TMI Blog2019 (12) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... s an Assessing Officer. We further noted that although, the Revenue has filed order of the Principal Commissioner of Income-tax-17, Mumbai passed under section 120(1) and (2) of the Act, but said order is not under section 120(4)(b) of the Act. Therefore, we are of the considered view that the reassessment order passed by the Joint Commissioner of Income-tax-Range17, Mumbai is void ab initio and liable to be quashed, because, the Assessing Officer who had passed reassessment order does not had valid jurisdiction and authority to pass such order, in absence of proper order in writing under section 120(4)(b) of the Income-tax Act, 1961. Reassessment order passed by the Joint Commissioner of Income-tax, Range-17, Mumbai is void ab initio and liable to be quashed, because the Assessing Officer who had passed the assessment order does not possesses valid authority and jurisdiction to pass such order in absence of separate order under section 120(4)(b) of the Act. Case followed M/S. TATA COMMUNICATIONS LTD., (FORMERLY VIDESH SANCHAR NIGAM LTD.,) VERSUS ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-1 (3) , MUMBAI AND VICE-VERSA [ 2019 (8) TMI 1446 - ITAT MUMBAI] - Decided in favour of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax (Appeals) erred in not accepting the contention of appellant that the Department failed to furnish authenticated bank statement of the two alleged bank accounts allegedly belonging to the appellant and/or his family members, determining the alleged peak balance on its own, forcing the appellant to pay tax and interest. 5. The order of the learned Commissioner of Income-tax (Appeals) is bad in law which deserve to be set aside. 6. Your appellant craves leave, to add, to amend, to alter or delete any of the foregoing grounds of appeal and further reserves its right to file a detailed submission during the hearing of the appeal. 3. The assessee has also filed a petition for admission of additional grounds dated March 8, 2019 and taken additional grounds challenging jurisdiction of the Assessing Officer who had passed the assessment order in light of provisions of section 120(4)(b) of the Income-tax Act, 1961. The relevant additional grounds filed by the assessee are as under : 1. That the reassessment order passed dated February 23, 2015 for the assessment year 2006-07 by the Joint Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication dated March 8, 2019 challenging the jurisdiction and authority of the Assessing Officer who passed reassessment order under section 143(3) read with section 147 of the Act, is purely a legal issue which goes to the root of the matter inasmuch as the jurisdiction/authority of the Income-tax Officer who had passed the assessment order. Further, the hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (supra) had held that the assessee can raise legal issue for the first time before the appellate authorities. A similar view has been approved by the hon'ble Bombay High Court in the case of CIT v. Pruthvi Brokers and Shareholders (P.) Ltd. [2012] 349 ITR 336 (Bom). We, therefore, considering the legality of additional ground raised by the assessee and also respectfully following the decision of the hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (supra), reject objection of the learned Departmental representative and admitted additional grounds raised by the assessee for adjudicated on the merits. 7. The brief facts of the case are that the assessee is an individual engaged in the business of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y virtue of orders issued under section 120(1) or (2) or any other provisions of the Act. The authorised representative further submitted that the Joint Commissioner of Income-tax or Additional Commissioner of Income-tax can exercise or perform any of the powers and functions of the Assessing Officer, if he is directed under section 120(4)(b) of the Act. Unless, he was directed by a specific order under said section, he cannot perform any of the powers and functions of the Assessing Officer. The learned authorised representative further submitted that the Joint Commissioner of Income-tax/Additional Commissioner of Income-tax were not an Assessing Officer as per the definition of Assessing Officer under section 2(7A) until the definition was amended by the Finance Act, 2007 with retrospective effect from June 1, 1994. Further, even after the amendment, the Additional Commissioner of Income-tax/Joint Commissioner of Income-tax can exercise or perform the power of an Assessing Officer, only if he is directed under clause (b) of sub-section (4) of section 120 of the Act. Further, by virtue of amendment brought to section 2 sub-section (7A) by the Finance Act, 2007 corresponding amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Addl. CIT [2005] 3 SOT 302 (Lucknow). 3. Asst. CIT v. Tata Sons Ltd. (I. T. A. No. 2519/Mum/2009 dated March 11, 2019). 