TMI Blog2023 (7) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... if any. The principle that the Assessing Officer alone who was holding the original jurisdiction over the assessee, who could issue notice under section 148 of the Act has been considered by the Hon ble Punjab Haryana High Court in the case of Lt. Col. Paramjeet Singh Vs. CIT [ 1996 (3) TMI 120 - PUNJAB AND HARYANA HIGH COURT] held in the absence of any transfer order no Assessing Officer other than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to re-open a concluded assessment. We also observe that an identical issue where the Gurgaon Income Tax Officer had remotely and erroneously assumed jurisdiction over the cases of other co-owners and had initiated and concluded re-assessments against them came up for hearing before the Tribunal in the batch of cases and the Tribunal held that the assumption of jurisdiction by the Gurgaon Income Tax Officer was improper incorrect and invalid by order in the case of Attar Singh Others [ 2019 (8) TMI 767 - ITAT DELHI] In the cases before us we find that Shri Satya Pal was employed in Gurugram Gramin Bank was regularly filing returns before the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant without any reasonable cause: 2. in sustaining and maintaining the proceedings u/s 147/148 of the act in the subject year: 3. in completing the assessment on the basis of such wrong action u/s 143(3) of the Act: 4. in computing the income u/s 143(3) of the Act at Rs. 3,23,43,523/- against the returned income of Rs. 2,77,890/-: 5. in computing Long Term Capital Gain on transfer of agricultural land done in an earlier year but charged during the year by assuming the cost of acquisition and indexation cost without any material before him; 6. confirming the computation of Long Term Capital Gain and additions made to the returned income to the extent of Rs. 3,20,65.633/-; 7. Not allowing claim for deduction u/s 54B 54F of the I.T. Act 1961; 8. Charging interest u/s 234A and 234B of the Income-tax Act, 1961. 3. At the time of hearing permission was sought to raise the following as additional grounds of appeal: 1. in assuming jurisdiction over the case without any authority of law and in derogation of the jurisdiction as originally vested with the Assessing Officer, Salary Circle, Rewari: 2. in the proceedings u/s 147/148 being endorsed and appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. It is urged on behalf of the Appellant that it has been done so without the authority of law and in derogation of the jurisdiction originally vested in another Assessing Officer AO). Ground Nos. 1 and 2 as originally raised by the assessee state that the proceedings initiated u/s. 147/148 of the Act were without reasonable cause and that they have been sustained and maintained in the subject year by the lower authorities erroneously. The dispute obviously, therefore, is with reference to the authority of the Assessing Officer to initiate and maintain the proceedings u/s 147/148 of the Act. It is trite that the jurisdiction u/s147 of the Act has to be invoked after due application of mind and in conformity with the applicable conditionalities failing which the initiation would be unreasonable and unsustainable. We, therefore, hold that the additional grounds as raised are clarificatory and essentially a continuation of the original ground Nos. 1 and 2. We, therefore, admit for consideration and adjudication the additional grounds along with the original grounds 1 2. 5.2 The ld. Counsel submits that the relevant facts relating to the controversy in additional ground NO. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Pan number of the assessee and an assessment was rightfully concluded by the jurisdiction AO i.e. IT Ward (5) Gurgaon. Subsequently the PAN is also transferred to Correct jurisdiction of ITO, Ward 4(1) Gurgaon . 5.5 Ld. Counsel submits that it is noteworthy that the Assessing Officer concedes that the correct jurisdiction was with ITO, Ward 4(1) Gurgaon and not with ITO, Ward 4(5) Gurgaon who had issued the notice u/s 148 of the Act. In any case the AO Ward 4(5) Gurgaon never had jurisdiction over the assessee. 5.6 Ld. Counsel submits that on Identical circumstances in the case of cousins of the Appellant namely S/Sh. Ram Kishan Kanwar Lal Ram Avtar and Manphool Ram Singh, who were also parties to the same land deal the Tribunal, Delhi G Bench has held vide order dated 10.07.2022 in ITA Nos. 3025 to 3028/Del/ 2017 that the assumption of jurisdiction in their cases by the ITO Gurgaon as erroneous and untenable and consequently quashed the notices u/s 148 of the Act. While so doing the Hon'ble Tribunal relied upon an earlier order passed by Tribunal A Bench in ITA. Nos. 2682/Del/2018 2613/Del/2018 which itself relied upon the following cases:- (i) Lt. Col. