TMI Blog2019 (8) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... um/2010, 1388/Mum/2008 & 2783/Mum/2010, CO No.163/Mum/2017 (ITA No.3972/Mum/2007), CO No.164/Mum/2017 (ITA No.1109/Mum/2007) - - - Dated:- 16-8-2019 - SHRI MAHAVIR SINGH, JM AND SHRI M. BALAGANESH, AM For the Assessee : Shri J.D. Mistry For the Revenue : Shri Sushil Kumar Poddar ORDER PER BENCH: ITA No.3972/Mum/2007 (A.Y. 2003-04) (Assessee Appeal) This appeal in ITA No.3972/Mum/2017 for A.Y.2003-04 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-XXI, Mumbai in appeal No.CIT(A)XXI/Addl.CIT.1(3)/IT.100/05-06 dated 04/04/2007 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 14/02/2006 by the ld. Addl. Commissioner of Income Tax, Range-1(3), Mumbai (hereinafter referred to as ld. AO). ITA No.4664/Mum/2007 (A.Y.2003-04) (Revenue Appeal) This appeal in ITA No.4664/Mum/2007 for A.Y.2003-04 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-XXI, Mumbai in appeal No.CIT(A)XXI/Addl.CIT.1(3)/IT.100/05-06 dated 04/04/2007 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as ld. AO). CO No.164/Mum/2017 (A.Y.2004-05) (Cross Objection of Revenue) This Cross Objection filed by revenue in CO No.164/Mum/2017 for A.Y.2004-05 arises out of ITA No.1109/Mum/2008, on the additional grounds raised by the assessee against the order of assessment passed u/s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 22/12/2006 by the ld. Addl. Commissioner of Income Tax, Range-1(3), Mumbai (hereinafter referred to as ld. AO). ITA No.2891/Mum/2010 (A.Y.2004-05) (Assessee Appeal) This appeal in ITA No.2891/Mum/2010 for A.Y.2004-05 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-2, Mumbai in appeal No.CIT(A)-XXI/Asst.1(3)/IT-12/09-10 (CIT(A)-2/IT/652/09-10) dated 21/01/2010 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(c) of the Income Tax Act, 1961. ITA No.2783/Mum/2010 (A.Y.2004-05) (Revenue Appeal) This appeal in ITA No.2783/Mum/2010 for A.Y.2004-05 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-2, Mumbai in appeal No.CIT(A)-XXI/Asst.1(3)/IT-12/09-10 (CIT(A)-2/IT/652/09-10) dated 21/01/2010 (ld. CIT(A) in short) in the matter of im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. CIT (ITA No. 102/Del/2014), in a case where the proceedings have been initiated by one officer and the assessment order is passed by another officer, the assessment order is bad in law and illegal and therefore the impugned assessment order in the case should be quashed. The Appellate craves leave to add to, alter, amend and/or withdraw the above Grounds of Appeal and to submit such statements, documents and papers as may be considered necessary either at or before the appeal hearing. 3.1. We find that the revenue had filed the following Cross Objections on the additional grounds raised by the assessee on this preliminary issue questioning the validity of framing of assessment by the learned Additional Commissioner of Income Tax as under:- i. On the facts and circumstances of the case and in law, it is denied that the assessment order dated 14/02/2006 passed by the Addl. Commissioner of Income-tax, Range-l(S), Mumbai under section 143(3) is bad in law, illegal and / or in excess of jurisdiction. The Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained to answer the grounds raised by the assessee. vii. On the facts and circumstances of the case and in law, the additional grounds raised by the assessee are not pure questions of law '; rather they fall in the category of mixed questions of law and facts and hence the same should not be admitted by the Hon ble Tribunal. viii. The appellant craves leave to add, amend or alter any of the above grounds or to raise any new ground of objection. The appellant urges the Tribunal that the additional grounds raised by the respondent be dismissed. 3.2. We find that the ld DR filed the written submissions objecting to the admission of additional grounds raised by the assessee and also in support of cross objections preferred by the revenue. The ld DR vehemently argued opposing the admission of additional grounds submitted that prior to the tribunal, at no stage, the assessee had raised the issue relating the Additional CIT‟s Jurisdiction or lack of it, as per notifications issued u/s 120 of the Act. The ld DR submitted the issue of jurisdiction can only be raised u/s 124(3) of the Act. He submitted that the additional grounds raised by the assessee require fresh in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment and completing it. That being the case, assessee can raise such issue at any stage. Merely because assessee participated in the assessment proceedings, 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. Respectfully following the same, the objections of the revenue for admission of additional grounds raised by the assessee are rejected and additional grounds of the assessee are admitted for adjudication as it challenges the preliminary issue of validity of framing of assessment by the learned Additional Commissioner of Income Tax. 4. The