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Facts
The assessee, a non-resident, filed her return of income declaring INR 9,99,370/-. The case was taken up for scrutiny, and a draft assessment order was passed. The assessee's objections were decided by the Ld. DRP, and a final assessment order was passed at a total income of INR 10,05,59,451/-. The assessee filed an appeal before the tribunal.
Held
The Tribunal held that the assessment order was passed without proper jurisdiction, as there was no order under Section 127 of the Act for the transfer of jurisdiction from one Assessing Officer to another. Following the precedent set by the Hon'ble Delhi High Court, the Tribunal quashed the assessment order.
Key Issues
Whether the assessment order is valid when the jurisdiction was transferred without a proper order under Section 127 of the Income Tax Act, 1961.
Sections Cited
143(3), 144C(13), 54F, 54EC, 143(2), 142(1), 127, 120, 124, 139
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Income Tax Appellate Tribunal, DELHI “D” BENCH: NEW DELHI
Before: SHRI ANUBHAV SHARMA & SHRI MANISH AGARWAL
The present appeal is filed by the assessee against the assessment order dated 17.10.2023 passed u/s 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 [“the Act”] after giving effct to the directions of Ld. Dispute Resolution Panel (“Ld. DRP”) dated 31.08.2023 for AY 2021-22.
Brief facts of the case are that the assessee is a non-resident and filed her return of income, declaring total income of INR 9,99,370/- after claiming exemption u/s 54F & 54EC of the Act. Page | 1 The case of the assessee was taken up for scrutiny by way of issue of notice u/s 143(2) dated 27.06.2022 by the ACIT/DCIT, Circle International Taxation-1(1)(1), Delhi. Thereafter, the proceedings were taken up and draft assessment order was passed on 31.12.2022 by the ACIT, Circle International Taxation-1(3)(1), Delhi. Against draft assessment order, objections were filed by the assessee before Ld.DRP who decided the objections raised by the assessee in terms of its order dated 31.08.2023. Consequently, Ld. ACIT, Circle International Taxation-1(3)(1), Delhi passed the final assessment order u/s 143(3)/144C(13) of the Act on 17.10.2023 at a total income of INR 10,05,59,451/- against which the present appeal is filed by the assessee by taking following grounds of appeal:- 1. “In the facts and circumstances of the case, and in law, the directions of the respected DRP vide order dated 13-09-2023 and consequent assessment order dated 17-10-2023 are not sustainable. In the facts and circumstances of the case, the respected DRP ought not to have confirmed the draft assessment order of the AO.
2. In the facts and circumstances of the case, the respected DRP ought to have considered the fact that there was an error committed by the Ld. AO in the calculation of built-up space received by the appellant- assessee as per the JDA and Supplementary Agreements. In the facts and circumstances of the case, the respected DRP ought to have considered that the AO was not correct in ignoring the fact that a part of land earmarked for development had to be surrendered to GHMC for road widening and consequently there was a reduction of eligible share in built-up Sft allotted to the land owners including the assessee.
3. In the facts and circumstances of the case, the respected DRP ought to have considered that the Ld. AO erred in determining the sale consideration at Rs. 10,11,40,688/-. In the facts and circumstances of the case, there is no under statement of LTCG as determined by the Ld. AO.
4. In the facts and circumstances of the case, the respected DRP ought to have considered the fact that the appellant-assessee was entitled to include Rs.1,27,00,000/- paid to M/s Lumbini Constructions India Private Limited towards the cost of interiors, wood-work, etc, in the total investments made in the flats and consequently, was eligible to consider this amount for deduction u/s 54F.
5. In the facts and circumstances of the case, the respected DRP ought not to have disallowed the cost incurred for construction of servant quarter, compound wall etc,.
In the facts and circumstances of the case, the respected DRP ought to have considered that the Ld. AO erred in denying the exemption clamed u/s 54EC. In the facts and circumstances of the case, the respected DRP ought to have considered that the Ld. AO erred in denying the exemption clamed u/s 54F.
7. In the facts and circumstances of the case, the respected DRP was not correct in giving directions that for the purpose of calculation of indexed cost of acquisition the year should be till FY 2012-13.
In the facts and circumstances of the case, the respected DRP ought to have considered that the cost of acquisition adopted by the AO of the asset transferred by the assessee in FY 2020-21 was not correct.