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITO, Ward 3(4), Gurgaon did not have jurisdiction over the Appellant. The Appellant was being assessed under the jurisdiction of the Salary Circle, ITO. Ward 6. There was no order for the transfer of jurisdiction of the Appellant from the ITO, Ward 6, Gurugram, to the ITO, Ward 3(4), Gurgaon. The Hon'ble Tribunal had directed the Department to verify the averments of the assessee on the issue of jurisdiction. In the report dated 01.07.2022 the Ld. DR has not submitted any comments regarding this appellant although he had sent his comments with regard to his brothers Satyabir and Satya Pal who were in appeal on the same issue. 8. On the other hand, the ld. DR placed the report sent by the Income Tax Officer, Ward 4(1), Gurgaon, on the jurisdiction of the assessee who asserted that the Income Tax Officer, Ward 3(4) Gurgaon had only jurisdiction over the assessee. The ld. DR strongly supported the order of the Assessing Officer and submitted that the jurisdiction for re-opening the assessee s case is only with the Income Tax Officer, Ward 3(4) Gurgaon and the Assessing Officer has rightly issued notice under section 148 of the Act. The ld. DR further submits that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Shri Satya Pal, the Income Tax Officer observed as under:- 1. The assessee has raised the ground that the ITO Ward 4(1), Gurgaon assumed the jurisdiction without any authority of law and in derogation of the jurisdiction as vested with the assessing officer, Salary Circle, Rewari. Upon the perusal of assessment records, it has been observed that the Information in respect of Sh. Satya Pal was available to the then AO as NON PAN information but the address of the assessee was Village Nakhrola, Tehsil and Distt. Gurgaon which is under the jurisdiction of Gurgaon. The reasons were recorded by ITO Ward 4(5) Gurgaon and thereafter the assessee during the course of assessment proceedings submitted the PAN number of the assessee and the assessment was rightfully concluded by the jurisdiction AO i.e. ITO, Ward 4(5), Gurgaon. Subsequently the PAN is also transferred to Correct jurisdiction of ITO Ward 4(1), Gurgaon. 11. As could be seen from the above report that the Income Tax Officer, Ward 4(1) asserts that the Income Tax Officer, Ward 4(5) Gurgaon had the jurisdiction over the assessee. It was also stated that subsequently the PAN is also transferred to the correct juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 2[7-A) of the Act al includes a DCIT and other superior officers or an ITO of some other ward who may be vested with the relevant jurisdiction by virtue of orders issued under Section 120 (1) or Section 120 (2) of the Act will not make a difference to the above legal position. The reason is not far to seek. It is only the Assessing Officer who has issued the original assessment order dated 13th April 2009 for AY 2007-08 under Section 143 (3) of the Act who is empowered to exercise powers under Section 147/148 to re-open the assessment. This is because he alone would be in a position to form reasons to believe that some income of that particular AY has escaped assessment. This again cannot be based on a mere change of opinion. Further, in terms of Section 151 of the Act such a move will have to have the prior approval of the CIT. Under the scheme of the Act, if a superior officer forms an opinion that the original assessment order is prejudicial to the interests of the Revenue, recourse can be had to Section 263 of the Act. In any event the question of an ITO who is not the AO who passed the original assessment order under Section 143 (3) of the Act for particular AY, exercisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scaped assessment is a jurisdictional fact and only on its satisfaction does the Assessing Officer acquire jurisdiction to issue notice Thus this lack of satisfaction of jurisdictional fact can never confer jurisdiction and an objection to it can be raised at any time even in appeal proceedings The mere fact that no objection is taken before the Assessing Officer would not by itself bestow jurisdiction as the Assessing Officer such an objection can be taken in appeal also