TMI Blog2021 (9) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 as per the provisions of Section 144C(1) and the assessee has also filed his objections to the variation with ld. DRP on 29.04.2014 in accordance with the Section 144C(2). The ld. DRP vide order dated 31.12.2014 has issued directions in accordance with the provisions of Section 144C(6). Subsequently, the assessee upon the receipt of the directions issued under sub-section (5) has completed the assessment on 08.01.2015. Thus, on going through the entire provisions of the law, the judgments quoted, the orders of the Tribunal, the procedure followed by the assessee, TPO, ld. DRP and the Assessing Officer has been found to be correct as per the provisions of the Act inserted by the Finance (No.2) Act, 2009, hence, the additional grounds filed on 8.7.2021 with regard to non-applicability of provisions Section 144C are hereby dismissed. Jurisdiction of JCIT, Hisar Range - As argued that the Joint Commissioner is not competent to pass the order under the provisions of Section 143(3) - HELD THAT:- Board may assign the power to any Income Tax Authority to exercise powers of the A.O. having regard to territorial area etc., or the Board may authorise or empower Pr. Director General, Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction legally and validly, therefore, the impugned assessment order framed by him is vitiated and illegal and without jurisdiction. In view of the above discussion, we set aside the order of the authorities below and quash the impugned order. - ITA No. 619/Del/2015 - - - Dated:- 17-9-2021 - Ms. Suchitra Kamble, Judicial Member And Dr. B. R. R. Kumar, Accountant Member For the Assessee : Sh. Salil Kapoor, Adv. For the Revenue : Sh. Surenderpal, CIT DR. ORDER Per Dr. B. R. R. Kumar, Accountant Member : The present appeal has been filed by the assessee against the order dated 08.01.2015 passed by the AO u/s 144C r.w.s. 143(3) of the Income Tax Act, 1961. 2. M/s Jindal Steel Power Ltd. is a Public Limited Company and engaged in the business of manufacturing and sale of Steel, sponge iron, ferro chrome, pig iron parallel flange beams/columns, rails and power generation. 3. The assessee filed its return of income with the Deputy Commissioner of Income Tax, Hisar. The return was filed on 30.09.2010 declaring an income of Rs. 864,20,38,306/-. Thereafter, the assessee has filed revised return on 31/3/2011 revising the total income to Rs.860,8, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Commissioner and the assessment being time barred owing to wrong application of provisions u/s 144C. For the sake of ready reference, the additional grounds filed by the assessee are reproduced as under: 8. Admission of the additional grounds has been opposed in principle by the ld. DR. He argued that the assessee having availed the beneficial provision of pre-adjudication of the Assessment Order by the way of ld. DRP as provided u/s 144C cannot raise the issue in the form of any additional grounds at the juncture. The ld. AR argued that the additional grounds being legal in nature can be raised at any point of time. Keeping in view, the judgment of the Hon ble Apex Court in the case of National Thermal Power Co. Ltd. Vs CIT (1998) 229 ITR 383, the additional ground filed by the assessee is admitted. The relevant portion of the judgment is as under: 5. Under Section 254 of the Income-tax Act, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Incometax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T, v. Anand Prasad (Delhi), C.I.T. v. KaramchandPremchand P. Ltd. and C.I.T. v. Cellulose Products of India Ltd. . Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 8. The reframed question, therefore, is answered in the affirmative, i.e., the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. We remand the proceedings to the Tribunal for consideration of the new grounds raised by the assessee on the merits. 9. At the time of hearing, the Ld. AR submitted that the additional grounds filed on 8th July, 2021 with regard to the provisions of Section 144C may be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see are not valid and not as per the law established. The ld. DR argued that the procedure mentioned under Reference to Dispute Resolution Panel is sacrosanct and non negotiable. It was held that non-adherence to the mandatory requirement u/s 144C would nullify the assessment order. It was argued that the revenue authorities as well as the assessee have at the outset rightly followed the provisions of reference to ld. DRP as enunciated u/s 144C. 11. Heard the arguments of both the parties and perused the material available on record. The Ld. AR relied upon the decision of the Hon ble Madras High Court in case of Vedanta Ltd. (Supra) wherein the writ petition was filed by the assessee in respect of Assessment Year 2007-08. The decision of the Hon ble Madras High Court is dated 22nd October, 2019 which is now before us. The Moot questions in this appeal before the Tribunal is that whether Assessment Year 2010-11 come under the purview of Section 144C or not and whether the assessment passed was bad in law, void-ab-initio and barred by limitation. To begin with, we will find that the provisions of Section 144C which was inserted by the Finance (No.2) Act, 2009, with retrospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the entire scheme of ld. DRP is being examined. 