TMI Blog2022 (8) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 127 empowers such Officer to transfer a case under subsection (1) or (2) at any stage of the proceedings and any such transfer shall not render necessary reissuance of any notice already issued by the Assessing Officer from whom the case is transferred. The provisions of sub-section (4) of section 127 will be applicable only when there is an order under section 127 of the Act. Since the Department was not able to show any order passed under section 127 of the Act, this argument of the ld. Counsel for the assessee is also accepted. Grounds no. 1 to 3 taken by the assessee are allowed. As such, the assessment order is held to be void ab initio and is quashed. Nothing further thus survives for decision and the rest of the Grounds are rejected as infructuous. - ITA No.110/LKW/2022 - - - Dated:- 21-7-2022 - Shri. A. D. Jain, Vice President For the Appellant : Shri P. K. Kapoor, C.A. For the Respondent : Shri Harish Gidwani D.R. ORDER This is assessee s appeal against the order of the ld. CIT(A), NFAC, Delhi, dated 15.3.2022, for Assessment Year 2017- 18, raising the following grounds of appeal: 1. BECAUSE no notice u/s 143(2) of the Act was issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in law the Id. CIT(A) has erred in confirming the unlawful addition of Rs.27,01,500/- by mis-reading/misinterpreting the cited precedents which squarely supported the appellant's case. 8. BECAUSE looking to the facts and circumstances of the case, the provisions of section 69A of the Act did not get attracted in the present case and consequently the id. CIT(A) ought to have deleted the addition of Rs.27,01,500/-made by the Assessing Officer. 9 BECAUSE the order passed by id. CIT(A) is based on presumption, surmises and conjectures and has been passed wholly in an arbitrary manner, 10. BECAUSE the impugned order has been passed in complete violation of principles of natural justice and without affording due and effective opportunity of being heard to the appellant. 11. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice. 12. BECAUSE on the facts and in the circumstances of the case, the impugned order is liable to be set-aside and quashed. 2. The brief facts of the case are that the assessee e-filed its return of income on 23.3.2018 for the Assessment Year 2017- 18 showing an income of Rs.11,92, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department cannot take the benefit of the provisions of section 127(4) of the Act. 5. The ld. D.R., on the other hand, has heavily placed reliance on the orders of the authorities below and it was submitted that now the procedure is that Range is set up and under that Range any Assessing Officer can issue notice under section 143(2) and any other Assessing Officer falling under that Range can pass the assessment order; and that since both the Assessing Officers fall under the same Range, therefore, there is a concurrent jurisdiction and hence this argument of the assessee is not tenable and is required to be dismissed. 6. The ld. Counsel for the assessee, in rejoinder, has submitted that even if the arguments of the ld. D.R. are accepted that there is a concurrent jurisdiction, even then within that Range, the same Assessing Officer needs to complete the assessment, who had issued notice under section 143(2) of the Act and in this regard reliance has been placed on the judgment of the Hon'ble Delhi High Court in the case of Valvoline Cummins Ltd. vs. Dy. CIT , 307 ITR 103 (Del) and my attention was invited to the relevant findings of the Hon'ble Court in paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem 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 has been further held that 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. The relevant findings of the Hon'ble Delhi High Court, as contained in paragraphs 28 to 30 of the order, are reproduced below: 28. On the issue of concurrent jurisdiction between the Addl. CIT and the Dy. CIT, learned counsel for the assessee relied upon a decision of the Calcutta High Court in Berger Paints India Ltd. Ors. vs. Asstt. CIT Ors. (2000) 164 CTR (Cal) 637 : (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 : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans that the Assessing Officer who issued the notice under section 143(2) did not complete the assessment and, therefore, the argument with regard to concurrent jurisdiction is not tenable. As a natural corollary, therefore, the order passed by the Assessing Officer is also not tenable in view of the fact that the notice under section 143(2) was issued by one Assessing Officer and the assessment has been completed by another Assessing Officer. The Lucknow Bench of the Tribunal, in the case of Bajrang Bali Industries vs. ACIT in I.T.A. No.724/Lkw/2017, on this issue, has held as under: 5. We have heard the rival parties and have gone through the material placed on record. It is undisputed fact that the assessment order dated 11.03.2016 has been passed by DCIT-2, Kanpur who had issued notice u/s 143(2) on 07.09.2015. The provisions relating to time limit for issue of statutory notice u/s 143(2) are contained in the provisions to Section 143(2) itself which provides that no notice under this section shall be served on the assessee after the expiry of six months from the end of financial year in which the return is furnished. 6. In the present case, the return of income was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax (Appeals) [hereinafter referred to as the CIT(A) ] but he rejected this ground vide order dated 29.12.2011 observing that said objection ought to have been taken before Assessing Officer itself. In further appeal before Income Tax Appellate Tribunal, Lucknow Bench 'B', Lucknow (hereinafter referred to as the Tribunal ) it has allowed Assessee's appeal vide judgment and order dated 28.11.2014, hence this appeal under Section 260A of Income Tax Act, 1961 (hereinafter referred to as the Act, 1961 ), challenging aforesaid order of Tribunal. 3. Learned counsel appearing for Revenue sought to argue that objection regarding jurisdiction ought to have been taken at the first instance, i.e., before Assessing Officer and once it was not taken, assessment order cannot be challenged. 4. However, he could not dispute that lack of jurisdiction in such case is not a mere irregularity and if that be so, if an authority has no jurisdiction in the matter, same cannot be conferred even by consent of parties. Something which is wholly without jurisdiction, that is nullity in the eyes of law, no principle of law would come to confer any kind of effectiveness to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been taken in U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd., AIR 1996 SC 1373. 11. In S. Sethuraman Vs. R. Venkataraman and Ors. AIR 2007 SC 2499, Apex Court observed that if jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The above authority has been referred to and relied on by Apex Court recently in Collector, Distt. Gwalior and another Vs. Cine Exhibitors P. Ltd. and another AIR 2012 SC 1239. 12. Hence, the mere fact that objection was not taken before Assessing Officer will not make the order of assessment final as it has been passed by competent authority. In our view Tribunal has rightly upheld the order of CIT(A). 11. Similar are the findings in the case of Pr. CIT-II Lucknow vs. Mohd. Rizwan in Income Tax Appeal No. 100 of 2015 where, the Hon'ble jurisdictional Allahabad High Court has decided the issue in favour of the assessee. 12. The other argument of the ld. Counsel for the assessee was that no order was passed under section 127 of the Act for transfer of the case from one Assessing Officer to another Assessing Officer and, therefore, the Department cannot take be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place. (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. 13. The analysis of above provisions, as contained in section 127(1), demonstrates that the Principal Director General/ Principal Chief Commissioner or Chief Commissioner or Commissioner, may, after recording his reason for doing so, transfer any case from one or more Assessing Officers to another Assessing Officers subordinate to them. Sub section (4) of Section 127 empowers such Officer to transfer a case under subsecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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