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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ : NEW DELHI
Before: SHRI N.K. BILLAIYA & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER : For the sake of brevity, aforesaid appeals and cross objections bearing identical question of facts and law are being disposed of by way of composite order.
Appellants Dharam Singh, Cross objector Jahagir Alam and appellant (Income Tax Officer, Ward-2(3), Noida) by filing 4 Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM aforesaid appeals and cross objections sought to set aside the impugned orders all dated 31.12.2018 passed by Sh. S.K.
Srivastava Ld.CIT(A)1, Noida on the identical grounds inter alia that :-
Because Sh. S.K. Srivastava, the then CIT(A)-1, 1. Noida had been compulsorily retired by the Government of India with effect from 11.06.2019 and accordingly, he had become functus officio w.e.f. 11.06.2019. Accordingly, any discharge of function by an officer who has become functus officio is a nullity in law and without jurisdiction. In this regard, reliance is placed on the decision of 2. the Hon’ble High Court of Karnataka in the case of Rudragouda v. The University of Agricultural Sciences and Ors., Writ Petition No. 31734/2016 (S- RES), wherein it was held that: - "The petitioner/officer after his retirement becomes functus officio. No officer can continue to discharge his functions subsequent to his retirement and more particularly, to take action against the subordinate officer or to seek sucl direction from this Court" (emphasis added)
It is to be noted that the term functus officio has been defined to mean the following: - Black's Law Dictionary I'Sixth Edition Page 6731 gives its meaning as follows: Having fulfilled the function, discharged the office, or accomplished the purpose. and therefore, of no further force or authority.
Accordingly, it is submitted that once the then CIT(A)- Noida has been compulsorily retired i.e., with effect from 11.06.2019, any order prima facie passed by him or acted upon by him after the date of his compulsory retirement is without jurisdiction. Because a vigilance inspection for the work 3. carried out by Sh. Sanjay Kumar Srivastava IRS (Retd.),who was posted to as CIT(A)-1 Noida with the additional charge of CIT(A)-2 Noida, prior to his compulsory retirement w.e.f 11.06.2019 was conducted on 19.06.2019 by the Vigilance Team of Income Tax Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM (Vigilance), which revealed that orders purported to have been passed by Sh. Srivastava in the month of December, 2018 were prima-facie passed in the month of June, 2019. In majority of these orders liable to have been uploaded on the ITBA system were uploaded between 11th June to 13thJune, 2019, i.e. after his demitting the office, as per the charge sheet filed by the CBI. As per the CBI's charge sheet there are also indications of falsification of records to allude towards dispatch of these orders on 7th June, 2019, whereas they were dispatched on 14th June, 2019 It was further revealed that 104 orders were claimed to be passed by Sh. S.K. Srivastava during December, 2018,however, many of them were uploaded to the central server using his RSA token only after his retirement. Because Ld. CIT(A)-1, Noida has committed a 4. jurisdictional error by deciding the appeal beyond fifteen days of the last hearing in contravention of Instruction no. 20/2003 dated 23.12.2003 issued by the CBDT and the order was uploaded on the ITBA after an inordinate delay of time, as it was uploaded after he was compulsorily retired under provisions of Fundamental Rules (FR) 56(J). Because the order of the CIT(A)-1, Noida, being a 5. nullity in the eyes of law, may be set aside for fresh adjudication to the jurisdictional Ld. CIT(A), Noida. Because, it is immaterial whether an order passed 6. without jurisdiction is in favour of Revenue or against it. Such an order is contrary to the administration of the Income Tax Act and it pollutes the streams of justice. Therefore, Revenue would be an aggrieved party if a Commissioner of Income Tax (Appeals) passes an order without jurisdiction and it is in interest of the revenue as well as tax administration to ensure that orders are passed b} correct legal authority under the Act. Because the Revenue being 'State' cannot be a 7. beneficiary of an order passed without jurisdiction by an Appellate Commissioner and therefore it is absolutely immaterial ultimately the case was decided in favour of the revenue by the Appellate Commissioner albeit without jurisdiction.
Because any orders, instructions or directions issued under Section 268A(1) by the Board to other income tax authorities for fixing monetary limits would not apply to orders passed without jurisdiction when the officer Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM himself had no jurisdiction to grant relief or pass any order whatsoever.
Because the monetary limits fixed pursuant to Section 268A will only apply to orders passed by authorities with jurisdiction and not to authorities without jurisdiction. Section 268A(1) of the Act reads as follows: -
"Section 268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter"
The Revenuecraves leave to modify any of the grounds above and/or to add any fresh ground or grounds as and when it is required to do so.”
Notices to the respondents were sent through revenue department and were duly served. Sh. Praveen Bidhuri assessee appeared in person in Sh. Rohit Tiwari and Mohan Kalra, Advocate appeared in ITA No. 1185/Del/2020 and Sh. Akhilesh Kumar, Advocate appeared in ITANo.6823/Del/2019 and 6837/Del/2019 and in rest of the appeals none appeared on behalf of the respondent / assesee and as such their appeals have been taken up to decide ex parte with assistance of the Ld. Sr. Standing Counsel for the revenue.