4. Dy. CIT v. Ganesh Realty and Mall Development Pvt. Ltd. (I. T. A. No. 581/Kolkata/2017 dated January 23, 2019). 5. Bansilal B. Raisoni and Sons v. Asst. CIT [2019] 260 Taxman 281 (Bom). 9. The learned Departmental representative, on the other hand, referring to the provisions of section 2 sub-section (7A), section 2 sub-sections (28C), (1C) and sections 116, 117, 118, 119, 120, 124 and 127 of the Act, and other various provisions of the Act, submitted that the term Assessing Officer would include Joint Commissioner of Income-tax after the amendment of section 2, sub-section (7A) by the Finance Act, 2007 with retrospective effect from June 1, 1994 which is evident from the notification issued by the Central Board of Direct Taxes under section 120(1) and (2) of the Act, and also the order passed by the Principal Commissioner of Income-tax-17, Mumbai under section 120(1) and (2) of the Act. The Departmental representative further submitted that the provisions of section 120(1) and (2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax or Chief Commissioner of Income-tax or Principal Commissioner of Income-tax. In this case, the Principal Commissioner of Income-tax-17 has passed an order dated November 15, 2014 under section 120(1) and (2) of the Act, and empowered the Joint Commissioner of Income-tax, Range-17(2), Mumbai to act as an Assessing Officer in respect of the assessee. Therefore, it is not correct on the part of the assessee to argue that the Assessing Officer who had passed the order does not have valid jurisdiction or authority to pass said order. The learned Departmental representative further submitted that as per section 124(3) of the Act, no person shall be entitled to call in question the jurisdiction upon the Assessing Officer after expiry of one month from the date on which he was served with a notice under section 142(1) of the Act, or section 143(2) of the Act, or after completion of the assessment whichever is earlier. In this case, the assessee has taken additional grounds challenging authority/jurisdiction of the Assessing Officer after a period of three years from the date of completion of the assessment which clearly shows that there is no reason for the assessee to take plea to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income-tax, the assessment order passed is without jurisdiction. The learned authorised representative further submitted that although the Delhi High Court has reversed the decision of Income-tax Appellate Tribunal Delhi in the case of Mega Corporation Ltd. v. Addl. CIT (supra), but the issue considered by the hon'ble Delhi High Court is altogether different, because in that case the dispute between parties is whether the Deputy Commissioner of Income-tax who had passed the assessment order is having valid jurisdiction or not. In those facts, the hon'ble court came to conclusion that when the definition of the Assessing Officer includes Deputy Commissioner of Income-tax as per section 2, sub-section (7A) of the Act, and also in view of specific order under section 120(1) and (2) of the Act, then there is no requirement of separate order under section 120(4)(b) of the Act. He further submitted that in any way the jurisdictional High Court of Bombay, in the case of Bansilal B. Raisoni and Sons v. Asst. CIT [2019] 260 Taxman 281 (Bom) had considered the issue of jurisdiction and observed that whether time limit for raising objection to jurisdiction of the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax/Additional Commissioner of Income-tax in cases of persons or clause of persons, etc. If you go through provisions of section 2(7A) in conjunction with section 120(4)(b) of the Act, then it would be very clear that unless the Joint Commissioner of Income-tax/ Additional Commissioner of Income-tax is empowered by the Principal Chief Commissioner of Income-tax/Chief Commissioner of Income-tax/Principal Commissioner of Income-tax by an order in writing to act as an Assessing Officer and perform and function such functions, then he cannot act as an Assessing Officer. 13. In this legal background, if you examine the case of the assessee, we find that the Revenue has failed to file any order passed by the Principal Chief Commissioner of Income-tax/Chief Commissioner of Income-tax/Principal Commissioner of Income-tax, under section 120(4)(b), authorising the Joint Commissioner of Income-tax to act as an Assessing Officer in the case of the assessee. We further noted that although the Revenue filed copy of the Board's general notification authorising Joint Commissioner of Income-tax/ Additional Commissioner of Income-tax to act as an Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income-tax, then such Assessing Officer should have valid jurisdiction/authority by virtue of an order passed under section 120(4)(b) of the Act. In absence of specific order under section 120(4)(b) of the Act, as well as section 127(1) of the Act, the Joint Commissioner of Income-tax cannot have valid jurisdiction and authority to perform functions and powers of an Assessing Officer, consequently the assessment order passed by the Assessing Officer is bad in law and liable to be quashed. The relevant findings of the Tribunal are as under : 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 Additional Commissioner of Income-tax, 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 the assessee's own case for the assessment year 2002-03 in TATA Sons Ltd. in I. T. A. Nos. 6981 and 7071 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 Commis sioner 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. 