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TMI Blog2019 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee stated that the facts regarding additional ground raised in these two assessment years i.e. AYs 2004-05 and 2005-06, vide letter dated 20.01.2017 and 27.01.2017 before the ITAT challenging the validity of the assessment orders passed by the Additional CIT inter alia on the following grounds: - "1. On the facts and in the circumstances of the case the assessment order dated 31-12-2007, passed by the Additional Commissioner of Income Tax under section 143(3) is bad in law, illegal and without jurisdiction and.) or in excess of jurisdiction. On the grounds amongst others, that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the assessment order and consequently the Honourable Tribunal he pleased to quash the said order. 2. The Additional Commissioner of Income Tax lacked jurisdiction to pass the order of assessment u/s 143(3) dated 31-12-2007 and to exercise the powers of performing the functions of as Assessing Officer, without establishing that he possessed such jurisdiction conferred on him under section 120(4)(b) of the Act. Accordingly, in the absence of an order tx1s 120(4)(b) conferring valid jurisdiction on the Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) (FB) Ahmedabad Electricity Co. Ltd. v. CIT (188 ITR 351) (Bom High Court) (FB) CIT v. Pruthvi Brokers & Shareholders (349 ITR 336) (Bom High Court)" 4. The learned Counsel for the assessee in support of his above argument also stated that on identical set of facts, the ITAT has admitted similar additional grounds in the case of its group concerns in the following cases: - "Tata Sons Ltd. V. ACIT (162 ITD 450) (Mum ITAT) Tata Sons Ltd. v. ACIT (ITA No. 3745/Mum/2006) (Mum ITAT) Tata Sons Ltd. v. ACIT (ITA No. 263m9/Mum/200) (Mum ITAT) Tata Communications Ltd. V. Addl. CIT (ITA No. 7071/Mum/2005) (Mum ITAT) Tata Communication Ltd. Vs. Addl. CIT (ITA Nos. 3972/Mum/2007 & 1109/Mum/2008) (Mum ITAT)" 5. He stated that the necessity for raising of additional grounds arose after the decision of Mumbai ITAT in the case of Tata Sons Ltd. Vs. ACIT (162 ITD 450), wherein exactly identical issues was first dealt with. He has further narrated the facts that filing additional grounds of appeal in ITAT on 20.01.2017 & 27.01.2017 challenging the jurisdiction of the Addl. CIT, who passed the assessment order under consideration. The company vide letter dated 24.01.2017 requested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent assessee filed appeal before CIT(A), who partly allowed the relief to the assessee vide order dated 27.02.2009. Against the order of CIT(A), the assessee as well as the Revenue filed an appeal before Tribunal. 9. We noted that the assessee after filing appeal before ITAT 20.01.2017 and 27.01.2017 challenging the jurisdiction of Addl. CIT to pass the assessment order under section 143(3) of the Act and consequently the assessee company vide its letter dated 24.01.2017 requested the jurisdictional AO to produce certain documents including the authorization from the CBDT to the CIT and the relevant order passed by the CIT and any other relevant document. The details of the letter are enclosed in assessee's paper book at page No. 3. We noted that as per section 2(7A) of the Act, AO means inter alia an Addl. CIT who is directed under section 120(4)(b) to exercise or perform all or any of the powers and functions conferred on, or assigned to, an AO under the Act. As per Section 120(4)(b), the CBDT has to first empower the Commissioner to issue orders and then the said authority has to assign or confer the authority of the AO on the Addl. CIT. In the present case none of such notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident on record, subsequently the Addl. CIT, Range-1(3), assumed jurisdiction as an Assessing Officer of the assessee and issued notices under section 142(1) and 143(2) on 9`" December 2004 and ultimately completed the assessment for the impugned assessment year vide order dated 21st February 2005. Therefore, we have to examine firstly, whether there is an order of transfer of jurisdiction under section 127 of the Act, from the DCIT, Range-1(3) to the Addl. CIT, Range-1(3) and secondly, whether the Addl. CIT is vested with authority/jurisdiction to act/perform or exercise the powers of an Assessing Officer in respect of the present assessee. Before proceeding to decide the, issue, it is necessary to examine certain provisions of the Act. The expression "Assessing Officer' has been defined under section 2(7A) of the Act. The aforesaid provision as it existed during the relevant period is extracted hereunder for convenience: Definitions 2. In this Act, unless the context otherwise requires, - ......... .......... (7A) "Assessing Officer" means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director Or the Income Tax Officer who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the assessee is, as per the provisions of section 2(7A), as it existed at the relevant period, Addl CIT was not an Assessing Officer. It is further submitted, even otherwise also, there is no notification / order empowering the Addl. CIT to act as an Assessing Officer in terms of section 121)(4)(b). To counter the aforesaid contention of the assessee, the 'earned Departmental Representative has relied upon the following notifications. i)Notification no.228 of 2001 date 31.072001 ii)Notification no.MIC/HQ- 1/Jurisdiction/2001 -02 dt 01.08.2001; iii)Notification no. ACIT, Range-1(3)/Jurisdiction/2001-02 dated 08.08.2001; and iv)Notification no.267/2001 dated 17.09.2001 15. At this stage, we propose to deal with each of the aforesaid notification relied upon by the Department to establish the valid exercise of jurisdiction as an Assessing Officer by the Addl. CIT. The first notification being notification no.228 of 2001 dated 31st July 2001, corresponding to notification no. S.O. 732(E) dated 31 July 2001, is a notification issued under sub-section (1) and (2) of section 120 of the Act and obviously is not a notification issued under clause (b) of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this notification has been issued by the Board under section 120.