TMI Blog2018 (9) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer in the present appeal) to the office of the Commissioner of Income Tax, Bhubaneswar, copy of which is placed on record by the Department along with written submission filed on 15.06.2017), however, the office of the Additional Commissioner of Income Tax, has assigned the cases to the ACIT(OSD) vide order dated 25.11.2008. Before us, ld. DR could not place any authorization or order issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act by the Commissioner authorizing an Additional Commissioner of Income Tax to assign or reassign the cases to the Assessing Officers, neither any CBDT Circular supports the Additional Commissioner of Income Tax on record to transfer or reassign the cases to any other Assessing Officer. In view of the decision Valvoline Cumins Limited Vs. Deputy Commissioner of Income-Tax and others [2008 (5) TMI 20 - HIGH COURT OF DELHI], the ACIT(OSD), Range-2, Bhubaneswar could not have jurisdiction to pass the assessment order in case of the assessee as the ACIT, Circle-2(1), Bhubaneswar had already exercised the jurisdiction by issuing notice u/s.143(2) of the Act when admittedly no order u/s.127 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolved. 5. That, the learned CIT (A) has committed a serious error by not considering the principles of natural justice as raised by the appellant in the Grounds of Appeal No-3 in his appellate order and for that matter the order of CIT (A) is liable to be set aside. 6. That, the learned CIT (A) has committed a serious error by going into the merit of the grounds of appeal without giving an opportunity of being heard to the appellant as the appellant has categorically requested to decide that issue of jurisdiction and in any case before proceeding to the matter of merits of the assessment the learned CIT (A) should have given an opportunity of being heard regarding the merit of the case citing the reason that the issue of jurisdiction does not stand the test of appeal and for that the order of the CIT (A) is liable to be set aside or annulled. 7. That, the learned CIT (A) has committed a serious error by not interpreting the section 40(a)(ia) of the Act before confirming the addition of ₹ 1,16,000/- and ₹ 65,67,791/- regarding payments made to Pattnaik Minerals Pvt. Ltd and truck drivers respectively as per Ground of Appeal No-5 and 7 raised before hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular case to any officer posted in his Range. No order u/s.127 of the I.T.Act, 1961 is necessary for transferring the cases from one AO to another AO within the same Range. Such transfers can be effected by the Addl. CIT/Jt. CIT by Internal Office Orders since no change in jurisdiction is involved because all Officers have concurrent jurisdiction over cases of that Range. The reliance of the A/R on the decision of the Hon ble Cuttack High Court (Orissa) in the case of ITO Others Vrs. U.K.Mohapatra Co. Others in Civil Appeal No.5067 of 2009 is of no avail to the A/R in this case. In that case the Jt. DIT(Inv.) Unit- II has issued authoriziation in favour of ITO(Hqrs.). The Hon ble Court held that ITO (Hqrs.) was not an Assessing Officer because no notification could be produced by the Departmental Counsel to prove that the powers of the AO had been vested in the ITO (Hqrs.). In the instant case the facts are completely differently. ACIT(OSD), Range-2, Bhubaneswar has been posted to Range-2, Bhubaneswar by the orders of the Chief Commissioner of Income Tax, Orissa Region, Bhubaneswar. As clarified earlier in the order all officers posted to a particular Range func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . AR also relied on the following judicial decisions and prayed for allowing the appeal of the assessee :- i) U.K.Mahapatra And Company And Others Vs. ITO Ors., 196 ITR 243 (jurisdictional High Court); ii) Bindal Apparels Limited Vs. ACIT, 85 ITD 414 (ITAT Delhi Bench) 8. Contra, ld. DR vehemently opposed to the submissions and referred to the Gazette Notification and the orders passed by the CBDT and also filed written submissions, which read as under :- It is humbly submitted that during the course of hearing in the above mentioned case the Hon'ble ITAT Cuttack bench, Cuttack has drawn my attention in regards to the affidavit made by the appellant on 19.05.2015 copy of which was submitted before the Hon'ble bench. In the said affidavit the appellant has sworn that he was not aware about the change of scheme of jurisdiction notified by CBDT w.e.f 01.08.2008. After 01.08.2008 the jurisdictional areas of all the assesses are vested with Addl. CIT/Jt.ClT of the concerned range. Further it was also sworn by the appellant that no such order dated 01.08.2008 of the CBDT as cited by the CIT(A) is available regarding the restructuring of scheme of jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the affidavit the Hon'ble Tribunal has directed the Respondent - Income-tax Department to produce the letter dated 01.08.2008 issued by the Central Board of Direct Taxes, New Delhi. The Income-tax department after taking so many adjournments on 29th October, 2015 has finally submitted before the Hon'ble Tribunal that no such document exists which has been referred and has produced some other documents