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 Assistant Commissioner of Income-tax or Deputy Commissioner of Income-tax or Assistant Director or Deputy 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 Director of Income-tax or Joint Director of Income-tax if directed under clause (b) of sub-section (4) of section 120, can perform powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed August 1, 2001 ; (iii) Notification No. ACIT, Range-1(3)/Jurisdiction/2001-02 dated August 8, 2001 ; and (iv) Notification No. 267 of 2001 dated September 17, 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 Additional Commissioner of Income-tax. The first notification being Notification No. 228 of 2001 dated July 31, 2001, corresponding to Notification No. S. O. 732(E) dated July 31, 2001, is a notification issued under sub-sections (1) and (2) of section 120 of the Act and obviously is not a notification issued under clause (b) of sub-section (4) of section 120. As observed earlier by us, the Additional Commissioner of Income-tax was not included as an Assessing Officer either under section 2(7A) or under section 120(4)(b) earlier. Only by virtue of the Finance Act, 2007, the aforesaid provisions were amended by including Addi tional Commissioner as an Assessing Officer. However, even after such inclusion of Additional Commissioner of Income-tax as Assess ing Officer with retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 267 of 2001 dated September 17, 2001. A perusal of the aforesaid notification, a copy of which has been placed in the Departmental paper book shows that this notification has been issued by the Board under section 120(b) directing Joint Commissioner of Income-tax/JDIT to exercise powers and functions of the Assessing Officer. It does not mention Additional Commissioner of Income-tax/Additional Director of Income-tax in any case of the matter at the time of issuance of this notification, Additional Commissioner of Income-tax was not treated as an Assessing Officer either under section 2(7A) or under section 120(4)(b) as the amendment including Additional Commissioner of Income-tax, as an Assessing Officer was brought to the statute by the Finance Act, 2007, though, with retrospective effect from April 1, 1994. Therefore, under no circumstances, the Board notification dated September 17, 2001, can be said to have conferred the jurisdiction of the Assessing Officer on Additional Commissioner of Income-tax. In this context, it is necessary to deal with the argument of the Depart ment that as per the definition of Joint Commissioner of Income-tax under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Additional Commissioner of Income-tax to exercise the powers and functions of the Assessing Officer, assessment order passed by the Additional Commissioner of Income-tax is without jurisdiction, hence, invalid. Moreover, it was held that once a proceeding has been initiated by an officer having valid jurisdiction, without any order of transfer under section 127 of the Act, the Additional Commissioner of Income-tax cannot be vested with power to function as Assessing Officer. The Tribunal negated the contention of the Department regarding exercise of concurrent juris diction by both the officers. It was held by the Bench that there is a distinction between concurrent exercise of power and joint exercise of power. The Bench held when power has been conferred upon two authorities concurrently, either one of them can exercise such 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. In fact on a careful perusal of the orders passed by the Tribunal in the case of Mega Corporation Ltd. (supra) and TATA Sons Ltd. (supra) we are of the view that the arguments/contentions raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 of records held on record. It has been, held by the hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. [1998] 229 ITR 383 (SC) as well as the other judgments as have been relied upon by the learned counsel in its petition that the assessee should be permitted to raise legal grounds at any stage, if they go to the root of the matter. 