(b) directing JCIT/IDIT to exercise powers and functions of the Assessing Officer. It does not mention Addl. CIT / Addl. Director of Income Tax in any case of the matter at the time of issuance of this notification, Addl. CIT was not treated as an Assessing Officer either under section 2(7A) or under section 120(4)(b) as the amendment including Addl.. CIT, as an Assessing Officer was brought to the statute by Finance Act, 2007, though, with retrospective effect from 1st April 1994. Therefore, under no circumstances, the Board notification dated 17th September 2001, can be said to have conferred the jurisdiction of assessing officer on Addl. CIT. In this context, it is necessary to deal with the argument of the Department that as per the definition of JCIT under section 2(28C), it includes Addl. CIT, therefore, the notification dated 17th September 2001, issued under Section 120(4)(b) also covers the Addl. CIT. We are not convinced with the aforesaid submissions of the Department. Had it been the intention of the legislature to treat the Addl. CIT as JCIT and, in turn, as Assessing Officer under section 2(7A) r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise must be terminated by that authority only. In fact on a careful perusal of the orders passed by the Tribunal in case of Mega Corporation Ltd. (supra) and Tata Sons Ltd. (supra) we are of the view that the arguments/contentions raised by the Department in the present appeal relying upon certain notifications have been exhaustively dealt with by the Tribunal in these decisions and the issue has been decided in favour of Though, the learned Departmental Representative has submitted that the decisions of Mega Corporation Ltd. (supra) and Tata Sons Ltd (supra) should not be relied upon, however, we are of the considered view that these decisions of the Tribunal have been rendered more or less on identical facts and issues and after considering the very same notifications relied upon by the learned Departmental Representative in the present case and the Tribunal has ultimately concluded that in absence of a valid notification under section 120(4)(b) the Addl. CIT cannot exercise power of an Assessing Officer. In this context, it is necessary to reproduce the observations of the Bench in the case of Tab Sons Ltd. (supra) hereunder:-. 3.11. Admission of Additional Grounds: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect very carefully. The assessee has challenged before us authority of the Officer to pass the impugned assessment order. It is bounden duty of the Revenue to establish the authority and legal competence of, its officer to pass the assessment order, as and when it is called upon to do so. No order can be sustained in the eyes of law if its author does not have requisite sanction of the law. If an Order does not possess requisite strength in the eyes of law and is void ab-initio then it will remain so even if there is acquiescence or participation by the assessee in the proceedings carried out by the AO to frame the assessment order. it is well settled law that consent of the assessee cannot confer jurisdiction to an assessing officer who lacked jurisdiction under the law. Similarly, vice versa is also true i.e. absence of consent of the assessee shall not take away jurisdiction from an Assessing Officer who actually possessed a valid jurisdiction in the eyes of law. Thus, legal competence of the officer who passed the assessment order as well as validity of the assessment order must be examined on the basis of factual analysis and provisions of law and not on the basis of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eserve to be an admitted and therefore, these are admitted for our adjudication. 3.17. Since the additional grounds go to the root of the matter and challenge jurisdictional validity of the order, therefore, we find it appropriate to first deal with the same before deciding the appeal on merits. It has been argued at length by the Ld. Senior Counsel of the assessee that in this case first notice of assessment proceedings intimating change of jurisdiction was issued by ACIT circle 2(3) Mumbai, dated 5th September 2001 wherein it was claimed that the jurisdiction of assessment was with the said officer. Subsequently, notice u/s 143(2) was issued by the DCIT dated 01.12.2003. Thereafter a questionnaire was issued by the Additional Commissioner of Income Tax Range -2(3), Mumbai dated 10th February 2004 and finally the Additional Commissioner of Income Tax framed the assessment order. He took us through the various provisions of Income Tax Act to impress upon the point that Additional Commissioner of Income tax was not legally competent to act as Assessing Officer and to pass assessment orders. He referred to provisions of section2(7A) which provide definition of the term 'Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Ld. CIT-DR fairly submitted that he was not able to t any Order from the board or Chief Commissioner of Tax or Jurisdictional Commissioner of Income Tax authorizing the present Additional Commissioner of Income Tax to act as an Assessing Officer and to pass assessment order. But, he maintained that even without and such specific order, the Additional Commissioner was legally competent to pass the impugned assessment order. 