised herein go to the very root of the matter and deal with the very jurisdiction and authority of the Assessing Officer to pass the Order. Therefore, these grounds can be admitted in the interests of substantial justice and especially when they are raised in a bona fide manner without indulging in delaying tactics. In this connection we wish to rely on the following decisions of the Hon'ble Apex Court and the Hon'ble Jurisdictional High Court............ Subsequently, the additional grounds were reproduced. When the learned counsel for the assessee, at the outset, told that similar additional ground has been admitted and decided in favour of the assessee in assessee s own case for A.Y. 2001-02 and in the case of Tata Communications Ltd. for A.Y. 2002- 03, the learned DR submitted that the decision of the Tribunal in the case of the assessee for A.Y. 2001-02 has not been accepted by the Revenue and the Revenue has filed appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second part of the period was between 31.09.2015, when the decision in the case of Mega Corporation Ltd., was rendered by the Delhi Bench of the Tribunal, and the date of filing the additional ground of appeal i.e. 17.11.2016. Thus, it was contended that there was no justification for this delay. The same group represented by the same counsel had filed same additional grounds in the case of the assessee for A.Y. 2001-02 and in the case of Tata Communication Ltd. for A.Y. 2002-03 on 15.01.2016 and 29.12.2015 respectively. Once the assessee has agitated similar issue on 29.12.2015, there was no reason to file the additional ground in the impugned case on 17.11.2016. Thus, the delay of about eleven months in filing the additional grounds has not been explained even when pointed out. It was further pointed out that the additional grounds raised by the assessee were different from the ordinary additional grounds arising from the orders of the authorities below. This was a different ground altogether when the validity of the assessment order is being challenged on account of lack of jurisdiction of the Assessing Officer for the first time after twelve years and eight months of passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a long time without deciding the merits of the case, unusual heavy financial burden may be put on the Revenue to refund the taxes paid. It was further submitted that with the passage of time, evidences would have been lost as records would have been destroyed by weeding out or lost/misplaced with changes of jurisdiction or otherwise. Knowledge of the assessee about the position of law or facts, as the basis of the new claim here, is irrelevant. Ultimately, it was submitted that due to these reasons there should be finality of matters and the assessee should be barred from raising new issues after inordinate delay. It was further submitted that doctrine of laches should be invoked for unreasonable delay in asserting the claim and the additional ground should not be accepted. It was also submitted before us that the Tribunal should first adjudicate the issue regarding the delay in filing the additional ground. Apart from the delay, it was urged that simply on the basis of the decision of the Tribunal of a different Bench, the it would not be justified that the assessee should file additional grounds of appeal for quashing the assessment order in an abrupt manner. 5. It was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard on merits and the issue should be sent back to the lower authorities for consideration as decided by the Hon ble Delhi High court in the case of Mega Corporation Ltd. (supra). 7. The learned senior counsel for the assessee, on the other hand, contended that the additional ground raised herein go to the very root of the matter and the deal with the very jurisdiction and authority of the Assessing Officer to pass the assessment order. Therefore, it was submitted that these grounds can be admitted in the interests of substantial justice especially when they are raised in a bona fide manner without indulging in delay tactics. Reliance was placed on the following decisions: Jute Corporation of India Ltd. vs. CIT [187 ITR 688 (SC)] CIT vs. S. Nelliappan [66 ITR 722 (SC)] Ahmedabad Electricity Co. Ltd. vs. CIT [199 ITR 351 (Bom)] CIT vs. Pruthvi Brokers Shareholders [349 ITR 336 (Bom)] Ashok Vardhan Birla vs. CIT [208 ITR 958 (Bom)] Inaroo vs. CIT [204 ITR 312 (Bom)] CIT vs. Govindram Bros. P. Ltd. [141 ITR 626 (Bom)] The learned counsel for the assessee, in rebuttal of the submission of the leaned DR that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Elite Pharmaceuticals vs. ITO (242 TAXMAN 345) (Flap No.6 of Paper Book II) wherein the proposition that Section 124 is confined only to territorial jurisdiction was highlighted. He further submitted that the Delhi Bench of the Tribunal has rejected the above Departmental submission in the case of Computer Engineering vs. ACIT (68 taxmann.com 426) (Flap No.6 of Paper Book II) and Lairy Distributors vs. DCIT (Flap No.7 of Paper Book II) having followed the above two Delhi High Court judgments. 