3.14. The Revenue's argument to reject the additional grounds due to acquiescence and participation of the assessee in assessment proceedings : It was contended by the learned Commissioner of Income-tax-Departmental representative that during the course of assessment proceedings, the assessee had made participation in the proceedings. Therefore, the assessee cannot he allowed to challenge jurisdictional defect in the assessment order at this stage. We have considered this aspect very carefu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before us, a challenge has been made about the legal competence of the Addi tional 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 either territorial jurisdiction or irregular exercise of jurisdiction by the Additional Commissioner of Income-tax but chal lenge was made to the authority and legal competence itself of the Additional Commissioner of Income-tax to pass the impugned assessment order upon the assessee. Similar view has been taken by the Delhi Bench of the Income-tax Appellate Tribunal in the case of Mega Corporation Ltd. v. Addl. CIT [2015] 155 ITD 1019 (Delhi-Trib) following the judgment of the hon'ble Delhi High Court in the case of Valvoline Cummins Ltd. supra. 3.16. In view of the facts and circumstances, of this case and the judgments of the hon'ble Supreme Court and the hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer only if they were so authorised specifically by their jurisdictional Commissioner. In support of his proposition, he relied upon following judgments : 1. Mega Corporation Ltd. v. Addl. CIT [2015] 62 taxmann.com 351 (Delhi-ITAT) 2. Bindal Apparels Ltd. v. Asst. CIT [2006] 104 TTJ 950 (Delhi) 3. City Garden v. ITO [2012] 21 taxmann.com 373 (Jodhpur-ITAT) 4. Microfin Securities (P.) Ltd. v. Addl. CIT [2005] 3 SOT 302 (Lucknow) 5. Prachi Leathers Ltd. (I. T. A. No. 744/Luk/2004 order dated March 29, 2010) 6. Harvinder Singh Jaggi v. Asst. CIT [2016] 67 taxmann.com 109 (Delhi-ITAT) 7. Dr. Nalini Mahajan v. DIT (Inv.) [2002] 257 ITR 123 (Delhi) 8. Ghanshyam K. Khabrani v. Asst. CIT [2012] 346 ITR 443 (Bom) 9. CIT v. SPL's Siddhartha Ltd. [2012] 345 ITR 223 (Delhi). 3.18. Per contra, learned Commissioner of Income-tax-Depart mental representative, with the assistance of learned Assessing Officer, vehemently opposed the submissions of the learned senior counsel and argued that all the Additional Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing the assessment order on the ground that the 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 Assistant Commissioner of Income-tax, Circle-2(3), Mumbai, dated September 5, 2001, intimating the assessee about change in jurisdic tion and claiming that jurisdiction 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. S. O. No. 732(E) dated July 31, 2001 of the Central Board of Direct Taxes and consequential notifi cation dated August 7, 2001 of CIT. MC-II, Mumbai, jurisdiction over your case with effect from August 1, 2001 vests with the undersigned. All I.T./W.T. and interest-tax returns and necessary correspondence on that account are therefore required to be filed with the under signed. All payments towards Income-tax (by way of advance tax, regular tax or S.A. tax), interest-tax, wealth-tax an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the Additional Commissioner of Income tax and Assistant Commissioner of Income tax have concurrent jurisdiction over the assessee. In our view, contention of the learned Commissioner of Income-tax-Depart mental representative is not valid as it is not based upon correct appreciation of the law. It appears that the Revenue has misunder stood and miss-applied the very concept of 'concurrent jurisdiction' and has ignored the distinction between the 'concurrent jurisdiction' and 'joint jurisdiction'. When we talk about assignment of 'concurrent jurisdiction' to two officers of different hierarchy, it does not mean that both the officers can simultaneously or jointly work upon the assessment proceedings of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate officer to the same Commissioner of Income-tax and the Commissioner of Income-tax having entire territorial jurisdiction, the passing of assessment order by the Additional Commissioner of Income-tax after issue of notice under section 143(2) by the Deputy Commissioner of Income-tax Circle 6(1) does not affect the taxability of the appellant or the 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 (page 110 of 307 ITR) : 28. On the issue of concurrent jurisdiction between the Additional Commissioner and the Deputy Commissioner, learned counsel for the assessee relied upon a decision of the Calcutta High Court in Berger Paints India Ltd. v. Asst. CIT [2000] 246 ITR 133 (Cal). The Calcutta High Court had explained the meaning of the expression concurrent to mean two authorities having equal powers to deal with a situation but the same work cannot be divided between them. This is what the Calcutta High Court had to say (headnote) : 'Concurrent' jurisdiction means a subordinate authority can deal with the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 under section 127(1) or 127(2) of the proceedings. The Revenue has not brought any order