AERO DEALCOMM PVT. LTD.,KOLKATA vs. I.T.O.,WARD-4(3), KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member) ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd………….………...........................................................……………….…......Appellant C/o. S.N. Ghosh & Associates, Advocates 2, Garstin Place 2nd Floor Suite No. 203 Off Hare Street Kolkata West Bengal – 700 001 [PAN : AACCA 5934 G] Vs. Income Tax Officer, Ward-4(3), Kolkata…………………..……………….............….……....…....Respondent Appearances by: Shri Somnath Ghosh, Advocate & Shri M. Jhawar, FCA, appeared on behalf of the assessee. Shri Jayanta Khanra, JCIT Sr. D/R, appearing on behalf of the Revenue. Date of concluding the hearing : February 26th, 2020 Date of pronouncing the order : May 29th, 2020 ORDER Per J. Sudhakar Reddy, AM :-

This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) – 19, Kolkata, (hereinafter the “ld.CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 30/07/2019 for the Assessment Year 2009-10. 2. The assessee is a company and it filed its return of income declaring total income of Rs.3,10,460/- on 29/09/2009. The return was processed u/s 143(1) of the Act. The assessment was reopened u/s 147 of the Act by issual of notice u/s 148 of the Act dt. 30/03/2017. In compliance, the assessee filed return of income on 11/04/2016, declaring the very same income as originally declared. The Assessing Officer issued notice u/s 143(2) and 143(1) of the Act and thereafter completed assessment u/s 143(3) r.w.s. 147 of the Act was completed on 13/12/2016, determining the total income at Rs.18,42,160/- interalia making an addition of Rs.15,31,700/-, as cash credit being, net income earned from Client Code Modification (CCM). Aggrieved the assessee carried the matter in appeal before the ld. First Appellate Authority. The ld. CIT(A)

2 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. rejected the arguments of the assessee, both against the reopening of the assessment as rejected the arguments of the assessee, both against the reopening of the assessment as rejected the arguments of the assessee, both against the reopening of the assessment as well as against the merits of the addition. well as against the merits of the addition. 3. Further aggrieved the assessee is in appeal before Further aggrieved the assessee is in appeal before us challenging both the us challenging both the reopening of the assessment as well as the reopening of the assessment as well as the addition made u/s 68 of the Act on merits. addition made u/s 68 of the Act on merits. 4. The ld. Counsel for the assessee, Shri Somnath Ghosh, challenged the reopening The ld. Counsel for the assessee, Shri Somnath Ghosh, challenged the reopening The ld. Counsel for the assessee, Shri Somnath Ghosh, challenged the reopening of the assessment u/s 147 of the Act of the assessment u/s 147 of the Act by submitting that, a perusal of the reasons usal of the reasons recorded, a copy of which was placed at page 97 of the paper book, reveals total non recorded, a copy of which was placed at page 97 of the paper book, reveals total non recorded, a copy of which was placed at page 97 of the paper book, reveals total non- application of mind by the Assessing Officer to the material received application of mind by the Assessing Officer to the material received application of mind by the Assessing Officer to the material received by him. He submitted that the assessee had not entered into assessee had not entered into any derivative transa transaction during the year. He submitted that the information received year. He submitted that the information received by the Assessing Officer, which by the Assessing Officer, which triggered the re-opening, was factually incorrect and the Assessing Officer should have was factually incorrect and the Assessing Officer should have was factually incorrect and the Assessing Officer should have conducted preliminary verification of the same before recording reason conducted preliminary verification of the same before recording reason conducted preliminary verification of the same before recording reasons on incorrect facts that he believes that income subject tax has escaped assessment that he believes that income subject tax has escaped assessment. He relied on the following case He relied on the following case-law for the propositions that under such circumstances, the reopening of assessment is bad in law circumstances, the reopening of assessment is bad in law :-  PCIT vs. Meenakshi Overseas P. Ltd. ( PCIT vs. Meenakshi Overseas P. Ltd. (2017) 395 ITR 677 (Del.) 2017) 395 ITR 677 (Del.)  PCIT vs. RMG P PCIT vs. RMG Polyvinyl (I) Ltd. (2017) 396 ITR 5 (Del.)  PCIT vs. G & G Pharma India Ltd. (2016) 384 ITR 147 (Del.) PCIT vs. G & G Pharma India Ltd. (2016) 384 ITR 147 (Del.) PCIT vs. G & G Pharma India Ltd. (2016) 384 ITR 147 (Del.) 4.1. He further argued that He further argued that, the letter of the DCIT, Hqs.