brief facts are the assessee earlier known as Videsh Sanchar Nigam Ltd , is engaged in the business of providing telecommunication services. For the Asst Year 2003-04, the assessment was completed u/s 143(3) of the Act on 14.2.2006 by the Learned Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (CCIT) or Commissioner of Income Tax (CIT) to issue orders vesting the powers of Assessing Officer on the Addl CIT. The ld AR submitted that in case of assessee, there is no such notification issued by the Board u/s 120(4)(b) of the Act, by virtue of which the Addl CIT was vested with jurisdiction to act as an Assessing Officer. He submitted that in case of assessee, jurisdiction was vested with DCIT, Circle -1(3) to exercise / perform the functions of the Assessing Officer. He submitted, in exercise of power vested with him, the DCIT, Circle 1(3) had issued notice u/s 143(2) of the Act on 9.12.2004 for the year under consideration. The ld AR submitted that without any order being passed u/s 127 of the Act transferring the jurisdiction from DCIT, Circle-1(3) , the Addl CIT assumed jurisdiction unilaterally and issued notices u/s 142(1) and 143(2) of the Act on 14.9.2005 and ultimately completed the assessment u/s 143(3) of the Act on 14.2.2006. The ld AR submitted that in the absence of any order u/s 127 of the Act transferring the jurisdiction of the assessee from the DCIT, Circle -1(3) to Addl CIT , Circle -1(3) and further, there being no notification issued by the Board u/s 120 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(7A), 2(28C), 2(1c), 116(cc), 117, 118, 119, 120, 124, 127 of the Act and various other provisions of the Act emphasized that the term Assessing Officer would include Addl. CIT. He further submitted, as per section 2(28C) of the Act, the JCIT would also include Addl. CIT since Addl. CIT is an income tax authority under section 117(1) of the Act of the Act. The ld. DR submitted, the CBDT notification no.267 dated 17th September 2001, issued under section 120(4)(b) of the Act has conferred power upon the Addl. CIT to act as an Assessing Officer . In this context, the ld. DR drew our attention to the Board notification dated 17th January 2009. Further, relying upon the notification dated 1st August 2001, vide letter no.MIC/HQ 1/Jurisdiction/2001 02 submitted, the CIT in exercise of power conferred by the Board under section 120(1) and 120(2) of the Act vide notification no.732(E) dated 31st July 2001, has directed the Addl. / Jt. CIT to exercise powers and perform functions of the Assessing Officer in respect of certain classes of person of a certain territorial area. He submitted, under the said notification, the Addl. / Jt. CIT, Range 1(3), was empowered to act as an Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 127 of the Act as both the officers enjoyed concurrent jurisdiction. He submitted, instead of an order under section 127 of the Act arises only when the officer to whom the case is to be assigned does not have extant jurisdiction over the case. He submitted, since in the present case, the Addl. CIT already had jurisdiction over the assessee no transfer order under section 127 of the Act is required. The ld. DR submitted, in case of Mega Corporation Ltd. (supra) relied upon by the Tribunal in the case of Tata Sons Ltd. (supra), the Tribunal came to a conclusion without taking cognizance of the retrospective amendment made to section 2(7A) of the Act. The ld. DR submitted, in case of Mega Corporation Ltd. (supra), when the jurisdiction issue was raised for the first time before the Tribunal, the matter was set aside to the ld. CIT(A) to pass a speaking order referring to all relevant material for adjudication on jurisdiction. He submitted, the same process can be followed in case of the present assessee. In similar manner, he also distinguished the other decisions relied upon by the assessee. Finally, the ld DR submitted, the assessee has raised the jurisdiction issue at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the issue to ld. CIT(A) should not be accepted because in case of Mega Corp. ltd. (supra) both the parties had agreed for set aside. However, in the present case, since the relevant notifications relied upon by the Department are already on record, no further examination relating to existence of notifications is required, hence, matter need not be set aside to the ld. CIT(A). 6. We have heard the rival submissions which were done in an elaborate manner by both the parties before us. We have also applied our mind to the decisions cited by both the parties. The short point that arises for our consideration in this preliminary ground is whether the Addl. CIT, Range -1(3), Mumbai had the competence and jurisdiction to pass the assessment order in the case of the assessee. We find that this issue had been dealt at length by the co-ordinate bench of this tribunal in assessee‟s own case for the Asst Year 2002-03 in ITA Nos. 6981 7071 /Mum/2005 ; CO No. 40/Mum/2017 ; ITA Nos. 1108 1836 /Mum/2008 dated 30.6.2017 wherein it was held as under:- 13. We have carefully and patiently considered elaborate submissions made by bath the parties orally as well as in writing. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under this Act. 14. A plain reading of the aforesaid provision makes it clear that it is in two parts. First limb of the provision says, the Assessing Officer would include ACIT or DCJT or Asstt. Director or Dy. Director or the Income Tax Officer who is vested with the relevant jurisdiction by virtue of direction or orders issued under sub-section (1) or (2) of Section 120 or any other provision of the Act. The second limb of the provision says, the KIT or JDIT if directed under clause (b) of sub-section (4) of section 120, can perform powers and functions of an Assessing Officer. It is relevant to observe, the provisions of section 2(7A) underwent a change by virtue of amendment brought by Finance Act, 2007. As per the said amendment in the second limb of section 2(74) along with the JCIT and JDIT, Addl. CIT /Addl. DIT were also to be treated as an Assessing Officer if they were directed to act as an Assessing Officer in terms of section. 120(4)(b). This amendment brought to section 2(7A) was with retrospective effect from 1st June 1994. Corresponding to the amendment made to section 2(7A), the Finance Act, 2007, amended the provisions of section 120(4)(b), providing that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , DCIT, ADIT, DDIT, ITO, can act as an Assessing Officer if they are vested with relevant jurisdiction by virtue of directions and orders issued under sub-section (1) or sub-section (2) of section 120. Whereas, as far as Addl. CIT, Addl. DIT, JCIT, JDIT are concerned, they can exercise powers and functions of an Assessing Officer, only, if they are directed to do so under clause (b) of sub-section (4) of section 120. Thus, vesting of power of Assessing Officer on different income tax authorities have been specifically demarcated under section 120 of the Act. A conjoint reading of Section 2(7A) an Section 120 would make it clear, as far as ACIT, ADIT, DCIT, ADIT; DDIT and ITO are concerned, they have to be vested with the power of Assessing Officer under section 120(1) or (2), whereas, AddI. CIT, Addl. DIT, KIT, MIT can be vested with the power of Assessing Officer under Section 120(4)(b). In a notification issued under section 120(1) and 120(2), Addl. CIT cannot be vested with power to act as an Assessing Officer. Therefore, notification no.228 of 2001 dated 31 July 2001, cannot be said to be vesting power of Assessing Officer with the Addl. CIT. Similar is the situation with noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowering the Add!. CIT, Range-1(3), to act as an Assessing Officer in respect of present assessee. The notifications relied upon by the learned Departmental Representative are not under section 120(4)(b). As far as notification dated 17th September 2001 of the Board Is concerned, though, it is issued under section 120(4)(b) of the Act, however, it authorizes only the JCIT and JDIT to exercise the powers and function of the Assessing Officer and it is not in respect of Addl. CIT or Addl. DIT. Thus, none of these notifications can validly authorize or empower the Addl. CIT, Range-1(3) to act as an Assessing Officer in the present case. In case of Mega Corporation Ltd. vs. ACIT, [2015] 155 ITD 1019, the Tribunal while deciding identical issue of exercise of powers and functions of Assessing Officer by Addl. CIT dealt with the aforesaid notifications relied upon by the learned Departmental Representative and following the decision of the Hon'ble Delhi High Court in Valvoline Cummins v/s DCIT, [2008] 307 FUR 103 (Del) held that without a notification under section 120(4)(b) authorizing the Addl. CIT to exercise the powers and functions of the Assessing Officer, assessment order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee that law in this regard has been developed recently. Moreover, this fact was not in the knowledge of the assessee that the Additional Commissioner of Income Tax had assumed jurisdiction to frame the impugned assessment order without the authority of law and without there being any order from the Commissioner of Income Tax authorizing him to act as Assessing Officer of the assessee. Under these circumstances, it is' bounden duty of the Revenue to establish legal competence and authority of the officer passing the assessment order, if so challenged by an assessee at any stage. 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 assessment records. Thus, the legal issue raised by the assessee falls in the category of cases which can be decided on the basis of material held on record. 