for transfer of the proceedings from Deputy Commissioner of Income-tax, Circle-6(1), New Delhi to the Additional Commissioner of Income-tax, Range-6, New Delhi and therefore it is quite evident that the Additional Commissioner of Income-tax, Range-6 took over the assessment proceedings without there being an order under section 127(1). In the case of Prachi Leath ers Pvt. Ltd. (supra), it has been held as under : 19. We are further of the opinion that the notice under section 143(2) of the Act having been issued by the Income-tax Officer, Range 6(2), Kanpur on August 16, 2002, it was Income-tax Officer alone who could frame the assessment subject however to the fact that that the assessment could be framed by any other officer also provided there was an order of transfer of jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (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 of 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 the Finance Act, 2007, with retro spective effect from day June 1, 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 Commis sioner of Income-tax'. It is further noted that section 2(28C) defines Joint Commissioner. Section 2(28C) was available on statute since October 1, 1998 and provide as under : 2(28C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercised by a 'Joint Commissioner'. Despite numer ous directions, the Revenue was not able bring before us any order wherein any specific authority was given by any Chief Commissioner or Commissioner authorising the impugned Additional Commissioner to pass impugned assessment order. We find force in the argument of learned 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 authorised 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 Commis sioner authorising him for performing the powers and functions of the Assessing Officer of the assessee. 3.27. During the course of hearing, learned Commissioner of Income-tax-Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 228 of 2001, supra authorise 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, authorises the Joint Commis sioners who were so authorised 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by the parties and perused the order of the learned Commissioner of Income-tax (Appeals), 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 December 29, 2008 passed by the Addi tional Commissioner of Income-tax, Range 6, New Delhi. According to the appellant/assessee, it is incumbent under the scheme of statute to vest the Additional Commissioner of Income-tax under section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions of the Assessing Officer under the Act. 5.1 To examine the above contention, we consider it inappro priate to firstly extract section 2(7A) of the Act which reads as under : 2(7A) '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 Commis sioner or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made under this clause, references in any other provision of this Act, or in any rule made thereunder 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 the 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 or incomes or classes of income or cases or classes of cases shall be exer cised 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.1 So far as the issue before us in the present appeal is concerned, it is now clear from the provisions as discussed herein before that the Additional Commissioner of Income-tax could act and exercise the powers of an Assessing Officer 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)(b) 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 may be, if at all they wanted to authorize the Additional Commissioner of Income-tax to act and perform the functions of an Assessing Officer to pass a proper order delegating such functions/ powers upon him. This view of ours is fully supported by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific order issued in pursuance of section 120(4)(b) specifically authorizing Joint Commis sioner of Income-tax to exercise the powers and perform the func tions 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 com petent to act as an Assessing Officer and pass an assessment order. 3.35. Similar view has been taken by the Lucknow Bench of the Income-tax Appellate Tribunal in the case of Microfin Securities (P.) Ltd. v. Addl. CIT [2005] 94 TTJ 767 wherein it was held that in absence of any allocation being made in favour of the 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 Income-tax Appellate Tribunal in the case of Harvinder Singh Jaggi v. Asst. CIT [2016] 157 ITD 869 (Delhi). 