-1, Kolkata, on behalf of on behalf of the ld. Pr. CIT-1, Kolkata addressed addressed to the Addl. CIT/Jt. CIT Range to the Addl. CIT/Jt. CIT Range-1, Kolkata, dt. 30/31.03.2016, make it clear make it clear that this approval letter was issue by the ld. Pr. CIT on was issue by the ld. Pr. CIT on 30/31.03.2016 from the stamp of the receipt section, it is clear that the approval was from the stamp of the receipt section, it is clear that the approval was from the stamp of the receipt section, it is clear that the approval was received by the Assessing Officer on 01/04/2016 and whereas notice u/s 148 of the Act Officer on 01/04/2016 and whereas notice u/s 148 of the Act Officer on 01/04/2016 and whereas notice u/s 148 of the Act was issued on 30/03/2016. This issued on 30/03/2016. This shows that the notice was issued much prior to the shows that the notice was issued much prior to the receipt of the approval of the ld. Pr. CIT of the ld. Pr. CIT by the Assessing Officer. He argued that the by the Assessing Officer. He argued that the reopening was made prior to the mandtory to the mandtory approval and hence bad in law. approval and hence bad in law. 4.1.1. He further submitted that there is non application of mind by the ld. Pr. CIT while He further submitted that there is non application of mind by the ld. Pr. CIT while He further submitted that there is non application of mind by the ld. Pr. CIT while giving approval as required u/s 151 of the Act, for the reason that, approval was issued giving approval as required u/s 151 of the Act, for the reason that, approval was issued giving approval as required u/s 151 of the Act, for the reason that, approval was issued in the case of eight (8) assessees by way of a common letter and there is no recording of ssees by way of a common letter and there is no recording of ssees by way of a common letter and there is no recording of satisfaction by the ld. Pr. CIT satisfaction by the ld. Pr. CIT as required by law, that this is a fit case for re as required by law, that this is a fit case for re-opening of

3 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. assessment. He relied on certain case . He relied on certain case-law and argued that such general approval does law and argued that such general approval does not satisfy the requirements of law. He submitted that the Assessing Officer had vide requirements of law. He submitted that the Assessing Officer had vide requirements of law. He submitted that the Assessing Officer had vide letter dt. 11/07/2016, supplied the reasons for reopening to the assessee and the letter dt. 11/07/2016, supplied the reasons for reopening to the assessee and the letter dt. 11/07/2016, supplied the reasons for reopening to the assessee and the assessee objected to the reopening vide letter dt. 18/07/2016, a copy of which is placed assessee objected to the reopening vide letter dt. 18/07/2016, a copy of which is placed assessee objected to the reopening vide letter dt. 18/07/2016, a copy of which is placed at pages 44 to 51 of the paper book. He further submitted that the assessee filed a 51 of the paper book. He further submitted that the assessee filed a 51 of the paper book. He further submitted that the assessee filed a second set of objections on 28/10/2016. He submitted that the objections were not second set of objections on 28/10/2016. He submitted that the objections were not second set of objections on 28/10/2016. He submitted that the objections were not disposed of by the Assessing Officer prior to completion of the assessment and hence disposed of by the Assessing Officer prior to completion of the assessment and hence disposed of by the Assessing Officer prior to completion of the assessment and hence the procedure laid down by the Hon’ble Apex Court in the case of own by the Hon’ble Apex Court in the case of own by the Hon’ble Apex Court in the case of G.K.N. Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC) (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC) was violated making the re was violated making the re-opening of assessment bad in law. He further relied on the judgment of the Hon’ble Bombay High . He further relied on the judgment of the Hon’ble Bombay High . He further relied on the judgment of the Hon’ble Bombay High Court in the case of Bayer Material Science P. Ltd. vs. DCIT (2016) 382 ITR 333 (Bom.) Material Science P. Ltd. vs. DCIT (2016) 382 ITR 333 (Bom.) Material Science P. Ltd. vs. DCIT (2016) 382 ITR 333 (Bom.), for the proposition that the assessment under such circumstances would be bad in law. He the proposition that the assessment under such circumstances would be bad in law. He the proposition that the assessment under such circumstances would be bad in law. He further argued that the Assessing Officer who recorded reasons and is further argued that the Assessing Officer who recorded reasons and is further argued that the Assessing Officer who recorded reasons and issued notice u/s. 148 of the Act was ITO Ward 1(1) ITO Ward 1(1)- Kolkata, who had no jurisdiction over the case of the had no jurisdiction over the case of the assessee. He submitted that later the file was transferred to ITO,Ward assessee. He submitted that later the file was transferred to ITO,Ward assessee. He submitted that later the file was transferred to ITO,Ward-4(3), Kolkata, as this officer had jurisdiction. He submitted that ITO, Ward this officer had jurisdiction. He submitted that ITO, Ward-4(3), Kolkata, without issuing 4(3), Kolkata, without issuing fresh notice or recording reasons tice or recording reasons that he is satisfied that income to tax has escaped that he is satisfied that income to tax has escaped assessment u/s 143(3) of the Act. Thus, he submitted that this renders the assessment u/s 143(3) of the Act. Thus, he submitted that this renders the assessment u/s 143(3) of the Act. Thus, he submitted that this renders the assessment order illegal and without jurisdiction. order illegal and without jurisdiction. 