In the facts and circumstances of the case, the respected DRP ought to have considered the fact that the appellant-assessee having mentioned her address as in Hyderabad in the returns filed, the AO who is designated as ACIT, Circle, Int Tax 1(3)(1), New Delhi ought not have assumed jurisdiction over the appellant-assessee. In the facts and circumstances of the case, the respected DRP ought to have considered the fact that as the appellant-assessee's address is mentioned as in Hyderabad, the AO ought to have transferred the case to the Assessing Officer, International Taxation Wing in Hyderabad.
The appellant-assessee seeks the leave of Hon'ble Bench to amend, alter, add or delete any ground at the time of hearing.”
Ld.AR for the assessee in terms of letter dated 07.05.2025 filed during the course of hearing, stated that Ground of Appeal No.9 was taken for the first time before the Tribunal and further raised following additional ground of appeal:-
“In the facts and circumstances of the case, the AO who passed the assessment order had no jurisdiction over the assessee and thereby rendering the assessment order is valid.”
Ld.AR for the assessee requested that the Ground of Appeal No.9 and the additional ground taken in terms of letter dated 07.05.2025 are inter-connected and inter-related and are purely legal ground and requires no verification of facts and therefore, same be admitted for adjudication.
5. On the other hand, Ld.CIT DR for the Revenue objected to the admission of the additional ground and stated that this was not taken before the lower authorities and thus, cannot be raised at this stage.
6. Heard the contentions of both the parities and perused the material available on record. From the perusal of additional ground, it is seen that the assessee has challenged the jurisdiction of the AO in passing the assessment order without there being any order passed u/s 127 of the Act for transfer of jurisdiction from ACIT, Circle International Taxation-1(1)(1), Delhi to ACIT, Circle International Taxation-1(3)(1), Delhi. Thus, Ground being legal in nature and requires no verification of the facts. It is established proposition of law that legal ground can be raised at any stage of proceedings as has been held by the Hon’ble Supreme Court in the case of NTPC reported in 229 ITR 383 (SC). Accordingly, additional ground taken by the assessee is admitted for adjudication.
The additional ground of appeal and Ground of Appeal No.9 are legal in nature thus, are taken first for consideration.
8. In support of these ground, Ld.AR for the assessee submits that the assessee is a non-resident Indian and e-filed her return of income for the year under appeal on 27.12.2021 wherein the address of the assessee is mentioned as under:- Plot No.550, House No.-8-3-293/83/J-III, Road No.92, Jubilee Hills, Telangana-500033.
9. Ld.AR further submits that the assessee is a permanent resident of United States and her communication address of India was at “Hyderabad, Telengana” and therefore, the jurisdiction lies with AO at Hyderabad at which address she was regularly filing her return of income. However, the notice u/s 143(2) dated 27.06.2022 was issued by Ld. ACIT/DCIT, Circle International Taxation-1(1)(1), Delhi. Thereafter, without there being any order passed u/s 127 of the Act for transfer of jurisdiction, the subsequent notice u/s 142(1) was issued by the Ld. ACIT, Circle International Taxation-1(3)(1), Delhi and finally, the final assessment order was passed by Ld. ACIT, Circle International Taxation-1(3)(1), Delhi. Ld. AR submits that the case of the assessee was transferred from Ld. ACIT/DCIT, Circle International Page | 5 Taxation-1(1)(1), Delhi to Ld. ACIT, Circle International Taxation- 1(3)(1), Delhi without any order passed u/s 127 of the Act thus, all the consequent proceedings are bad in law. For this, reliance is placed by Ld.AR for the assessee on the judgement of Co-ordinate Bench of the Tribunal in the case of Raj Sheela Growth Fund (P).Ltd. vs ITO in [Assessment Year 2015-16] order dated 09.08.2019 which order gotconfirmed by the Hon’ble High Court of Delhi in vide order dated 08.05.2024. Ld.AR also drew our attention to the returns filed by the assessee for AYs 2016-17 to 2022-23 which are placed at pages 54 to 60 of the Paper Book wherein in all the returns filed u/s 139, the address of the assessee was of Hyderabad and thus, he prayed that the jurisdiction assumed by Ld. ACIT/DCIT, Circle International Taxation-1(1)(1), Delhi or Ld. ACIT, Circle International Taxation-1(3)(1), Delhi is bad. He also placed reliance on the communication received by the assessee on 21.06.2024 wherein it is stated by the ITO, International Taxation, Hyderabad that the case of the assessee is transferred from ACIT, Circle International Taxation-1(3)(1), Delhi to ITO, International Taxation, Hyderabad on 29.11.2023 based on the address given by the assessee of Hyderabad. Ld.AR accordingly, prayed that the order so passed by Ld. ACIT, Circle International Taxation-1(3)(1), Delhi is without jurisdiction therefore, deserves to be quashed. He prayed accordingly.