9. In view of the above cases, the learned counsel for the assessee submitted that it is clear that a challenge to the inherent jurisdiction of the Additional CIT to pass an Assessment Order can be raised at any stage during the pendency of the Appeal before the Tribunal and that limitation contained in Section 124 is not relevant. The Hon'ble Supreme Court has held that challenge to the inherent jurisdiction can be raised at any belated stage of the proceedings including in appeal or execution in the following two cases: i) Kanwar Singh Saini vs. High Court of Delhi (2012) 4 SCC 307. ii) Kiran Singh v/s. Chaman - AIR 1954 S.C. 340 In any event, it is clear that ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan, the learned counsel for the assessee submitted that none of the above Supreme Court decisions supports the case of the Department. In fact, the first decision in the case of Kiran Singh notices the fundamental distinction between territorial jurisdiction on the one hand and subject matter or inherent jurisdiction on the other hand. In paragraph 6 of its judgment, the Apex Court has observed as follows: It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. Similarly, in the second case of Rafique Bibi, the decision is delivered keeping in mind the aforesaid distinction based on inherent jurisdiction. Further in the case of Deepak Agro Foods, similar view is taken in as much as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bom). Similar view has been taken by Chandigarh Bench of the Tribunal in the case of ACIT vs. Avon Cycles Ltd. (86 ITD 156) by applying the aforesaid decision of the Bombay High Court in the case of Thane Electricity Supply Ltd. 12. We have to first decide the issue regarding the admission of the additional ground. The only issue raised in the additional ground taken by the assessee relates to the validity of the jurisdiction of the Additional Commissioner of Income tax, who has passed the impugned assessment order, has the authority of law to act as a Assessing Officer and to pass the impugned assessment order. We have examined this issue. We noted that similar additional ground was raised before this Tribunal in the case of the assessee for AY 2001-02 and D Bench of this Tribunal in ITA No. 4497 4542/Mum/2005, vide its order dated 31.10.2016admitted the additional ground by holding as under: 3.12. We have examined this issue. It is well accepted position that the Tribunal is a final fact finding body. Requisite documents required for establishing legal authority of the Assessing Officer who had passed the assessment order are expected to be available in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Hon ble Bombay High Court in the case of Inventors Industrial Corporation Limited Vs. CIT 19 4 ITR 548 (Bombay). Similar view was taken by Hon ble Gujarat High Court in the case of P.V. Doshi Vs. CIT 113 ITR 22 (Guj) . Recently Hon ble Delhi High Court handled a similar situation in the case of Valvoline Cummins Ltd 307 ITR 103 (Del) wherein challenge was made to the jurisdiction of Additional Commissioner of Income Tax who had passed the assessment order. It was contended on behalf of the Revenue that challenge of jurisdiction must be made within the stipulated time during the course of assessment proceedings in view of restrictions imposed by the provisions contained in section 124 of the Act. Hon ble Delhi High Court in the aforesaid case held as under:- This is well settled that mere acquiescence in the exercise of powers by a person who does not have jurisdiction to exercise that power cannot work as an estoppel against him. 3.15. It is further noted by us that in the case before us, a challenge has been made about the legal competence of the Additional Commissioner of Income tax and his jurisdiction to exercise the powers and perform the functions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l grounds are purely legal and jurisdictional issues going to the root of the matter as it affects the very jurisdiction of the Addl. CIT in proceeding with the assessment and completing it. That being the case, assessee can raise such issue at any stage. Merely because assessee participated in the assessment proceeding that will not make the assessment order sacrosanct, if the assessee can otherwise prove that the officer completing the assessment had no authority/jurisdiction to do so. Therefore, following the ratio laid down in the decisions relied upon by the learned Sr. Counsel for the assessee, we are inclined to admit the additional/supplementary grounds raised by the assessee and will proceed to adjudicate the same at the very outset. Both these decisions involve identical issue and, in our view, are equally applicable to the present case. The principle of judicial discipline demands that we should follow the order of the co-ordinate Bench. The learned Standing Counsel before us advanced lengthy and exhaustive arguments that this Tribunal should not admit the additional ground as the same has been raised by the assessee after the expiry of substantial time. In this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that since the appeal has been filed before the High Court, this Tribunal should not admit the additional ground and decide the said issue. On our questioning he further explained that the High Court has not stayed the operation of the impugned order of this Tribunal in the case of the assessee for A.Y. 2001-02 and in the case of Tata Communications Ltd. for A.Y. 2002-03. When the hearing continued from 10th Oct 2017 to 11th Oct 