3.19. In rejoinder, Ld. Senior Counsel of the assessee again took us through all the previous order sheet entries recorded by the bench on earlier dates wherein bench had repeatedly directed and had given opportunity to the department to produce if there Wd5 any order authorizing the Additional Commissioner of Income Tax to pass impugned assessment order, It was further submitted by him that assessee is not challenging territorial jurisdiction of the assessee; but the assessee is challenging legal competence of the officer to pass the impugned Assessment order and it can be done at any stage. Under these circumstances, the restriction provided u/s 124 was not applicable. If the legal competence of the officer is challenged, then it is for the Revenue to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order. Subsequently, a notice u/s 143(2) was issued by DCIT Cir. 2(3) dated 01. 12.2003 who was indeed successor to the first officer. Subsequently, assessee received a questionnaire dated 10th December, 2004 from the Additional CIT range 2(3) Mumbai. Apparently, Additional Commissioner of Income Tax was not successor. of ACIT/DC1T 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 issue raised by the assessee before us is that in this case assessment proceedings were initiated by the Assistant Commissioner of Income Tax but were taken over in the middle of the proceedings by the Additional Commissioner of Income Tax and completed by him without there being any valid transfer of jurisdiction from the Assistant Commissioner of Income Tax to the Additional Commissioner of Income tax, as required under section 127 of the Income Tax Act. In this regard, Ld. CIT-DR was of the view that the Additional Commissioner of Income tax and Assistant Commissioner of Income tax have concurrent ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation Ltd. Vs. Additional CIT, 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 content/on 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 in 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 of this appeal within the restricted directions of the Hon'ble ITAT. He has held that, "in my considered Opinion, since both Addl. CIT Range-6 and DCIT Circle-6(1) works as subordinate officer to the same CIT and the CIT having entire territorial jurisdiction, the passing of assessment order by the Addl. CIT after issue of notice u/s 143(2) by the DCIT Circle 6(1) does not affect the taxability of the appellant or appellant is not adversely affected by the order" The Hon'ble . Delhi High Court in the above context in the case of Valvoline Cummins Ltd. (supra) has held as under; "28. On the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(5) of the Act. We are of the opinion that this was not permissible in law." 9.1 We therefore hold that applying the above judicial position that assessment has to be completed by the authority who has initiated the proceedings for making assessment and any other authority can take over the proceedings only after a proper order of transfer u/s 127(1) or 12 7(2) of the proceedings. The revenue has not brought any order for transfer of the proceedings from DCIT, Circle-6(1), New Delhi to the Additional CIT, Range-6, New Delhi and therefore it is quite evident that the Additional CIT, Range-6 took over the assessment proceedings without there being an order u/s 127(1). In the case of Prachi Leathers Pvt. Ltd. (supra), it has been held as under: 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act, and the 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 f the powers and functions conferred on, 'or assigned to, an Assessing Officer under this Act." Subsequently, the word 'Additional Commissioner' was also added in the said definition by Finance Act, 2007, with retrospective effect from day 01.06.1994. Thus, from the above, it is clear that when the impugned assessment order was passed, definition of the word 'Assessing Officer' did not include 'Additional Commissioner of Income Tax. It is further noted that section 2(28C) defines Joint Commissioner. Section 2(28C) was available on sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Despite numerous directions, the Revenue was not able 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 the aforesaid section and therefore, it was not possible for the Chief Commissioner or the Commissioner to have authorized an Additional Commissioner for exercising powers and functions of an Assessing Officer for a particular assessee or classes of assessee. Even otherwise, no order could be shown to us, whereby any such authority was given to the Joint Commissioner of the Range. Under these circumstances, we find that the Revenue is not able to show any order or notification in favour of the Additional Commissioner authorizing him for performing the powers and functions of the Assessing Officer of the assessee. 