10. On the other hand, Ld.CIT DR supported the orders of the authorities below and submits that the assessee has not raised the issue of jurisdiction before the AO or before Ld.DRP therefore, this issue cannot be taken at this stage and he thus, requested for confirmation of the order of the lower authorities.
11. Heard the contentions of both the parties and perused the material available on record. In the instant case, it is seen that the assessee is a non-resident Indian residing at USA and having permanent address in India at Hyderabad at which the return of income were filed for various AYs. The return for the year under appeal was field at the address of Hyderabad however, the notice u/s 143(2) of the Act was issued by the AO at ACIT/DCIT, Circle International Taxation-1(1)(1), Delhi. It is also seen that subsequent proceedings were taken up and final assessment order was passed by the AO, Circle International Taxation-1(3)(1), Delhi. The case of the assessee was then transferred to ITO, Ward- International Taxation-1, Hyderabad. From the records, it is seen that there was no order passed u/s 127 of the Act for transfer of case from one AO to other AO i.e. from ACIT/DCIT, Circle International Taxation- 1(3)(1), Delhi to ACIT/DCIT, Circle International Taxation-1(1)(1), Delhi who completed the assessment though the assessment proceedings were initiating by issue of notice u/s 143(2) by the other AO. As per sub-section (1) to Section 127 where the case is transferred from one AO who is sub-ordinate to the Commissioner or Pr. Commissioner or Chief Commissioner of Income Tax to Page | 7 another AO who also is subordinate him, the assessee should be provided a reasonable opportunity of being heard and also recording the reasons for doing so. In the instant case, it is seen that the provision of section 127 of the Act, are not followed though the case has been transferred from one authority to another authority. Thus, without such order u/s 127 of the Act, jurisdiction cannot be conferred on the transferee AO. The Co- ordinate Bench of the Tribunal in the case of Raj Sheela Growth Fund (P.) Ltd. (supra) while dealing with this issue and also with the issue of objection u/s 124 has held the order as invalid by observing as under:- 20. “On the issue of jurisdiction as challenged by the assessee, after considering the rival submissions and on perusal of the relevant finding given in the impugned order qua this issue of jurisdiction challenged by the assessee u/s. 127, we find that the Ld. CIT (A) has dismissed the assessee' appeal on the ground that no such protest was registered by the assessee under assessment stage before the Assessing Officer despite due opportunity of hearing was provided. Section 127 provides the power to transfer of case by various senior authorities from one or more Assessing Officers sub- ordinate to them whether with or without concurrent jurisdiction to any other Assessing Officer also subordinate to them. In case, the Assessing Officer from whom the case is transferred to the transferee Assessing Officer are not subordinate to the same authority then such a transfer has to be done after giving reasonable opportunity of being heard in the matter and after recording the reason before passing the order. However, if transfer is from Assessing Officer to another Assessing Officer situated in the same city then no opportunity is required to be given. Thus, it is mandatory under the law that, if case of an assessee is transferred to one Assessing Officer to another, then order u/s 127 has to be passed and without such order jurisdiction cannot be conferred on the transferee Assessing Officer. On the other hand, Section 124 is applicable only when there is a direction or an order issued u/s.120(1) or 120(2) vesting the Assessing Officer with a jurisdiction of an area, i.e., where there is an assignment of the jurisdiction of an Assessing Officer. Sub section (1) of Section 124 assigns Page | 8 Assessing Officer's jurisdiction linked with the territory. Sub Section (2) of Section 124 provides that assessee may raise objection regarding the correctness of the jurisdiction with respect to territorial jurisdiction u/s. 124(1). Sub Section (3) of section 124 provides for time limit for raising such objection. Here, it is not a case where assessee is challenging the territorial jurisdiction of the Assessing Officer albeit what has been challenged before us is that, Assessing Officer inherently lacked jurisdiction due to non passing of mandatory order u/s.127(2)(a) by the competent authority. It is now well-established principle of law that there is a distinction between lack of jurisdiction and irregular exercise of jurisdiction. The proceedings render void ab initio when the authority taking it has no power to have succinic over the cases.