We have heard the Ld. Sr. Standing Counsel, Sh. Zoib Hussain , Sri Praveen Bidhuri assessee in preson, Sh. Rohit Tiwari and Mohan Kalra, Advocate, Sh. Akhilesh Kumar, Advocate 7 Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM and perused the impugned orders passed by CIT(A)-I, Noida and supporting documents placed on file by the appellants / cross objectors.
Undisputedly Sri S.K. Srivastava Ld. CIT(A)-1 Noida was having jurisdiction over appeals filed under Income Tax Act pertaining to Noida-1 and Noida-2; it is also not in dispute that CIT(A)-1, Noida was having no jurisdiction over the appeals pertaining to Ghaziabad Jurisdiction.
It is also not in dispute that Sri S.K. Srivastava got compulsorily retired with effect from 11.06.2019. It is also not in dispute that on the complaint filed by Ms. Anuja Sarangi, Directorate General of Income Tax (DGIT-Vigilance) FIR bearing no. RC 1202019A0004 dated 04.07.2019 was registered by Central Bureau of Investigation (CBI), Anti Corruption Branch (ACB), Ghaziabad against Sh. S.K.Srivastava then CIT(A)- 1 and 2 Noida u/s 120–B, 420, 468 IPC and Section-7 of the Prevention of Corruption Act, 1988 (as amended in 2018) for having indulged in Acts of Omission and Commission adversarial to the interest of revenue. It is also one of the allegation in the FIR that Sri S.K. Srivastava claimed to have passed 104 orders as CIT(A)-1 and CIT(A)-2, Noida during December, 2018 but prima facie passed in the Month of June, 2019. In the backdrop of 8 Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM the aforesaid facts and circumstances of the captioned cases the sole question arises for determination in this cases is :
“as to whether impugned orders passed by Ld. CIT(A)-1 and 2 Noida are illegal, bad in law and non-est having been passed without jurisdiction in violation of CBDT notification and after his compulsory retirement (with effect from 11.06.2019 ?). 7. So far as appeals bearing A.Y.
2015-16, CO No. 49/Del/2020, A.Y. 2010-11, 6623/Del/2019, A.Y. 2015-16, A.Y. 2009-10, CO No. 152/Del/2019, A.Y. 2009-10 are concerned they are pertaining to Ghaziabad jurisdiction and only CIT(A)- Kanpur is having the jurisdiction to try and entertain the same as per CBDT notification no. 66/2014 dated 13/11/2014 read with order no. C.C IT/CCA, Kanpur-III. It is beyond comprehension as to how and under what circumstances CIT(A)-1 Noida has dealt with and disposed of these appeals pertaining to Ghaziabad which are apparently beyond his jurisdiction. From the copy of notification dated 13th November, 2014 8. issued by Central Board of Direct Taxes (CBDT) copy of order dated 15.11.2014 passed by the Chief Commissioner of Income Tax, Kanpur specifying the jurisdiction of CIT(A)s, copy of FIR No. RC 1202019A0004 dated 04.07.2019 and report on the basis of vigilance inspection qua the work and conduct of Sh.S.K.
Fit for Publication ITA No.- 6614/Del/2019 and others. Sd/- Sd/- AM JM Srivastava CIT(A)-1 Noida conducted by D.G.I.T(Vigilance), New Delhi, it is proved on record that Sri S.K.Srivastava CIT(A)- 1, Noida who was compulsorily retired w.e.f 11.06.2019 and vigilance team of Income Tax conducted vigilance inspection qua his work and conduct found following illegalities and irregularities committed by him :-
“a. Sh.Sanjay Kumar Srivastava, IRS (Retd.) (87052) while posted as / CIT(A)-, Noida with additional charge of CIT(A)-2, Noida, prior to his compulsory retirement w.e.f 11.6,2019 indulged in acts of omission and commission adversarial to the interest of revenue. b. Orders reported to have been passed by Sh.Srivastava in the month of December, 2018, were prima-facie passed in the month of June, 2019. c. All these orders liable 10 have been uploaded on ITBA system were uploaded between 11lh June to i3lh June, 2019, after his demitting the office. d. There are also indications of falsification of records to allude towards dispatch of these orders on 7th June, 2019, whereas they were dispatched on 14th June, 2019. e. Sh.Sanjay Kumar Srivastava passed 13 orders which were outside his jurisdiction. f. It was claimed that 104 orders were passed by Sh.Sanjay Kumar Srivastava during December, 2018, however many of them were uploaded to the central server using his RSA token only after his retirement. g. It is apprehended that either the orders were not passed by Sh.Sanjay Kumar Srivastava during December, 2018, or if the orders were indeed passed during . December, 2018, then the possibility of undue financial gains by delaying the issue of orders cannot be ruled out, h. It is apprehended that role of private players like contractual engages/outsourced staff in the above activities was very evident and requires in depth investigation.”