3.13 Further, it is noted by us that the aforesaid grounds are purely legal grounds and do not require any investigation of fresh facts and can be decided on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Assessing Officer of the assessee and to carry out the assessment proceedings and frame the assessment order in accordance with the provisions of the Income tax Act, 1961. Thus, reliance, upon the provisions contained in Section 124 of the Act would be of no help to the Revenue as the assessee has not challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an Assessment Officer as per clause (b) of sub-section 4 of section 120. It was vehemently argued that the Additional Commissioner who passed the impugned assessment order was not having any authority issued from the Board or the jurisdictional Commissioner of Income Tax to act as an Assessing Officer and to pass an assessment order in the case of the assessee. He also took us through provisions of section 120 to argue that Additional Commissioner or Joint Commissioner could have exercised the power of an Assessing Officer only if they were so authorized specifically by their jurisdictional Commissioner. In support of his proposition, he relied upon following judgments: 1. Mega Corporation v: Add!; CIT (62 taxmann.com 351 (Del. ITAT) 2. Bindal Apparels Ltd. ACIT 104 TTJ 950(Del) 3. City Garden vs. ITO (21 taxmann.com 373 (Jodhpur ITAT) 4. Micro fin Securities (P) Ltd. vs Add!. CIT i SOT 302 (Luk.) 5. Prachi Leathers Ltd. 26L/Luk/201 0 in ITA No. 744/Luk/2004 order dat. 29.03.2010 6. 1-farvinder Singh Jaggi vs. ACIT 67 Taxmann.com 109(DeL ITAT) 7. Dr. Nalini Mahafan vs. OfT (Inv.) 257 ITR 123(Del. HC) 8. Ghansh yam K. Khabrani vs. ACIT 346 IT!? 443(Bom. HC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been prescribed under the law, else it shall be deemed that the said act has never been done. He requested for quashing the assessment order on the ground that same was passed without authority of law and was void ab-initio. 3.20. We have gone through all the facts and circumstances of the case. It is noted by us that for the impugned assessment year; after the return was filed by the assessee, a notice was issued by the ACIT Cir-2(3), Mum bal, dated 5th September 2091, intimating the assessee about change in jurisdiction and Claiming that jurisdictional was with the said officer. The relevant part of the said notice is reproduced hereunder: Sub: Change in jurisdiction-Intimation regarding In terms of Notification No. SO No. 732(E) dated 31.7.2001 of Central Board of Direct Taxes and consequential Notification dated 7.8.2001 of CIT. MC-11, Mumbai, jurisdiction over your case with effect from 1.8.2001 vests with the undersigned. All IT./W.T. and Interest tax Returns and necessary correspondence on that account are therefore required to be filed with the undersigned. All payments towards Income-tax (by way of Advance tax, Regular tax or S.A. tax), Interest tax, Wealth t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncurrent jurisdiction' to two officers of different hierarchy, it does not mean char both the officers can simultaneously or jointly work upon the assessment proceedings of same assessee. But it means that both the officers are legally eligible for assignment of jurisdiction of the assessment proceedings of an assessee and, therefore, any one of these officers can be assigned the jurisdiction by the higher authority. But, exercise of the jurisdiction between both the officers shall always be mutually exclusive to each other. If the jurisdiction has been assigned to one of the officers, it shall not be exercised by the other, and lithe jurisdiction is taken away from the former officer and assigned to the latter, then it shall be exercised by the latter only and. hot by the former. Thus, the jurisdiction can be exercised by only one Assessing Officer at any given point of time who has been duly assigned the jurisdiction by. the competent authority. The assignment of jurisdiction to an officer and its transfer from one officer to the other can be made only through the prescribed process of law. Section 127 of the Act contains provisions regarding process to be followed by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with a situation -but the same work cannot be divided between Concurrent jurisdiction means a subordinate authority can deal with the matter equally with any superior authority in its entirety so that either one of such jurisdictions can be invoked. It cannot be construed as concurrent jurisdiction when one part of the assessment will be dealt with by one superior officer and the other part will be dealt with by one subordinate officer. ... ............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 imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee's case from Income-tax Officer, Range-6(2), Kanpur to that officer under section 127(4) of the Act, but so far as present case is concerned, the Revenue has not brought to our notice any order under section 127 passed after 6.8.2002 transferring jurisdiction over the assessee's case from the income-tax Officer, Range 6(2), Kanpur to .the Addl. CIT, Range-6,Kanpur and therefore, the assessment framed by the Addl CIT, Range-,Kanpur irrespective of the fact as to whether he was authorized to perform the functions of an AO or not, is illegal and void ab intio for want of jurisdiction. Consequently, we are of the opinion that the assessment order in the present case dated 31.3.2003 passed by the Addl. CIT, Range (6), Kanpur was illegal and void ab initio for want of jurisdiction. Consequently, the assessment order is quashed. 