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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, JM & SHRI OM PRAKASH KANT, AM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-33, Mumbai dated 02.01.2019 for the assessment year 2011-12.
2. At the outset, the Ld. AR of the assessee Shri Vinod Kumar Bindal submitted that the assessee is raising the additional grounds of appeal
which reads as under: - “1. The impugned Assessment Order is bad in law ab initio as the assessing officer who passed the same did not have any valid jurisdiction for the purpose as no mandatory assessment jurisdiction transfer order u/s 127(2) of the Act was passed by the PCIT
27. Mumbai to transfer the same from the earlier Assessing Officer ITO Ward 27(2) Mumbai to the Ward ITO 21(2) Mumbai who has passed the impugned assessment order as is clear from the reply dated 21.03.2022 received under the RTI Act in this regard by the appellant.
2 A.Y. 2011-12 Kashyap K. Mehta Thus the impugned assessment order must be cancelled as void ab initio having been passed by a non-competent assessing authority.
The impugned assessment order is bad in law ab initio as no mandatory intimation u/s 129 of the Act for change in the incumbent assessing officer was ever given to the assessee by the Assessing Officer. Thus, the same must be quashed.
3. The impugned assessment order is bad in law ab initio, passed without a valid jurisdiction and on facts as the same is based on an information relating to the assessee seized at the time of search in the premises of some other person searched and which w.e.f. 01/06/2015 can only be assessed by taking recourse to the section 153A/153C of the Act as has been provided w/s153C(1)(b) of the Act. Thus the impugned assessment order passed u/s 147 of the Act is void ab initio beyond legal jurisdiction and must be quashed.”
According to the Ld. AR, these are legal issues which if found to be valid goes to the root of the jurisdiction of the AO to have passed the assessment order in question. And therefrom the aforesaid additional legal grounds may be admitted as per the decision of the Hon’ble Supreme Court in the case of NTPC Vs. CIT (1998) 229 ITR 383 (SC).
Per contra, the Ld. Departmental representative Shri Rajesh Ojha opposed the admission of the additional grounds. According to him, the aforesaid grounds have not been preferred before the Ld. CIT(A). According to the Ld. DR, the assessee has not raised any such objection regarding the jurisdiction of the AO while he participated in the assessment proceedings and therefore, he is debarred from raising the same. Further, according to the Ld. DR since even the legal issues 3 A.Y. 2011-12 Kashyap K. Mehta have not been raised before the Ld. CIT(A), the additional grounds of appeal
raised for the first time before Tribunal may be remanded back to the Ld. CIT(A) for his adjudication. In his rejoinder, the Ld. AR submitted that the tax demand raised pursuant to the impugned action of AO is to the tune of Rs.5.50 crores and since the demand raised by the department is high, he wants us to give direction to the Ld. CIT(A) to decide the legal grounds (supra) within the shortest possible time.
5. After hearing both the parties and after perusing the records, we note that the legal issue raised (supra) have not been raised before the AO/CIT(A) and for the first time it has been preferred before us. Since the additional grounds of appeal are legal issues, therefore, it is admitted as per the Hon’ble Supreme Court’s decision in NTPC Vs. CIT (supra). Since the legal issue raised (supra) involves examination of records i.e whether there was transfer of jurisdiction? And if so, was there any requirement as per law to pass any written order etc? And if required to pass the order, then who was the competent authority? And whether it was passed as per law etc needs to be carefully examined. The issue raised is mixed question of fact and law, so it would be in the interest of justice for both parties to have the view of the First Appellate Authority on it. Therefore, the assessee’s additional grounds of appeal (supra) needs to be first adjudicated in the instant case by the Ld. CIT(A). Therefore, we set aside the impugned order of the Ld. CIT(A) and remand the aforesaid additional grounds of appeal for his adjudication. And the Ld. CIT(A) is directed to adjudicate the same in accordance to the law preferably within the period of six (6) months 4 A.Y. 2011-12 Kashyap K. Mehta from the date of receipt of this order and the assessee is directed to file the written submissions as well as documentary evidence/case laws in support of their additional grounds of appeal, if advised to do so.