13. Section 144C envisages a change of forum and it leads to complete cessation of the jurisdiction of the Assessing Officer on passing of the draft order. Thereafter the Assessing Officer is to give effect to either the direction of the Dispute Resolution Panel or pass an order on acceptance by the assessee. The provisions of Section 144C reads as under: 144C. (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,- (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with,- (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, the point shall be decided according to the opinion of the majority of the members. (10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary Contained in section 153 or section 153B, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptance by the Assessee. 16. It is the settled position of law that when a power is given to do certain thing in a certain way, the thing must be done in that way but not any other methods. 17. Thus, it is the settled position of law that failure to adhere to the mandatory procedure prescribed under Section 144C of the Act would vitiate the entire proceedings hence the adjudication by the ld. DRP against the reference filed by the assessee in the instant case cannot be held to be invalid. 18. The Finance (No.2) Act, 2009, has given a beneficial legislation for the assessee who can speed up their tax disputes for which the assessee has to avail the provisions, the assessee cannot contest that the order passed in conclusion be bad in law or void ab-initio or barred by limitation. In-fact, the assessee s contentions before the assessment proceedings were properly taken into account and there was no procedural lapse pointed out by the assessee or Ld. AR as prescribed u/s 144C as well as there was no lapse on substantive basis, as the assessee has availed the remedy prescribed under the Section before the Revenue Authorities. To clarify further, the Finance Act clearly mentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, submitted that JCIT, Range Hisar, Hisar has no jurisdiction to pass the present assessment order. Therefore, it is nullity which is not curable under the Law. The entire assessment order is, therefore, liable to be set aside and quashed for lack of jurisdiction of the A.O. 21. Controverting these arguments, the ld. DR submitted that the Assessment Order passed dated 08.01.2015 for the A.Y. 2010-11 by the Joint Commissioner of Income Tax is valid order as it has been passed by the Competent Authority. The Ld. D.R. submitted that in terms of Section 124(3) jurisdiction of an A.O. cannot be called in question by the assessee after the expiry of one month from the date on which he was served with the notice, which in this case assessee has not raised any objection. The Ld. D.R. in support of the above proposition relied upon the following decisions: Mr. Abhishek Jain vs. ITO 94 taxmann.com 355 (HC) CIT vs. S.S. Ahluwalia 46 taxmann.com 169 22. Further, it was argued that the CIT, Hisar vide order dated 29.07.2013 had issued order u/s 120 of the Income Tax Act, 1961 assigning the case to the Joint Commissioner. The ld. DR submitted the written reply received from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e JCIT is legal and as per provision of law. The copy of CIT's Order and other details are also enclosed herewith for ready reference. 5. In view of the above the additional ground raised by the assessee regarding jurisdiction and legality of assessment order is liable to be rejected. Sd/- (P.K. Sharma) Joint Commissioner of Income Tax, Hisar Range, Hisar F. No. CIT/HSR/Tech./127/2013-14/2591-95 Office of the Commissioner of Income Tax, Aayakar Bhawan, Sector-14, Hisar - 125 001 (Haryana.) Dated: 29.07.2013. ORDER: In exercise of powers conferred by sub section (1), (2) and (5) of Section 120 of the Income Tax Act, 1961 read with CBDT s Notification No: 251/2001 (F.No: 187/6/2001-IT(A-1) dated 23.08.2001 enabling me in this behalf, I, the Commissioner of Income Tax, Hisar hereby authorize the Assessing Officers of this Charge mentioned in Column 6 to concurrently exercise powers and function of the Assessing Officers mentioned in column 5 in respect of the cases mentioned in Column No. 3 of the table: S. No. PAN Name of the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 12 ACEPK8515A Rakesh Kedia Prop. M/s. Sumit Industries, 17, Anaj Mandi, Hisar 2011-12 ITO W-3, Hisar JCIT, Hisar Range, Hisar 13 AAEFH3083N Haryana Guar Gum and Chemicals, Hisar 2011-12 ITO W-2, Hisar JCIT, Hisar Range, Hisar 14 ACPPJ1449K Anil Jindal, A-1, Jindal Industries Ltd., Staff Colony, Model Town, Hisar 2011-12 ITOW-1, Hisar JCIT, Hisar Range, Hisar 15 AIAPG1382Q Pawan Kumar Garg, 1380, U.E.