TMI Blog2022 (11) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... e. As a matter of record the assertions in the writ petition about the above referred notice dated 02.03.2021 issued by the office of the Principal Commissioner of Income Tax, Mumbai remain unquestioned and was not adverted to in the counter affidavit filed for the respondents. The above facts do indicate that at some point of time the revenue was conscious of statutory position as to which was the competent authority to transfer a case in terms of Section 127 of Income Tax. Yet, the action of transfer was taken up and achieved by the authorities of respondent No.1 which is not provided under law. This action on the part of the authorities of Respondent No.1 can be called as arbitrary as it was done in violation of the mandate in Section 127 of Income Tax Act. Article 14 of the Constitution of India provides for equal protection of laws and in the case at hand the acts of the authorities of Respondent No.1 which are based on Order dated 16.02.2021 by the learned Principal Commissioner of Income Tax, Vijayawada stand against that constitutional mandate. The upshot of the above discussion would indicate that the Order of transfer of case under Section 127 was without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 (1)(3) at Mumbai. His main source of income is from investments under other income heads and claims to have never been involved in any business. An immovable property at Lancherster Road, Guntur City of Andhra Pradesh is his ancestral property in which he had 1/6th share. He along with his family members/Sharma Group sold their respective shares in that property under a registered sale deed dated 24.07.2012 in which the petitioner, towards his share, got the sale consideration of Rs.2,10,00,000/-. The purchaser of the property was M/s. Bharathi Castles Private Limited represented by its Director Sri Polisetty Somasundaram of Guntur City. While so, on 28.01.2020 at Guntur, a search and seizure operation was conducted by the Income Tax Authorities against M/s. Polisetty Somasundaram Group in terms of Section 132 of Income Tax Act 1961. During that search and seizure operation a pen-drive was recovered and copies of its contents were recovered. The Income Tax Authorities found various unaccounted cash transactions between M/s.Polisetty Somasundaram Group and this writ petitioner. According to the authorities that material includes cash receipts of the financial year 2012 to 2013 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act passed by the Principle Income Tax Officer, Vijayawada dated 16.02.2021 granted jurisdiction to DCIT, Central Circle-1, Guntur and therefore the scrutiny proceedings are valid. As against the Order of assessment an appeal lies to the Commissioner of Income Tax (Appeals) but the petitioner without availing that remedy by way of appeal approached this court and therefore this Writ petition is not maintainable. 08. The subsidiary contentions of the writ petitioner are that he had no nexus with M/s.Polisetty Somasundaram Group and there were no cash transaction and the respondents authority did not provide to him the so called seized documents or material so as to enable him to furnish appropriate reply. That the notices issued by the respondent authority are contrary to each other since at one breath they alleged that this writ petitioner paid cash to M/s.Polisetty Somasundaram but at another breath they claim that this writ petitioner received cash from M/s.Polisetty Somasundaram group. That the notices did not disclose the material. Learned counsel for the writ petitioner submits that appropriate opportunities of hearing was never given to him and the principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup on 28.01.2020 during the course of said search and seizure proceedings conducted at Guntur. It was then, Respondent No.1 initiated proceedings under Section 153C of the Income Tax Act. By then the writ petitioner was not within the jurisdiction of Respondent No.1 and he was an assessee at Mumbai. For convenience, Section 153C of the Income Tax Act is extracted here: 153C. Assessment of income of any other person- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Officer is satisfied that- (a) any money, bullion, jewellery or other valuable article or thing, seized or requisitioned, belongs to; or (b) any books of account or documents, seized or requisitioned, pertains or pertain to, or any information contained therein, relates to, a person other than the person referred to in section 153A, then, the books of account or documents or assets, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue notice and assess or reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A. (3) Nothing contained in this section shall apply in relation to a search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of April, 2021. Thus the operating field of Section 153C of Income Tax Act is that where during the course of search if any material is found pertaining to a person other than the persons searched, the Assessing Officer who found such material is ordained to hand over the material to that Assessing Officer who holds the jurisdiction over such other person and thereafter the other Assessing Officer shall proceed against such other person and issue notices to such other person and assess or re-assess the income of such other person in accordance with provisions of Section 153(A) of the Income Tax Act, 1961. Explaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer of the searched person, he may transmit the records/documents/things/papers, etc. to the assessing officer having jurisdiction over such other person. After receipt of the aforesaid satisfaction and upon examination of such other documents relating to such other person, the jurisdictional assessing officer may proceed to issue a notice for the purpose of completion of the assessment under Section 158-BD of the Act and the other provisions of Chapter XIV-B shall apply. In the case at hand, the notice under Section 153C of the Income Tax Act 1961 having DIN and Notice No. ITBA/AST/S/153C/2021-22/1039508432(1) dated 08.02.2022 for the assessment year 2013-2014 and for subsequent assessment years were issued by Respondent No.1 calling upon the writ petitioner to prepare true and correct return of total income in the prescribed forms. Thus the material discovered during search proceedings were not forwarded by the search authority to the Assessing Officer holding jurisdiction over the writ petitioner. Instead, Respondent No.1 took up the proceedings by itself. 13. Originally the writ petitioner is assessed for income tax at Mumbai and is a resident of Mumbai a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the order; (b) where the Principal Directors General or Directors General or Principal Chief Commissioner or Chief Commissioners or Principal Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, 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 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 Officers or Assessing Officers from whom the case is transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f: Search action u/s.132 of the Income Tax Act, 1961 conducted on 28.01.2020 in case of M/s. Polisetty Somasundaram Group Others, Guntur. ****** Please refer to the above. 2. A search u/Section132 of the Income Tax Act, 1961 was conducted on 28.01.2020 in case of M/s.Polisetty Somasundaram Group Others, Guntur. During the course of search proceedings, your case was covered u/s.132/133A. Accordingly a request has been received from the PCIT(Central), Visakhapatnam for transfer of the jurisdiction of the PAN and centralization of your case for the purpose of coordinated investigation and assessment in relation to the search proceedings as per CBDT guidelines. Therefore the jurisdiction of your case is proposed to be transferred from the present jurisdiction of ITO-19(1)(1), Mumbai to the DCIT/ACIT, Central Circle-1, Guntur. The said transfer is being made in the interest of the revenue so as to enable proper and co-ordinated assessments. 3. In this connection as per clause (a) of sub section (2) of Section 127 of the Income Tax Act, 1961 you are hereby given an opportunity of being heard. You may appear in this office as mentioned above either personally or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the orders of assessment that were passed by Respondent No.1 on the anvil of the above proceedings under Section 127, 153C shall be held as invalid orders passed without jurisdiction. 16. In such scenario, the contention of the standing counsel for Revenue is that the writ petitioner when received notices and summons from Respondent No.1 did not raise objection concerning jurisdiction before Respondent No.1 and submitted himself to the jurisdiction of Assessing Officer and therefore he cannot now contend that the Assessing Officer had no jurisdiction to pass the order. In affect this argument conveys only the argument of convenience for Respondent No.1, and is not hinged on any principle either in a statute or in the precedent, brought to the notice of this Court by the Revenue to the affect that by mere responding to the notice issued by Respondent No.1 jurisdiction stood vested with Respondent No.1. It is well know that when statute prescribes the authority with whom the power is vested it is only that authority which can exercise that power. By consent of parties the statutory prescription cannot be waived nor vested with another authority. Though the plea of legal com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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