in the open court, which are as under. a) Gazette notification dated 31.07.2001. b) Order No.50/2008-09 dated 19.11.2008 issued by the Chief Commissioner of Income-tax, Bhubaneswar. c) Letter issued by the Joint Commissioner of Income-tax, Range- 2, Bhubaneswar to the Joint Commissioner of Income-tax (Sr. DR), office of the Commissioner of Income-tax (ITAT), Cuttack dated 14.10.2014. d) Order of the Additional Commissioner of Income-tax, Range-2, Bhubaneswar dated 11.08.2008. e) Jurisdiction order u/s 120 of the IT. Act, 1961 issued by the Commissioner of Income-tax, Bhubaneswar dated 31.10.2006. That, the Respondents - Income-tax Department has failed to produce any submission in writing for not submitting the order of the CBDT, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahu Ld. Counsel for the assessee has filed an affidavit stating therein that no circular of CBDT relating to conferring the jurisdiction over the Addl. CIT to transfer cases from one AO to another AO within his range is available. From the affidavit it is not clear whether CBDT has ever issued any circular in this regard. Therefore, the Department is directed to produce the circular if any in this regard before the tribunal on the next date of hearing. Accordingly, hearing is adjourned sine die and to be listed for the next bench. Sd/- Sd/- BPJ SKY ( AM) ( JM) In continuation of hearing proceedings, the contention of ld. AR is that the order is without any jurisdiction. Ld. AR also relied on the judicial decisions to support his case. Further ld. AR before us has argued only on the jurisdictional aspects and has not argued on any other grounds or additional grounds. First of all, we would like to reproduce Section 2(7A) of the Income Tax Act, 1961, where the definitions of Assessing Officer has been provided :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. It is pertinent to note that w.e.f. 1.6.2016 the Finance Act, 2016 is inserted the following sub-clause (c) : ( c) where an action has been taken under section 132 or section 132A, after expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or subsection (2) of section 153C or after the completion of the assessment, whichever is earlier. 12. A perusal of sub-section (3)( b ) of section 124 of the Act shows that the jurisdiction of an Assessing Officer cannot be called in question by an assessee after the expiry of one month from the date of which he was served with a notice under sub-section (1) of section 142 of the Act or after completion of assessment, which was to be earlier. It is further evident that sub-section (4) of section 124 of the Act has been made subject to the provisions of sub-section (3) in case an assessee has questioned the jurisdiction of an Assessing Officer. It is only in those jurisdictions that the Assessing Officer is to refer the matter for determination to the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; ( b) where the [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners as the Board may, by notification in the Official Gazette, authorise in this behalf. ( 3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our ITOs). The collection unit in a Range is headed by a TRO who is responsible for collection and recovery of tax. The Record Keeping Unit of the Range is headed by an Administrative Officer/Office Superintendent. 18.2 As head of the range, the main functions of the Addl./Joint Commissioner of the Income Tax are : i. Supervision and control ii. Statutory functions iii. Effective tax-payer services iv. Expansion of tax-base v. Judicial functions vi. Processing of TEPs vii. Computerization Note: Detailed functions of the Range are enumerated in the relevant chapters of this Manual such as Office Management , Assessment Procedure , etc. 16. From the above, it is clear that the Additional/Joint Commissioner, is the head of the Range, exercises concurrent jurisdiction and may, as such, also be required to formulate assessments in revenue yielding and complex cases and the assessment unit of the Range consists of five assessing officers (one DCIT/ACIT and four ITOs). The proposal to assign cases to an ACIT(OSD) is generally moved or held from the Range Head. However, cases are assigned by a Commissioner of Income Tax only after pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her authority having concurrent jurisdiction can conclude exercise of that power. Further in para 29, the Hon ble High Court has held as under :- 29. It appears to us quite clearly that there is a distinction between concurrent exercise of power and joint exercise of power. When power has been conferred upon two authorities concurrently, either one of them can exercise that power and once a decision is taken to exercise the power by any one of those authorities, that exercise must be terminated by that authority only. It is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible in a situation where both the authorities jointly exercise power but it certainly is not permissible where both the authorities concurrently exercise power. One example that immediately comes to the mind is that of grant of anticipatory bail. Both the Sessions Judge and the High Court have concurrent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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