9.2 Consequently on this count also, the assessment made on 29.12.2008 by the Additional Commissioner is illegal and bad in law for want of jurisdiction. 10. for the reasons aforesaid we hold that the order of assessment dated 29.12.2008 was without jurisdiction and therefore is quashed as such. In result, ground Nos. 1 and 2 are al/owed. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Commissioner of Ihcome Tax Under subsection (1) of section 117. Thus, combined reading of all the above sections makes it clear that prior to amendment mode by Finance Act, 2007, the legislature treated 'Additional Commissioner' and 'Joint Commissioner' differently for the purposes of performing the role as an Assessing Officer, despite the fact that for all the other purposes 'Joint Commissioner' meant Additional Commissioner as well., as per section 2(25C). It is clear from the facts that by way of subsequent amendment by Finance Ad, 2007, words 'Additional Commissioner' have also been inserted along with words 'Joint commissioner', in section 2(7A) which defines the term for 'Assessment Officer' In case, the legislature would have intended and meant that for the purpose of acting as Assessing Officer, 'Joint Commissioner' and 'Additional Commissioner' means one and the same, then there was no need to come out with an amendment made by Finance Act, 2007, wherein the word 'Additional Commissioner' was also inserted in the definition of 'Assessing Officer' as contained in section 2(7A). Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act as assessing officer of the assessee and pass the impugned assessment order. 3.28. We have gone through all these Notifications, but do not find any substance in the contention of the Ld. CIT-DR. It IS noted that Notification No.335 is issued merely for assigning jurisdiction to various Commissioners and it is thus of no use to Revenue as far as issue before us is concerned. So for as Notification No.267/2001 is concerned, it reads as follows:- In exercise of the powers conferred by clause(b) of sub-section (4) of section 120 of the income -tax Act,1'9'61(43 of 1961), the Central Board of Direct Taxes, hereby directs that the Joint Commissioners of Income Tax or the Joint Directors of Income tax, shall exercise the. powers and functions of the Assessing Officers, in respect of territorial area or persons or classes of persons or incomes or classes of income or cases, or classes of cases, in respect of which such Joint Commissioners of Income tax are authorised by the Commissioner of Income tax, vide Government of India, Central Board of Direct. Taxes notification number S.O.732(E) dared 31.072001, S.O.880(E) dated 14.09.2001 S.0.881(E) dated 14.09.2001, S.O.88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid notification it becomes imperative on the part of the Revenue to show us that in the case before us, the Additional Commissioner of Income tax, who had passed the impugned assessment order, was duly authorized by the jurisdictional Commissioner to do so. It is noted that any such order would not be available with the Revenue, because even in the notifications discussed above only 'Joint Commissioners' were authorized to perform the role of the Assessing Officers. However, the Revenue is not able to bring before us any order of the Commissioner authorizing even the 1 Joint Commissioner' to perform powers and' functions ' of Assessing Officer of the assessee. As per the discussion made by us in 'detail in the earlier part of our order, it is dear that no such order is available in the assessment record or in any other record. Legal consequences of the same have been elaborately analysed m many judgments by various courts. 3.32. Identical issue came up for consideration berore Delhi Bench of Income Tax Appellate Tribunal in the case of Mega Corporation, supra. The bench discussed entire law available on this issue and held that an 'Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers and functions conferred, on or assigned to an Assessing Officer under this Act. In other words, it is manifest that Assessing officer inter-alia means Additional Commissioner who is directed under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on or assigned to an Assessing Officer under the Act. under the Act In other. Words, an Additional Commissioner can only be directed u/s 120(4)(b) of the Act to Assistant Commissioner or Deputy Commissioner or Assistant Director or deputy Director or Income Tax Officer under the Act. This interpretation also 'derives strength from the provisions contained in section 120(4)(b) of the Act which reads as under: 120.Jurisdiction of income-tax authorities (4) Without prejudice