3.27. During the course of hearing, Ld. CIT-DR had drawn our attention upon Board's Notification No.267/2001 dated 17-9-2001, Notification No.228 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 referred to in this notification to issue the orders in writing for the exercise of the powers and performance of the functions of C the Joint Commissioners of Income tax, who are subordinate to them, in respect of such cases or classes of cases specified in the corresponding entries in column(6) of the Schedule-I and Schedule -II of such persons or classes of persons specified in the corresponding entries in column(5) of the said Schedules, in such territorial areas specified in the corresponding entries in column (4) of the said Schedules, and in respect all of incomes or classes of income. ..(d) authorises the Joint Commissioner of Income Tax referred to in clause (c) of this notification, to issue orders in witing for the exercise of the powers and performance of functions by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 120(4)(b) of the Act to exercise or perform all or any of the powers and functions of Assessing Officer under the Act. To examine the above contention, we consider it inappropriate to firstly extract section 2(7A) of the Act which s as under: 2(7A) Assessing Officers 2(7A) "Assessing Officer" means the Assistant Commissioner 2 Deputy Commissioner 3 or Assistant Director 4 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 (l)or sub-section (2) of Section 120 or any other provision of this Act, and the [Additional Commissioner or]6 7[Additional Director or]7 5 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 onf or assigned to, an Assessing Officer under this Act; " 5.2 A plain reading of the aforesaid provision would show that it is in two parts. The first part provides that Assessing Officer means the "Assistant Commissioner" or "Deputy Commissioner" or "Assistant Director" or "Deputy Director" or "Income Tax Officer" who is vested with the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 spec/fled 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, reference 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. 54 The position which emerges thus is that an Additional under the Act. He can perform the functions and, exercise the powers of an Assessing Officer only if he is specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 him This view of ours is fully supported by the decision of the Hon'ble Delhi High Court in t case of Dr. Nalini Mahajan vs DIE 257 ITR 123,wherein the Hon'ble High Court, while discussing the powers of Additional Director Investigation, held as under: It is now well-settled that when a power is given to do a certain thing in a certain manner, the same must be done in that manner or not at alt A delegation of power is essentially a legislative function. Such a power of delegation must be provided by the statute. The director himself for certain matters is the delegating authority. He, unless the statute expressly states; cannot sub-delegate his power to any other authority. In any event, if an authority, which had no jurisdiction to issue such an authorization, did so, the same would be liable to be quashed as ultra vires. Thus, unless and until an amendment is carried out, by reason of the redesignation itself, read with the provisions of the General Clauses Act, the Addl. Director does not get any statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome tax and, therefore, no separate order under Section 127 was required W be passed by the Commissioner of Income tax. However, no such order of the Commissioner of income tax conferring the concurrent jurisdiction to the Addl. Commissioner of Income Tax over the cases of the Income tax officer is either available on assessment record, or was produced by the revenue. Thus, in absence of any such order, it can't be established that said assessment order passed was within the jurisdiction of the Addl. Commissioner of Income Tax. Thus, the assessment completed by Additional Commissioner of Income Tax in the case being without jurisdiction is void ab initio. Accordingly, the ground of appeal of the assessee is allowed. 3.37. In the case of Bindal Apparels Ltd vs. ACIT, Delhi Bench of ITAT took a similar view and held that in view of definition of Assessing Officer contained u/s 2(7A), an Additional Commissioner cannot be an authority to exercise and perform all or any of the powers of the functions of the Assessing Officer to make assessment of Income. The Bench analysed the provisions of Sect/on 2(7A) as it existed prior to amendment made by Finance Act, 2007. 3.38. During th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be of that authority.. Where a statute, requires something to be done in a particular manner, it has to be done in that manner only............ 3.40. Thug, in view of the legal discuss/op made above and facts of the case, it is clear that impugned assessment order has been passed without authority of law in as much as Revenue has not been able to demonstrate that the Additional Commissioner of Income tax who had passed the assessment order had valid authority to perform and exercise the powers and functions of an Assessing Officer of the assessee and to pass the impugned assessment order. Under these circumstances, we have no other option but to hold the same as nullity and, therefore, the impugned assessment order is quashed having been passed without authority of law, 16. The ratio laid down in the decision of Tata Sons Ltd (supra) and other decisions relied upon by the Bench therein, clearly applies to the facts of the present case. Therefore, adhering to the, principle of judicial discipline we follow the decisions of the Tribunal referred to the above and hold that in the facts of the present case, the Addl. CIT in the absence of a valid order under section 120(4)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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