-II, Hisar 2011-12 ITO W-3, Hisar JCIT, Hisar Range, Hisar The jurisdiction in the above stated cases are transferred for the purpose of completing pending scrutiny assessments. The entries in respect of demand raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Board or any other Income-tax authority from time to time; (c) further also directs that the Assessing Officers subordinate to the -Joint Commissioners of Income-tax referred to in clause (b) shall perform their functions in respect of such territorial areas or such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases in respect of which the said Commissioners of Income-tax were performing their functions immediately before the commencement of the Government of India, Central Board of Direct Taxes Notification number 732(E) dated 31.07.2001, by virtue of the jurisdiction vested in them under notifications issued by the Board or any other Income-tax authority from time to time; (d) further also directs that the Commissioners of Income-tax specified in column (2) of the said Schedule hereto annexed, having their headquarters at the places specified in the corresponding entries in column (3) of the said Schedule, shall exercise the powers and perform the functions in respect of such cases or classes of cases of persons or classes of persons specified in the corresponding entries in column (4) of the said Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x (Central- II), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 6 Commissioner of Incometax (Central- Ill), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 7 Commissioner of Incometax (Central- IV), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 8 Commissioner of Incometax (Central), Cochin Cochin All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 9 Commissioner of Incometax (Central-I), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 10 Commissioner of Incometax (Central- II), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Incometax (Central), Bangalore Bangalore All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 23 Commissioner of Incometax (Central), Kanpur Kanpur All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 24 Commissioner of Incometax (Central), Ludhiana Ludhiana All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). [Notification No. 251/2001/F. No. 187/6/2001/ITA-I] PROMILA BHARDWAJ, Director 25. Perusal of the above notification issued by the CBDT which has been relied upon and quoted in the order dated 29/07/2013 by the Ld.CIT Hisar doesn t confer any such powers to the CIT Hisar. Thus, the order dated 29.07.2013 passed by the CIT, Hisar is without any order by the CBDT u/s 120(4). 26. In the light of these facts, the legal issue of conferring the jurisdiction on the AO by the CIT is examined in detail. 27. Section 2(7A) of the I.T. Act, 1961, provides definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout prejudice to the provisions of subsections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified therein,- (a) authorise any Principal Director General or Director General or Principal Director or Director to perform such functions of any other income-tax authority as may be assigned to him by the Board; (b) empower the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal 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 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 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions or authorise any other Income Tax Authorities to issue orders in writing for exercise of powers and perform of functions by or any of other Income Tax Authorities who were subordinate to it. 32. In issuance of such directions under sub-sections (i) and (ii), the Board or any other Income Tax Authorities authorised by it may have regard to the criteria namely territorial area, person or class of persons, income or class of income and cases or class of cases. According to Section 120(4) of the I.T. Act, Board may by general or special order authorise or empower Pr. Director General or Director General or Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner to issue order in writing that the powers and functions conferred on or as the case may be assign to the A.O. by or under this Act in respect of any specified area or person or class of persons or income or class of income or case or class of cases, shall be exercised or perform by Joint Commissioner or Others and where any order is made under this clause, reference in any other provisions of this Act or in any Rules made thereunder to the A.O. shall be deemed to be reference to the Joint Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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