21. The Hon'ble Delhi High Court in the case of Abhishek Jain vs. ITO (supra) had on an occasion to deal with this issue wherein their Lordships have referred to their earlier case of CIT vs. S.S. Ahluwalia (supra) and observed as under: "18. S.S. Ahluwalia (supra), examines several decisions which were relied upon by the assessee in the said case and were held to be not germane and applicable. This decision also explains provisions of Section 127 of the Act and scope and ambit of the said power, to observe that the section does not speak of the transfer of jurisdiction but transfer of case as defined in Section 127. Expression "concurrent jurisdiction" is mentioned in sub-section (3) to Section 127 of the Act. Elucidating the legal effect of Sections 120, 124 and 127 of the Act, it was observed in S.S. Ahluwalia (supra):-- "(13) The provisions indicate that Sections 120, 124 and 127 of the Act recognizes flexibility and choice, both with the assessee and the authorities i.e. the Assessing Office before whom return of income could be filed and assessment could be made. The Assessing Officer within whose area an assessee was carrying on business, resided or otherwise income had accrued or arisen (in the last case, subject to the limitation noticed above) has jurisdiction. Similarly, the Assessing Officer also has authority due to class of income or nature and type of business. The Act, therefore, recognized multiple or concurrent jurisdictions. Provisions of Section 124 ensure and prevent two assessments by different assessing officers, having or enforcing concurrent jurisdiction. There cannot be and the Act does not envisage two assessments for the same year by different officers. (Reassessment order can be by a different officer)."
19. We would reiterate that sub-section (1) to Section 124 states that the Assessing Officer would have jurisdiction over the area in terms of any direction or order issued under sub- section (1) or sub-section (2) to Section 120 of the Act. Jurisdiction would depend upon the place where the person carries on business or profession or the area in which he is residing. Sub-section (3) clearly states that no person can call in question jurisdiction of an Assessing Officer in case of non- compliance and/or after the period stipulated in clauses (a) and (b), which as observed in S. S. Ahluwalia (supra) would negate and reject arguments predicated on lack of subject matter jurisdiction. Where an assessee questions jurisdiction of the Assessing Officer within the time limit and in terms of sub-section (3), and the Assessing Officer is not satisfied with the correctness of the claim, he is required to refer the matter for determination under sub-section (2) before the assessment is made." Further, the Hon'ble High Court held that: "Section 127 relates to transfer of case from one Assessing Officer having jurisdiction to another Assessing Officer, who is otherwise not having jurisdiction as per directions of the Board under Section 120 and Section 124 of the Act. Under sub-section (1), transfer order under Section 127 can be passed by the Director General, Chief Commissioner or Commissioners from one Assessing Officer to another Assessing Officer subordinated to them. Sub-section (2) applies where the Assessing Officer to whom the case is to be transferred is not subordinated to the same Director General, Chief Commissioner or Commissioners of the Assessing Officer from whom the case is to be transferred. This is not a case of a transfer under Section 127 of the Act. This is a case in which the assessee had raised an objection stating that the Income-Tax Officer, Ward-1 (1), Noida should not continue with the assessment as the petitioner-assessee was regularly filing returns with the Income-Tax Officer, Ward-58 (2), Delhi. Objection as raised were treated as made in terms of sub- section (3) to Section 124, notwithstanding the fact that there was delay and non-compliance. The Income-Tax Officer, Ward-1 (1), Noida accepted the request/prayer of the petitioner and had transferred pending proceeding to the Assessing Officer, Ward-58 (2), Delhi. Therefore, there was no need to invoke and follow the procedure mentioned in sub- section (2) to Section 127 of the Act. Section 127 of the Act would come into play when the case is to be transferred from the Assessing Officer having jurisdiction to a third officer not Page | 10 having jurisdiction over an assessee (a case) in terms of the directions of the Board under section 120 of the Act. Section 127 of the Act could also apply when the department wants transfer of a case, and Sections 120 and 124 of the Act are not attracted." Thus, the Hon'ble High Court has clearly held that Section 127 relates to a transfer of case from one Assessing Officer to another Assessing Officer who otherwise is not having jurisdiction as per direction of the Board u/s. 120 and 124 of the Act. In that case, their Lordships have clearly found that it was not a case of transfer u/s.127 albeit this was a case the assessee has raised an objection stating that ITO, Ward-1(1) should not continue assessment as a petitioner assessee was filing returns with ITO, Ward-21(1) Delhi. Objection as raised were treated made in terms of Section 124(3) despite that there was a delay in non-compliance by the assessee. The ITO, Ward-1(1), NOIDA accepted such a request/prayer of the assessee and has transferred the pending proceedings to the Assessing Officer Ward-58(2) Delhi. It was on these facts; their Lordships held that there was no need to invoke or to follow the proceedings mentioned in Section 127. Further, it was clearly held and observed that, "Section 127 would come into play when the case is to be transferred from Assessing Officer who having jurisdiction to the 3rd officer and not having jurisdiction over an assessee in terms of direction of Board u/s.120 of the Act. Further Section 127 would also apply when the Department wants transfer of the case and in that case Section 120 and Section 124 are not attracted." The aforesaid clarification by the Hon'ble Jurisdictional High Court clearly clinches the issue that if the case is being transferred from one Assessing Officer having jurisdiction over the assessee to another assessing officer who otherwise was not having the jurisdiction in terms of direction of the Board u/s 120 and 124 of the Act, then transfer order u/s 127 is mandatory, without which the jurisdiction of the Assessing Officer cannot be conferred to pass any order. If such a statutory procedure is not followed then there would be a chaos where any Assessing Officer can pass order in the case of any assessee even when he does not have any territorial jurisdiction over that assessee. Thus, we are of the opinion that an order u/s. 127 is mandatory which has to be passed by the competent authority if jurisdiction is transferred from one Assessing Officer to another Assessing Officer who otherwise does not have the jurisdiction over the assessee.
