D.CI.T , CENTRAL CIRCLE - II, JALANDHAR vs. SH. SUBASH GANDHI , JALANDHAR

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER

ITA Nos.408 to 412/ASR/2017 Assessment Years : 2004-05 to 2006-07, 2009-10 & 2010-11 The DCIT, Vs. Shri Subhash Gandhi, Central Circle-II, Prop. KC. Restaurant & Hotel, Jalandhar. Banga Road, Nawanshahar. PAN: AFAPG0076R (Appellants) (Respondents)

Assessee By : None Department By : Shri S.S. Negi

Date of Hearing : 20.02.2018 Date of Pronouncement : .02.2018

ORDER PER R.S. SYAL, VP: These five appeals filed by the Revenue relate to the Assessment Years 2004-05 to 2006-07, 2009-10 & 2010-11. Since common issue is

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raised in all these appeals, we are, therefore, proceeding to dispose them

of by this consolidated order for the sake of convenience.

Assessment Year 2004-05

quashing of assessment order by the Ld. CIT(A) on the ground that the

order passed u/s 127 of the Act transferring the jurisdiction of the

assessee was not valid.

Briefly stated, the facts of the case are that the assessee is a 3.

proprietor of M/s K.C. Restaurant & Hotel assessed under the regular

jurisdiction of Assessing Officer, Nawanshahar. A search and seizure

operation was carried out u/s 132 of the Act at the premises of the

assessee on 18.02.2010. Pursuant to such search, the jurisdiction of the

assessee was transferred under the provisions of section 127 of the Act

to Central Circle-II, Jalandhar, vide order by the competent authority

dated 09.08.2010. Later on, vide order dated 28.10.2011, the competent

authority restored the transfer to the ITO, Nawanshahar. However,

subsequently, vide order dated 14.11.2011, the jurisdiction was re-

ITA Nos.408 to 412/ASR/2017

transferred to Central Circle-II, Jalandhar. Accordingly, the assessment

for the year under consideration was framed by ACIT//DCIT, Central

Circle-II, Jalandhar at a total income of Rs.2,03,480/-, against the

income returned at Rs.1,00,406/-. The assessee filed appeal before the

Ld. CIT(A) arguing that no opportunity was granted by the competent

authority before the transfer of the jurisdiction to Central Circle-II,

Jalandhar. The Ld. CIT(A) agreed with the assessee’s contention and

set aside the assessment order on the ground that the order of transfer of

the jurisdiction of the case passed u/s 127 of the Act was invalid. The

Revenue is in appeal before the Tribunal.

record. There is no appearance from the side of the assessee despite

notice. No plausible reasons have been given in the request for

adjournment, which has been rejected. It is observed that the Ld. CIT(A)

has quashed the assessment on the ground that no valid order was passed

u/s 127 of the Act by the competent authority. In this regard, it is

relevant to note that section 127 dealing with Power to transfer cases

ITA Nos.408 to 412/ASR/2017

provides through sub-section (1) that : `The Director General or Chief

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.’ Thus it is evident that the power to

transfer case lies with the Director General or Chief Commissioner or

Commissioner.

vest in it. Section 246A deals with the powers of the CIT(A). Chapter

XX of the Income-tax Act, 1961 deals with : `Appeals to the Deputy

Commissioner (Appeals) and Commissioner (Appeals). Section 246A

refers to the appealable orders before the Commissioner (Appeals). The

CIT(A) can exercise its power only in respect of such orders as are listed

in this section. Sub-section (1) dealing with the orders which can be

appealed before the CIT(A), runs as under : - 4

ITA Nos.408 to 412/ASR/2017

`(1) Any assessee or any deductor or any collector aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against— (a) an order passed by a Joint Commissioner under clause (ii) of sub- section (3) of section 115VP or an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of section 143 or sub-section (1) of section 200A or sub-section (1) of section 206CB, where the assessee or the deductor or the collector objects to the making of adjustments, or any order of assessment under sub-section (3) of section 143 [except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA or section 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; (aa) an order of assessment under sub-section (3) of section 115WE or section 115WF, where the assessee, being an employer objects to the value of fringe benefits assessed; (ab) an order of assessment or reassessment under section 115WG; (b) an order of assessment, reassessment or recomputation under section 147 [except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA]] or section 150; (ba) an order of assessment or reassessment under section 153A [except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA; (bb) an order of assessment or reassessment under sub-section (3) of section 92CD; (c) an order made under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections except an order referred to in sub-section (12) of section 144BA;

ITA Nos.408 to 412/ASR/2017

(d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made under clause (b) of sub-section (1) or under sub- section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; (ha) an order made under section 201; (hb) an order made under sub-section (6A) of section 206C; (i) an order made under section 237; (j) an order imposing a penalty under— (A) section 221; or (B) section 271, section 271A, section 271AAA, section 271AAB, section 271F, section 271FB, section 272AA or section 272BB; (C) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years; (ja) an order of imposing or enhancing penalty under sub-section (1A) of section 275; (k) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or

ITA Nos.408 to 412/ASR/2017

books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of January, 1997; (l) an order imposing a penalty under sub-section (2) of section 158BFA; (m) an order imposing a penalty under section 271B or section 271BB; (n) an order made by a Deputy Commissioner imposing a penalty under section 271C, section 271CA, section 271D or section 271E; (o) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section 272A; (p) an order made by a Deputy Commissioner imposing a penalty under section 272AA; (q) an order imposing a penalty under Chapter XXI; (r) an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the case of such person or class of persons, as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct.

passed u/s 127 of the Act is not appealable before the Ld. CIT(A). Since

the first appellate authority has no jurisdiction to decide the validity or

otherwise of an order passed u/s 127, transferring the jurisdiction from

one Assessing Officer to another, it is, but, natural that he cannot declare

any order passed u/s 127 as invalid and consequently set aside the

assessment order. Adverting to the facts of the instant case, it is 7

ITA Nos.408 to 412/ASR/2017

observed that the ld. CIT(A) crossed his jurisdiction in declaring the

order u/s 127 of the Act as invalid and as a fortiori, quashing the

assessment. The impugned order is, therefore, overturned and the matter

is restored to the file of Ld. CIT(A) for deciding the appeal on merits,

after allowing a reasonable opportunity of hearing to the assessee.

Assessment Years 2005-06, 2006-07, 2009-10 & 2010-11

mutandis similar to those of the Assessment Year 2004-05. In fact, the

order for the assessment years 2005-06 and 2006-07 was passed by the

Ld. CIT(A) in a combined manner with the order for the A.Y. 2004-05,

which we have discussed earlier. For the Assessment Years 2009-10

and 2010-11, the proceedings were initiated pursuant to reopening and

the assessments were framed u/s 153A read with section 147/148 of the

Act. In all the four years under consideration, the Ld. CIT(A) has set

aside the assessment orders on the ground that no valid order u/s 127 of

the Act was passed transferring the jurisdiction. Following the view

taken hereinabove, for the Assessment Year 2004-05, we set aside the

ITA Nos.408 to 412/ASR/2017

impugned orders and remit the matter to the file of Ld. CIT(A) for

disposing of these appeals afresh on merits, after allowing a reasonable

opportunity of being heard to the assessee.

The order pronounced in the open court on 21.02.2018.

Sd/- Sd//-

[N.K. CHOUDHRY] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT Dated, 21st February, 2018. dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, AMRITSAR.