M/S BSN JOSHI & SONS LTD,KHURDA vs. ACIT(OSD), BHUBANESWAR

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER

ITA No.07/CTK/2011 Assessment Year : 2006-2007

M/s. BSN Joshi & Sons Ltd.,Joshi Vs. ACIT (OSD), Range-2, House, Raja Bazar, Jatni, Khurda Bhubaneswar PAN/GIR No.AACCB 0427 B (Appellant) .. ( Respondent)

Assessee by : Shri P.C.Sethi, AR Revenue by : Shri Subhendu Dutta, DR

Date of Hearing : 07/08/ 2019 Date of Pronouncement : 08/08/ 2019

O R D E R Per C.M.Garg,JM This appeal is filed by the assessee against the order dated 22.10.2010 of the CIT(A)-II, Bhubaneswar for the assessment year 2006- 07.

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11.8.2008 has been placed and name of D.K.Chatterjee has been listed at sl. No.14 and name of the present assessee has been listed at Sr. No.42 for modifying the earlier order dated 9.8.2007. ld A.R. further submitted that by subsequent order dated 25.11.2008 placed at pages 26-28 of assessee’s paper book, the Addl. CIT, Range-2, Bhubaneswar assigned the case of both D.K.Chaterjee and the present assessee, which is listed at Sl.No.10 and at Sr.No.27, respectively. Ld A.R submitted that ground No.3 of the assessee is covered by the order of the Tribunal dated 23.8.2018 in the case of D.K.Chaterjee in ITA No.160/CTK/2010 for A.Y. 2006-07, therefore, since the facts and circumstances of the present case is identical to the case of D.K.Chaterjee (supra), the appeal of the assessee may kindly be allowed by quashing the assessment order and the first appellate order.

“12. A perusal of sub-section (3)(b) of section 124 of the Act shows that the jurisdiction of an Assessing Officer cannot be called in question by an assessee after the expiry of one month from the date of which he was served with a notice under sub-section (1) of section 142 of the Act or after completion of assessment, which was to be earlier. It is further evident that sub-section (4) of section 124 of the Act has been made subject to the provisions of sub-section (3) in case an assessee has questioned the jurisdiction of an Assessing Officer. It is only in those jurisdictions that the

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Assessing Officer is to refer the matter for determination to the Director General or the Chief Commissioner or the Commissioner as per the provisions of section 124(2) of the Act. It is, thus, evident that before the expiry of the period of one month from the date of service of notice under sub-section (1) of section 142 of the Act, no right to question the jurisdiction of an Assessing Officer would survive. 13. In this case, it is undisputed position that the return of income was filed on 31.10.2006 declaring taxable income at Rs.6,86,900/- and upon ITA No.160/CTK/2010 12 issuance of statutory notice, ld. AR of the assessee appeared and submitted the details. Finally the ACIT(OSD), Range-2, Bhubaneswar after hearing the Authorised Representative of the assessee on various dates i.e on 5.12.08, 10.12.08, 15.12.08, 19.12.08 and 23.12.08 framed the assessment u/s.143(3) of the Act on 24.12.2008. 14. However, in the present case in hand, the important question is as to whether the Additional Commissioner of Income Tax is empowered to transfer the cases to any other the Assessing Officers. Power to transfer of cases to the Assessing Officers has been defined u/s.127 of the Income Tax Act, 1961, which reads as under :- “[Power to transfer cases. 127. (1) The [Principal Director General] or Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner,— (a) where the [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter,

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wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) where the [Principal Directors General or] Directors General or [Principal Chief Commissioners 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 Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners 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 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. Explanation: In section 120 and this section, the word "case", in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year.]” 15. From the above provisions of Section, it is understood that the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, can transfer any case from one or more Assessing Officers subordinate to him. In the instant case the Additional Commissioner of Income Tax vide order dated 25th November, 2008 has passed an order and reassigned the case of the assessee to the ACIT(OSD) and forwarded the copies to the Chief Commissioner of Income Tax and Commissioner of Income Tax accordingly. Here, we would like to mention the functions of Additional Commissioner of Income Tax provided in the Manual of Office Procedure, Directorate of Income Tax (Organisation & Management Services) Central

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Board of Direct Taxes, Department of Revenue, Government of India, February, 2003, reads as under :- 18 Functions of Additional/Joint Commissioner of Income Tax (Range) 18.1 After restructuring of the department, the business process has been redesigned to make it Range-centric, thus emphasizing the pivotal role of the Range-head. Additional/Joint Commissioner, who is the head of the Range, exercises concurrent jurisdiction and may, as such, also be required to formulate assessments in revenue yielding and complex cases. The assessment unit of the Range consists of five assessing officers (one DCIT/ACIT and four ITOs). The collection unit in a Range is headed by a TRO who is responsible for collection and recovery of tax. The Record Keeping Unit of the Range is headed by an Administrative Officer/Office Superintendent. 18.2 As head of the range, the main functions of the Addl./Joint Commissioner of the Income Tax are : i. Supervision and control ii. Statutory functions iii. Effective tax-payer services iv. Expansion of tax-base v. Judicial functions vi. Processing of TEPs vii. Computerization Note: Detailed functions of the Range are enumerated in the relevant chapters of this Manual such as ‘Office Management’, ‘Assessment Procedure’, etc. 16. From the above, it is clear that the Additional/Joint Commissioner, is the head of the Range, exercises concurrent jurisdiction and may, as such, also be required to formulate assessments in revenue yielding and complex cases and the assessment unit of the Range consists of five assessing officers (one DCIT/ACIT and four ITOs). The proposal to assign 15 cases to an ACIT(OSD) is generally moved or held from the Range Head. However, cases are assigned by a Commissioner of Income Tax only after passing a specific order assigning cases to an ACIT(OSD), as he is always an adjunct in the office of the CIT. Therefore, he is specifically designated to perform the duties of an AO. 17. In this case, although the office of the Chief Commissioner of Income Tax, vide order No.50/2008-09, dated 19th November, 2008 has transferred/posted the Assistant Commissioner of Income Tax (A.K.Bandopadhyay, who is the Assessing Officer in the present appeal) to the office of the Commissioner of Income Tax, Bhubaneswar, copy of which is placed on record by the Department along with written submission filed on 15.06.2017), however, the office of the Additional Commissioner of Income Tax, has assigned the cases to the ACIT(OSD) vide order dated