to the provisions of sub-sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,- (b) 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, the Assessing Officer by or under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing the decision of Hon'ble Delhi High Court in the case of Nalini Mahajan Vs. DIT 257 ITR 123 (Delhi). It is also noted Is decision has also been considered by Delhi Bench in the of Mega Corporations Ltd, supra and relevant portion of the order as discussed therein is reproduced below: - 16.2 From the contents of. the aforesaid provisions, it is quite clear that so far as Addl. Commissioner is concerned firstly he has been included in the definition of Assessing Officer given under section 2(7A) of the Act with effect from 1.6.1994 as a result of retrospective amendment made by the Finance Act, 2007 but at the same time, it/s also clear that the Add/. Commissioner will be Assessing Officer as envisaged in section 2(7A) so amended only if he is directed under clause (b)of cub-section (4) of section 120 to exercise or perform all or any of the powers and functions concerned on or assigned to an Assessing Officer; meaning thereby that the Addl. CIT can function or can exercise the powers and perform the functions of an Assessing Officer if he is empowered by the CBDT as required under clause (b) of sub-section (4) of section 120. 18.1 So far as the issue before us in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of Additional CIT but the proposition of law laid down by the Hon'ble High Court which was, though in relation S to powers of Additional Director (Investigation), is fully applicable to the present 18.3 In view of the aforesaid facts, circumstances and the discussion and following the law laid down by the Hon'ble De/hi High Court in the case of Dr. Na/ii Mahajan (supra), first of all we are of the opinion that the Addl. CIT, Range-6, Kanpur having not been empowered to exercise or perform the powers or functions of an Assessing Officer, the assessment framed by him was illegal and void ab initio. ..... 3.34. It is further noted that similar view has been expressed by Jodhpur Bench of ETA in the case City Garden Vs. ITO 21 taxman.com 373 (Jodhpur) wherein it has been held that in the absence of a specific order issued in pursuance to Section 120(4)(b) specifically authorizing Joint Commissioner of Income Tax to exercise the powers and perform the function as conferred on or 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. Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning given by the Ld. CIT-DR to defend the impugned assessment order does not have any legal force. It is well settled that jurisdictional conditions required to be fulfilled by the assessing officer must be performed strictly in the manner as have been as prescribed and if it has not been done in the manner under the law. then it becomes nullity in the eyes Hon'ble Supreme Court in the case of CIT Vs. M. H. Ghaswala observed that it is a normal rule of construction that when a statue vests certain powers in an authority to be exercised in a particular manner, then that authority is bound to exercise it only in the manner provided in the statue only. 3.39 Hon ble Bombay High court dealt with a similar situation in the case of Ghansham K.Khabrani Vs. ACIT 346 ITR 443 wherein the said assessee raised an issue that requisite sanction prescribed u/s 151 for reopening of an assessment 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 mat sanction was granted by an officer superior in rank and therefore, no prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned Departmental Representative to restore the matter back to the file of the learned Commissioner (Appeals) for adjudicating the jurisdictional issue. 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, n 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 existence of any order under section 127(1) is concerned, the learned Dlearned Departmental Representative has fairly submitted that no such order exist on record. At least, nothing was brought to our notice in spite of specific query bang raised by the Bench. Therefore, when the issues are to be decided on the basis of facts already available on record and keeping in view the relevant notifications placed on record as well as the decisions cited, there is no necessity of restoring the matter back to the file o the learned Commissioner (Appeals). As far as the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal By Appeal against Assessment u/s. Result 1. ITA No. 3972/Mum/2007 2003-04 Assessee Appeal Appeal against assessment u/s 143(3) Allowed 2. ITA No. 4664/Mum/2007 2003-04 Revenue Appeal Appeal against assessment u/s 143(3) Dismissed 3. CO No. 163/Mum/2017 2003-04 Revenue Cross Objections Appeal against assessment u/s 143(3) for additional grounds raised by assessee Dismissed 4. ITA No. 1015/Mum/2010 2003-04 Assessee Appeal Appeal against Penalty u/s 271(1)(c ) Allowed ..... 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