Moreover the Apex Court in its recent decision in Kanwar Singh Saini V/s. High Court Of Delhi reported in 2012(4) SCC 307 has held that it is settled position that conferment of jurisdiction is a legislative function and cannot be conferred by consent of petitioner An issue of jurisdiction can be raised at any time even in appeal or execution Reliance in this regard could usefully be made to Indian Bank v/s Manilal Govindji Khona reported in 2015 (3) SCC 712. Paras 22 of the said judgment read as under: 22. In Sushil Kumar Mehta case [Sushil Kumar Mehta Vs. Gobind Ram Bohra, (1990) 1 SCC 193] this Court has elaborately considered the relevant factual and legal aspect of the case and has laid down the law at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to the facts of the present case. In the case of Abhishek Jain (supra)we find the Assessing Officer Noida had issued notice u/s 148 on the basis of deposits made in cash in ICICI Bank, Noida. The fact that this assessee was regularly assessed in Delhi was not intimated to the Assessing Officer at Noida and the assessee had not mentioned his PAN in the ICICI Bank and the address of the assessee was also in Noida. After the completion of the time barring period which is 31 March 2016 the assessee intimated on 19th May 2016 that he had been regularly assessed in Delhi. Under these circumstances, the Hon'ble Delhi High Court held that it was mala fide on the part of the assessee not to intimate prior to 31.03.2016 and the assessee was waiting for time limitation to expire and, therefore the Hon'ble High Court held that in terms of section 124(3)(b), the jurisdiction of an Assessing Officer cannot be called in question by an assessee after the expiry of one month from the date on which he was served with a notice for reopening of assessment u/s 148. However, in the instant case, the assessee had enclosed the copy of return filed with the Assessing Officer of Delhi with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter will have jurisdiction to proceed. Thus, in the absence of any transfer order, no other Assessing Officer than the one who initiated the proceedings or completed the assessment shall have jurisdiction to continue with the proceedings or even to reopen a concluded assessment. Since in the instant case the assessee was regularly filing his return with ITO at Delhi and since no transfer order u/s 127 of the IT Act, 1961 was passed transferring the case to ITO, Gurugram, therefore, only the ITO, Delhi had jurisdiction to issue notice u/s 147 and the Income Tax Officer, Gurugram has no jurisdiction to issue notice u/s 148 to the assessee. 35. In view of the above discussion, we hold that the notice issued by the Assessing Officer at Gurgaon is void ab initio on account of lack of jurisdiction. Therefore the proceedings are quashed. Since the assessee succeeds on this legal ground the various other grounds on merit are not being adjudicated being academic in nature. Since the legal ground raised by the assessee challenging the reassessment proceedings are decided in favour of the assessee, the grounds raised by the Revenue in its appeal become infructuous and the same is accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een produced before us to validate the jurisdiction as assumed by the ITO, Ward 3(5), Gurugram. It is thus clear that the assumption of jurisdiction to reassess the Appellant by the Gurugram AO is irregular and fallacious. In a similar situation the Delhi Bench of the Income tax Appellate Tribunal in the case of Attar Singh Ors. ITA No, 2682/Del/2018 dated 08.08.2019 has held that the assumption of jurisdiction by a different AO at Gurugram who was other than the AO holding jurisdiction over the assessee for the relevant year was invalid. Respectfully following that order and with facts being similar we hold that the assumption of jurisdiction by the ITO, Ward 3(5), Gurugram in the case of the Appellant is erroneous, illegal and void. 16. In the cases before us we find that Shri Satya Pal was employed in Gurugram Gramin Bank was regularly filing returns before the Income Tax Officer, Ward 33(1) Rewari, and was assessed by Income Tax Officer, Ward 33(1) Rewari and Shri Satyabir Singh Yadav was employed with Indian Institute of Air-craft Engineering, New Delhi was regularly filing returns before the Income Tax Officer, Ward 48(3), New Delhi, and Shri Rati Ram, who was employed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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