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25.11.2008. Before us, ld. DR could not place any authorization or order issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act by the Commissioner authorizing an Additional Commissioner of Income Tax to assign or reassign the cases to the Assessing Officers, neither any CBDT Circular supports the Additional Commissioner of Income Tax on record to transfer or reassign the cases to any other Assessing Officer. 18. The issue involved in this appeal can also be viewed from one another angle. The issue involved is that the Assistant Commissioner of Income Tax, Circle-2(1), Bhubaneswar, having jurisdiction over the case of the assessee, issued notice u/s.143(2) of the Act in exercise of that jurisdiction. After exercise of that jurisdiction which was conferred upon him under law, can the case of the assessee be transferred to another officer i.e. ACIT(OSD), Range-2, Bhubaneswar without passing any order u/s.127 of the Act merely on the ground that the other officers also had concurrent jurisdiction over the case of the assessee. 19. We find that the issue is squarely covered by the decision of Hon’ble Delhi High Court in the case of Valvoline Cumins Limited Vs. Deputy Commissioner of Income-Tax and others, [2008] 307 ITR 103 (Delhi), wherein it has been held as under :- “When a power has been conferred upon two authorities concurrently, either one of them can exercise that power and once a decision is taken to exercise the power by either of those authorities, that exercise must be terminated by that authority only. It is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude exercise of that power.” Further in para 29, the Hon’ble High Court has held as under :- “29. It appears to us quite clearly that there is a distinction between concurrent exercise of power and joint exercise of power. When power has been conferred upon two authorities concurrently, either one of them 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 is not that one authority can start exercising a power and the other authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible in a situation where both the authorities jointly exercise power but it certainly is not permissible where both the authorities concurrently exercise power. One example that immediately comes to the mind is that of grant of anticipatory bail. Both the Sessions Judge and the High Court have concurrent power. It is not as if a part of that power can be exercised by the High Court and the balance power can be exercised by the Sessions Judge. If the High Court is seized of an

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application for anticipatory bail it must deal with it and similarly if the Sessions Judge is seized of an anticipatory bail, he must deal with it. There can be no joint exercise of power both by the High Court as well as by the Sessions Judge in respect of the same application for anticipatory bail.” 20. In view of the above decision of Hon’ble Delhi High Court, the ACIT(OSD), Range-2, Bhubaneswar could not have jurisdiction to pass the assessment order in case of the assessee as the ACIT, Circle-2(1), Bhubaneswar had already exercised the jurisdiction by issuing notice u/s.143(2) of the Act when admittedly no order u/s.127 of the Act was passed by the competent authority under that section. 21. Accordingly, we hold that the order passed by the Additional Commissioner of Income Tax, dated 25th November, 2008 re- assigning the cases to the ACIT(OSD), who is the Assessing Officer in the present case, is not maintainable and consequently, the orders passed by the AO and confirmed by the CIT(A) in the case of present assessee are hereby quashed. We order accordingly. “ 6. We find that the case of the assessee was also listed in the same order of

the ACIT, Range-2, Bhubaneswar dated 11.8.2008, for the purpose of completion

of time barring scrutiny assessment for the assessment year 2006-07, wherein, the

case of D.K.Chaterjee was also listed. The jurisdiction of the Assessing Officer

has been elaborately dealt with by the Tribunal in the case of D.K.Chaterjee

(supra) and it was held that the order passed by the Additional Commissioner of

Income Tax, dated 25th November, 2008 re-assigning the cases to the ACIT(OSD),

who is the Assessing Officer in the present case, is not maintainable and

consequently, the orders passed by the AO and confirmed by the CIT(A) in the

case of present assessee are hereby quashed. Following the precedent, we also

hold that the reassigning the case to ACIT(OSD) is not maintainable and

consequently, we quash the assessment order and the order of the first appellate

order. Accordingly, Ground No.3 of the assessee is allowed.

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Ground No.3 of the assessee, other grounds taken by the assessee on merits of

the case have become infructuous.

Order pronounced on 08/08/2019. Sd/- sd/- (Laxmi Prasad Sahu) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER

Cuttack; Dated 08/08/209 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : M/s. BSN Joshi & Sons Ltd.,Joshi House, Raja Bazar, Jatni, Khurda

By order

Sr.Pvt.secretary ITAT, Cuttack

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