2017 and ultimately it was concluded on 12th Oct., 2017, the Standing Counsel tried to seek adjournment on the basis that Revenue has submitted application for referring the issue to the Special Bench. However, he did not submit before us any application being moved for constitution Special Bench. Subsequently when the hearing concluded, the Revenue filed an application, dated 20.10.2017, for constitution of Special Bench on 24.10.2017 in the case of the assessee for A.Y. 2002-03. In our view, the senior Standing Counsel tried that the case should not be disposed off and be kept in abeyance on one pretext or the other even though the arguments of the case has taken three days the Bench could not devote time to other cases. The Standing Counsel must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard we are bound to follow the decision of Hon ble Bombay High Court in the case of Thane Electricity Supply Ltd (206 ITR 727), wherein the High Court has laid down the following principles for the precedents: The general principles with regard to precedents are: ( a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein. ( b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. ( c) The position in regard to the binding nature of the decisions of a High Court on different Benches of the same court, may be summed up as follows: ( i) A single judge of a High Court is bound by the decision of another single judge or a Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para no.22 has categorically held as under: 22. As regards the question of determining the jurisdiction, we may point out that in Moti and Jawahar (supra), which has been relied upon by the petitioner, the court observed that a point which goes to the root of the mater and which affects the very existence of the jurisdiction of an authority can be raised at any time, be it in appeal or revision. Further, we also noted that the while dealing with similar issue, the Hon ble Calcutta High Court in the case of Elite Pharmaceuticals vs. ITO (supra), under para 15 held as under: 15. The assessee had questioned the territorial jurisdiction of the assessing officer and the assessing officer held that the assessee had lost the right to raise the objection by efflux of time. We, as such, find no substance in the case of the appellant. 17. No doubt, the Delhi High Court, as has been heavily relied upon by the learned Standing Counsel for the department, in the case of Mega Corporation Ltd. (supra), has taken a contrary view but that decision does not have a binding precedent on us. This is the settled law, in view of the decision of Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Director, Director, Manager, and Secretary of your also vests with the undersigned vide Notifications quoted supra. Consequently, all the ; of die above persons and follow up correspondences on that account are to be made with the All payments towards Income-tax and Wealth-tax w.e.f 01.08.2001 of the above persons are also to be made to the credit of ACIT Cir.2(3) Mumbai. This may be carefully noted. Your sFaithfully Sd/- ( Jagadish Prasad Jangid) ACIT Cir. 2(3), Mumbai. 3.21 Thus, from the above, it is clear that initially the jurisdiction was with ACIT Cir. 2(3), Mumbai, for passing the assessment order. Subsequently, a notice u/s 143(2) was issued by DCIT Cir. 2(3) dated 1.12.2003 who was indeed successor to the first officer. Subsequently, assessee received a dated 10th December, 2004 from the Additional CIT range 2(3) Mumbai. Apparently, Commissioner of Income Tax was not successor of ACIT/DCIT who had issued earlier notice. But, the assessee has contended that there is nothing on record to show as to how the Additional Commissioner of Income Tax became AO of the assessee and passed the impugned assessment order. 3.22. Thus, the first i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or doing so, transfer any case from one Assessing Officer subordinate to him to any other Assessing Officer (whether with or without concurrent jurisdiction) also subordinate to him. Thus, mandatory requirement of the law in this regard is that an order In writing must be passed by the jurisdictional Commissioner of Income tax for effecting transfer of assessment proceedings from one Assessing Officer to the other. Law in this regard was explained in detail by Hon'ble Delhi High Court in the case of Vaholines Cummins Ltd. (supra). Similar view was taken by the Delhi bench of the Tribunal in the case of Mega Corpn. Ltd. (supra) following the aforesaid judgment of the Delhi High Court. Relevant part of order is reproduced below for the sake of ready reference:- ...... 