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 Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is a normal rule of construction that when a statute 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 statute only. 3.39 The hon'ble Bombay High Court dealt with a similar situ ation in the case of Ghanshyam K. Khabrani v. Asst. CIT [2012] 346 ITR 443 (Bom) wherein the said assessee raised an issue that requisite sanction prescribed under section 151 for reopening of an assessment was required to be obtained by the Assessing Officer from the Joint Commissioner of Income-tax whereas the same was granted by the Commissioner of Income-tax and therefore the same was nullity in the eyes of law. The Revenue took a stand that sanction was granted by an officer superior in rank and therefore, no prejudice was caused to the assessee. But the 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). S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by us, exercise of jurisdiction by the Additional Commissioner of Income-tax 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, the learned Departmental representative has relied upon certain notifications to justify the validity of the assessment order passed by the Additional Commissioner of Income-tax. As far as existence of any order under section 127(1) is concerned, the learned 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 being 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 of the learned Commissioner (Appeals). As far as the contention of the learned Departmental representative regarding maintainability of the additional ground on the plea that the assessee can only challenge the jurisdiction and issue under section 124(3) of the Act, we do not find a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x/Commissioner of Income-tax to directs that the Additional Commissioner of Income-tax or Joint Commissioner of Income-tax as the case may be shall exercise the powers and perform the functions of the Assessing Officer in respect of territorial areas or persons or classes of persons. Further, the Principal Commissioner of Income-tax, Range-17, Mumbai has passed a separate order under section 120(1) and (2) of the Act, dated November 15, 2014 by virtue of Notification No. S. O. 2752(E), dated October 22, 2014 and empowered the Additional Commissioner of Income-tax/Joint Commissioner of Income-tax, Range-17(2), Mumbai to act as an Assessing Officer in the cases of person or classes of persons as mentioned in the said notification and said order covers to alphabet of the assessee name. Therefore, when the Board has authorized the Principal Commissioner of Income-tax to authorise the Joint Commissioner of Income-tax/Additional Commissioner of Income-tax to act an Assessing Officer and also the Principal Commissioner of Income-tax has passed separate order authorizing the Joint Commissioner of Income-tax to act as an Assessing Officer to discharge the functions and powers of Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 120(4)(b) of the Act. Therefore, we are of the considered view that the reassessment order passed by the Joint Commissioner of Income-tax, Range-17, Mumbai is void ab initio and liable to be quashed. 16. Coming back to the case law relied upon by the learned Departmental representative. The learned Departmental representative relied upon the hon'ble Delhi High Court decision in the case of Pr. CIT v. Mega Corpn. Ltd. in I. T. A. No. 128 of 2016 vide order dated February 23, 2017 and submitted that the Income-tax Appellate Tribunal, while deciding the issue in the case of Tata Sons Ltd. has relied upon the decision of the Incometax Appellate Tribunal Delhi in the case of Mega Corporation Ltd. (supra), but said decision of the Income-tax Appellate Tribunal has been reversed by the hon'ble Delhi High Court and held that once an order is passed under section 120(1) and (2) by virtue of section 2(7A) of the Act, then there is no requirement of separate order under section 120(4)(b) of the Act. We find that the matter before the hon'ble Delhi High Court in the said case was whether the Deputy Commissioner of Income-tax who passed the assessment order w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tailed on the ground that such objection was raised beyond the period referred to in sub-section (3) of section 124 of the Act. Section 124 of the Act pertains to jurisdiction of Assessing Officers. Sub-sec tion (1) of section 124 lays down territorial jurisdiction of the Assess ing Officer. Sub-section (2) of section 124 provides that where the question arises under said section, as to whether an Assessing Officer has jurisdiction to assess any person, such question shall be deter mined by the authority prescribed under the said sub-section. Sub-section (3) of section 124 provides time limits for a person to call in question jurisdiction of an Assessing Officer. Clause (c) of sub-section (3) of section 124 provides that no person shall be entitled to call in question jurisdiction of an Assessing Officer where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section 153C of the Act or after the completion of the assessment, whichever is ear lier. In clear terms, the time-limit for raising objection to the juris diction of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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