22. However, in this case, the Ld. CIT-DR had brought on record that there is some kind of transfer order which has been passed on 19.02.2016 vide 'transfer order no. 200000047799' wherein the PAN of the assessee has been transferred from Central Circle-20 to Ward- 21(1) Delhi. If such an order has been passed, then can it be reckoned that it is an order passed u/s.127, is not very clear? Before us, no specific transfer order has been passed except for transfer order number and the transfer date from the website. Even till the conclusion of the hearing, no specific order was produced before us. Under these circumstances and in order to ascertain the correct facts, we are of the opinion that on this specific issue the matter is remanded back to the Assessing Officer, who shall examine whether any transfer order has been passed u/s 127 or not. If vide such transfer order number and transfer date the case of the assessee has been transferred u/s 127, then assessee's contention stands rejected.” 12. The said order of the Tribunal is further confirmed by the Hon’ble Delhi High Court in wherein Hon’ble Jurisdictional High Court vide its order dated 08.05.2024 discussed the Revenue and confirmed the order of the Tribunal by observing as under:- 28. “In addition to that, a bare perusal of the order dated 15.11.2014 passed under Section 120 of the Act under the pen of ACIT read with CBDT notification dated 22.10.2014, would reveal that these notifications cannot run contrary to the legislative mandate of Section 127 of the Act. Moreover, the jurisdiction of the DCIT, Central Circle-16, New Delhi over the case of the assessee is assigned vide a separate order of centralization dated 16.07.2008. Thus, it is discernible that once the case of the assessee is centralized, then the transfer of the case of the assessee to another AO would not be permissible without a decentralization order or transfer order under Section 127 of the Act as contrary to such a position dehors the underlying objective which the Act seeks to achieve by virtue of powers enshrined under Section 127 of the Act. We accordingly set aside the impugned orders dated 31.12.2017 and 30.09.2021.
In view of the aforesaid, the writ petition is allowed and disposed of accordingly, alongwith pending applications, if any.
Moreover, it is pertinent to point out that since the impugned orders 31.12.2017 and 30.09.2021 are hereby quashed and set aside on the ground of jurisdictional error, therefore, in view of the aforesaid, Page | 12 the ITAT order dated 09.08.2019 which is impugned in ITA 124/2020 and ITA 8/2021 is also set aside.
In light of the foregoing, ITA 124/2020 and ITA 8/2021 are disposed of, alongwith pending applications, if any.
Additionally, it is apposite to point out that these observations made hereinabove are limited to the extent for the purpose of the challenge which stands posited before us i.e., whether in the absence of any order of transfer under Section 127 of the Act, the non-jurisdictional AO can proceed with the assessment and we seek to answer that question in negative. The Revenue, however is at liberty to take fresh steps through jurisdictional authorities, if otherwise permissible, in accordance with law.”
In view of the above facts and by respectfully following the judgement of Hon’ble Jurisdictional High Court of Delhi in the case of Raj Sheela Growth Fund (P.) Ltd. (supra), we are of the considered view that in the instant case, the jurisdiction has been transferred from one AO to another AO without there being any order passed u/s 127 of the Act. Thus, the jurisdiction assumed by the another AO i.e. ACIT, Circle International taxation 1(1)(1), Delhi without any authority and therefore, the order passed by him is without jurisdiction and the same is hereby quashed. The additional ground of appeal and Ground of appeal No.9 taken by the assessee are allowed.
Since we have already allowed the additional ground raised by the assessee on the legality of assessment on account of jurisdiction therefore, the other grounds of appeal taken by the assessee are not adjudicated.
In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 25.07.2025.