9. Another contention specifically raised is that there is no transfer order u/s 127 of the Act from transferring the case from the DCIT to the Addl. CIT, Range 6, and New Delhi. The learned CIT(A) has held that hi the cases of transfer of cases to another AO after issue of notice u/s 143(2) of the Act by another AO, the issue involves the interpretation of concurrent jurisdiction which is beyond the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power. It is not as if a part of that power can be exercised by the High Court and the balance power can be exercised by the Sessions Judge. If the High Court is seized of an application for anticipatory bail it must deal with it and similarly if the Sessions Judge is seized of an anticipatory bail, he must deal with it. There can be no joint exercise of power both by the High Court as well as by the Sessions Judge in respect of the same application for anticipatory bail. 30. In the facts of the present case, since the Additional Commissioner had exercised the power of an Assessing Officer, he was required to continue to exercise that power till his jurisdiction in the matter was over. His jurisdiction in the matter was not over merely on the passing of the assessment order but it continued in terms of section 220(6) of the Act in dealing with the petition for stay. What has happened in the present case is that after having passed the assessment order, the Additional Commissioner seems to have washed his hands of the matter and left it to the Deputy Commissioner to decide the stay petition filed under section 220(6) of the Act. We are of the opinion that this was not permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer (present incumbent) who was personally present during the course of hearing before us, jointly stated that no such order (as prescribed under section 127(1) required to be passed by the jurisdictional Commissioner of Income tax) is available in the records. Thus, it is clear that there was no valid transfer of jurisdiction to the Additional Commissioner of Income Tax who had passed the impugned assessment order. Thus, impugned assessment order had been passed without assuming jurisdiction as per law. 3.24. Next issue raised by the Ld. Senior Counsel was that the Additional Commissioner who had passed the impugned assessment order was not authorized to act as assessing officer of the assessee and pass the impugned assessment order. We analyzed the provisions of law in this regard and find that section 2(7A) defines the term of Assessing Officer as under: 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order was passed, the 'Additional Commissioner1 was not authorized to act as Assessing Officer. 3.26. In addition to the above, it further noted by us that only that 'Joint Commissioner1 was authorized to act as an Assessing Officer who was directed under clause (6) of sub- section 4 of section 120 to exercise or perform all or any of the powers and functions of an Assessing Officer as defined u/s 2(7A) of the Act-Now, if we refer to section 120. its perusal makes further clear that only CBDT can empower the Chief Commissioners or Commissioners for issuance of orders to the effect that powers and functions of an Assessing Officer for a particular assessee or classes of assessee shall be exercised by a 'Joint Commissioner'. Despite numerous directions, the Revenue was not able to bring before us any order wherein any specific authority was given by any Chief Commissioner or Commissioner authorizing the impugned Additional Commissioner to pass impugned assessment order. We find force in the argument of Ld. Counsel that at the relevant time when the assessment proceedings were in progress, the word 'Additional Commissioner' was not available in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... published in the Gazette of India, Part II, Section 3, subsection (if), Extraordinary. (Emphasis supplied) 3.29. Perusal of the aforesaid notification reveals that only those Joint Commissioners shall exercise the powers and functions of the Assessing Officers who have been authorized by the concerned Commissioners of Income tax in pursuance to the relevant notification conferring requisite powers to the concerned Commissioners. 3.30. Similarly notification No.228/2001, supra authorize the Commissioners of Income tax to issue orders for authorizing in turn, the Joint Commissioner of Income tax who are subordinate to them for exercising of the powers and performance of the functions of the Assessing Officers. It also, inter alia, authorizes the Joint Commissioners who were so authorized by the Commissioners, to issue orders in writing to the Officers who are subordinate to them for the exercise of the powers and performance of the functions of the Assessing Officers for specified assessee or class of assessee. Relevant part of the said notification is reproduced as under for the sake of ready reference:- ......( c) authorise the Commissioner of Income Tax referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not ipso facto exercise the powers or perform the function of an Assessing Officer under the Act. He can perform the functions and exercise the powers of an Assessing Officer only if he is specifically directed under section 120(4)(6) of the Act to do so. Relevant part of the observations of the bench is reproduced hereunder for the sake of ready reference:- '........... We have considered the arguments advanced by the parties and perused the order of the learned CIT(A), comments of the Assessing Officer and material placed on record. The controversy raised in this appeal relates to the validity of order of assessment dated 29.12.2008 passed by Additional CIT, Range 6, New Delhi. According to the appellant/assessee, it is incumbent under the scheme of statute to vest the Additional CIT u/s 120(4)(6) of the Act to exercise or perform all or any of the powers and functions of Assessing Officer under the Act. 5.1 To examine the above contention, we consider it appropriate to firstly extract section 2(7A) of the Act which reads as under: 2(7A) Assessing Officers ( 7A) Assessing Officer means the Assistant Commissioner or 2Deputy Commissioner 3 or Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there under to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or a 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. 