TMI Blog2018 (5) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reasons before passing the order of transfer were envisaged to enable the party likely to be affected by such transfer to submit his objections. If the assessee had any such sustainable objection, he is expected to have raised the same before the Assessing Officer at Hyderabad after the transfer of the case. From the fact that the assessee has not raised any such objection would clearly show that he had no grievance against the transfer as such. Indeed, the assessee objected to the jurisdiction exercised by the Assessing Officer at Mumbai on the ground that he was being assessed at Hyderabad. Transfer of the case to Hyderabad is obviously in tune with his objection, which appears to be the reason why the assessee has not raised any objection on the transfer. The assessee has also not pleaded any prejudice on account of transfer or purported absence of reasons for such transfer. For the aforementioned reasons, we reject this submission of the assessee as well. Levy of interest under Section 234B(1) - Held that:- Assessee, whose income tax is liable to be deducted at source, is not liable to pay advance tax under Section 208 of the Act and consequently, he is not liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints raised by the Assessing Officer at Hyderabad. After considering the submissions made by the assessee/his representation, the Assessing Officer/ACIT at Hyderabad passed orders under Section 143(3) read with Section 147 of the Act on 18.03.2002. By these orders, the Assessing Officer included certain allowances under the taxable income of the assessee and accordingly, he imposed additional tax as well as interest thereon under Section 234B(1) of the Act. Assailing these orders, the assessee filed separate appeals to the Commissioner of Income Tax (Appeals)-V, Hyderabad. The assessee challenged the assessment orders on three grounds viz ., i) that the Income Tax Officer, Ward 11(3), Mumbai had no jurisdiction to issue notice under Section 148 of the Act; ii) that the quantum of allowances included under the taxable income was not correct; and iii) that charging of interest is not sustainable. The Commissioner (Appeals) rejected all these three grounds by his common order passed on 18.12.2002. The assessee reiterated all the above three grounds in the further appeals filed by him before the Tribunal, which, by its common order, confirmed the order of the Commissioner (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned standing counsel has also sought to support levy of interest based on the judgment of the Supreme Court in Commissioner of Income-Tax vs. Anjum M.H.Ghaswala and others 2001 Volume 252 ITR page 1 . 5. We have carefully considered the submissions of the learned counsel for both the parties with reference to the record. 6. In Re first submission - Jurisdiction of the Assessing Officer at Mumbai to initiate proceedings under Sections 147 and 148 of the Act Section 2(7) A of the Act defined the 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 Sub-Section (2) of Section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under clause (b) of Sub-Section (4) of that Section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act. 4 2001 Volume 252 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no notification was issued by the Competent Authority under Section 120(2) and (3) of the Act vesting the jurisdiction on the Assessing Officers at Mumbai over the persons residing in Mumbai. In the absence of such plea, it is reasonable to presume that such a notification existed empowering the Assessing Officers in Mumbai to deal with the persons, such as the assessee in the present case. Both the Appellate fora have, indeed, proceeded on that premise in holding that the Assessing Officer at Mumbai was conferred with the jurisdiction to exercise powers under Sections 147 and 148 of the Act. Even before this Court, the assessee has not raised a specific plea that no such notification was issued conferring the territorial jurisdiction on the Assessing Officer at Mumbai for issuing such notices. The only premise on which the assessee has questioned the jurisdiction of the Assessing Officer at Mumbai was that as he has not filed returns and was not assessed at Mumbai, the Assessing Officer concerned at Mumbai had no jurisdiction. This plea, in our opinion, is wholly without any merit. The jurisdiction of an Assessing Officer does not depend upon the fact whether a person had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and to buttress the same, he has placed reliance on the judgment of the Supreme Court in Ajantha Industries vs. Central Board of Direct Taxes (1976) 102 ITR 281 (SC) . 10. Admittedly, the assessee has not raised the objections regarding failure to issue notice and non-recording of the reasons before passing the order of transfer either before the Original Authority or before the two Appellate fora . The question that needs to be considered is whether on the facts of the present appeals, these aspects are relevant or not. With regard to non-recording of the reasons, it is not known whether the transfer order contained any reasons or not, because the assessee has not put this aspect in issue before any of the two Appellate fora . None of the judgments on which reliance has been placed by the assessee dealt with a situation where this aspect was raised for the first time in appeals before the Courts which rendered the said judgments. Similarly, the effect of failure of the assessee to raise the objection of non-issue of notice before passing the order of transfer, either before the Assessing Officer or the two Appellate fora did not fall for consideration of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. The issue as to whether the assessee, who is a salaried employee, is liable to pay advance tax, is no longer res integra . A Full Bench of the Uttarakhand High Court in Maersk Co.Ltd (1 supra) elaborately discussed this aspect and held that an assessee, whose income tax is liable to be deducted at source, is not liable to pay advance tax under Section 208 of the Act and consequently, he is not liable to pay interest under Section 234B(1) thereof. A similar view was taken by the Delhi High Court in GE Packaged Power Inc. (supra). In a recent judgment in Ian Peter Morris (supra), this issue is conclusively adjudicated by the Supreme Court. Paragraph 4 of the said judgment, which contains the ratio, reads as under: A perusal of the relevant provisions of Chapter VII of the Act (Part A, B, C and F of Chapter VII) would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