5.3 It will be seen that the said provision provides that Board may by general or special order and subject to such conditions, restrictions or limitations as may be specified therein empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on or as the case may be, assigned to, Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the CBDT as required under clause (6) of sub-section (4) of section 120....... 18.1 So far as the issue before us in the present appeal is concerned, it is now clear from the provisions as discussed hereinbefore that the Additional CIT could act and exercise the powers of an AO only in consequence upon delegation of such authority by the Board, Chief Commissioner of Income-tax or Commissioner of Income-tax as envisaged in the provisions of section 120(4)(6) of the Act. However, the power given to the Chief Commissioner of Income-tax or Commissioner of Income-tax being in consequence upon the delegation of power duly authorized by the Legislature, the Chief Commissioner of Income-tax or Commissioner of Income-tax were duty bound, if at all they were to exercise such delegated power to act according to the provisions of law; meaning thereby that it was incumbent upon the Chief Commissioner of Income-tax or the Commissioner of Income-tax, as the case maybe, if at all they wanted to authorize the Additional CIT to act and perform the functions of an AO, to pass a proper order delegating such functions/powers upon hin This view of ours is fully supported by the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assigned to an Assessing Officer by or under the Act or a notification under section 120 of the Act, he is not competent to act as an Assessing Officer and pass an assessment order. 3.35. Similar view has been taken by Lucknow Bench of IT AT in the case of Microfin Security (P.) Ltd. v. Addl. CIT [2005] 3 SOT 302 wherein it was held that in absence of any allocation being made in favour of Additional Commissioner to make an assessment, he cannot assume for himself such an authority so as to pass an assessment order. 3.36. Similar view has been taken recently in another judgment by the Delhi bench of the IT AT in the case of Harvinder Singh Jaggi v. Asstt. CIT [2016] 157 ITD 869/67 taxmann.com 109. Relevant part of observations of the Bench is reproduced below:- ....... As regard the contention of the assessee that no order under section 127 was passed by the Commissioner of Income-tax, the revenue has submitted that the Addl. Commissioner of Income Tax was provided concurrent jurisdiction over the cases through the order of the Commissioner of Income tax and, therefore, no separate order under section 127 was required to be passed by the Commissioner of Income ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment was required to be obtained by the AO from Joint Commissioner of Income tax whereas the same was granted by Commissioner of Income tax and therefore the same was nullity in the eyes of law. Revenue took a stand that sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee. But Hon'ble High Court did not agree with the contention of the Revenue and observed that:- ........ The expression Joint Commissioner is defined in section 2(28C) to mean a person appointed to be a Joint Commissioner of Income Tax or an Additional Commissioner of Income-tax under section 117(1). Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. The expression has a distinct meaning by virtue of the definition in section 2(28C). The Commissioner of Income tax is not a Joint Commissioner within the meaning of section 2(28C). There is no statutory provision under which power to be exercised by an officer can be~ exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valid order u/s. 120(4)(b) has well as section 127(1) of the Act would not have exercised power of a Assessing Officer to pass impugned assessment order. Accordingly, the impugned assessment order passed is without jurisdiction would have no show and, therefore, quash the same. 19. The learned Standing Counsel, in the end, has taken the contention that the matter may be restored to the file of the CIT(A) for adjudicating the jurisdictional issue. Similar request, we noted has been made by the learned DR before F Bench of this Tribunal while arguing the case of Tata Communications Ltd. (supra), wherein, we noted that while dealing with this contention it has been held as under: 18. We do not find any valid reason to accept the contention of the learned Departmental Representative. As stated earlier by us, exercise of jurisdiction by the Addl. CIT has to be examined on the basis of notification / orders passed under section 120(4)(b) inasmuch as section 127(1) of the Act. In this context, learned Departmental Representative has relied upon certain notifications to justify the validity of the assessment order passed by the Addl. CIT. As far as any order under section 127 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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