5. On merits, the ld. Counsel for the assessee submi On merits, the ld. Counsel for the assessee submitted that the National Stock tted that the National Stock Exchange of India (NSE) vide letter dt. 16/01/2017, has furnished information to the Exchange of India (NSE) vide letter dt. 16/01/2017, has furnished information to the Exchange of India (NSE) vide letter dt. 16/01/2017, has furnished information to the Assessing Officer in response to notice u/s 133(6) of the Act that in the case of the Assessing Officer in response to notice u/s 133(6) of the Act that in the case of the Assessing Officer in response to notice u/s 133(6) of the Act that in the case of the assessee stated that there is no stated that there is no “no client code modifications details during the period details during the period from April 01,2008 to March 31, 2009 in Capital Market and Currency Derivatives from April 01,2008 to March 31, 2009 in Capital Market and Currency Derivatives from April 01,2008 to March 31, 2009 in Capital Market and Currency Derivatives Segment”. Thus, he submits that the additions Segment”. Thus, he submits that the additions which are made in contravention of this which are made in contravention of this evidence is bad in law. He prayed for relief evidence is bad in law. He prayed for relief. 6. The ld. D/R, on the other hand, controverted the arguments of the ld. Counsel for D/R, on the other hand, controverted the arguments of the ld. Counsel for D/R, on the other hand, controverted the arguments of the ld. Counsel for the assessee and submitted that the information was received from ADIT, Inv. Unit the assessee and submitted that the information was received from ADIT, Inv. Unit the assessee and submitted that the information was received from ADIT, Inv. Unit-1(3), Ahmedabad, that the assessee company was a beneficiary by way of CCM and that the Ahmedabad, that the assessee company was a beneficiary by way of CCM and that the Ahmedabad, that the assessee company was a beneficiary by way of CCM and that the net benefit was Rs.15,31,700/ was Rs.15,31,700/-. He submitted that based on this information, the . He submitted that based on this information, the Assessing Officer recorded reasons Assessing Officer recorded reasons that he believes that income subject to tax has believes that income subject to tax has

4 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. escaped assessment and thereafter issued notice u/s 148 of the Act, reopening the and thereafter issued notice u/s 148 of the Act, reopening the and thereafter issued notice u/s 148 of the Act, reopening the assessment. He relied on the order of the ld. CIT(A) and submitted that the original assessment. He relied on the order of the ld. CIT(A) and submitted that the original assessment. He relied on the order of the ld. CIT(A) and submitted that the original return was processed u/s 143(1) of the Act and it is return was processed u/s 143(1) of the Act and it is not a case of change of opinion. He not a case of change of opinion. He relied on the case-law cited by the ld. CIT(A) in his order and submitted that at the stage law cited by the ld. CIT(A) in his order and submitted that at the stage law cited by the ld. CIT(A) in his order and submitted that at the stage of recording of reasons, the Assessing Officer need not, with proof, come to a conclusion of recording of reasons, the Assessing Officer need not, with proof, come to a conclusion of recording of reasons, the Assessing Officer need not, with proof, come to a conclusion that income subject to tax has escaped assessment. On the issue of jurisdiction, he that income subject to tax has escaped assessment. On the issue of jurisdiction, he that income subject to tax has escaped assessment. On the issue of jurisdiction, he submitted that the assessee d that the assessee has not raised this contention before the Assessing Officer before the Assessing Officer and under those circumstances, the assessment order is and under those circumstances, the assessment order is bad in law. Regarding disposal . Regarding disposal of objections, he pointed out that the ld. CIT(A) stated that objections were disposed off of objections, he pointed out that the ld. CIT(A) stated that objections were disposed off of objections, he pointed out that the ld. CIT(A) stated that objections were disposed off by the Assessing Officer in consultation with the assessment order. On the issue of by the Assessing Officer in consultation with the assessment order. On the issue of by the Assessing Officer in consultation with the assessment order. On the issue of approval u/s 151 of the Act, he submits that the dates and events prove that the approval u/s 151 of the Act, he submits that the dates and events prove that the approval u/s 151 of the Act, he submits that the dates and events prove that the approval of the ld. Pr. CIT and the issual of the notice/s 143(3) of the Act are on the approval of the ld. Pr. CIT and the issual of the notice/s 143(3) of the Act are on the approval of the ld. Pr. CIT and the issual of the notice/s 143(3) of the Act are on the same day and hence valid in law. He submits that receipt on the paper of approval by me day and hence valid in law. He submits that receipt on the paper of approval by me day and hence valid in law. He submits that receipt on the paper of approval by the Assessing Officer is not a criteria as knowledge of the approval of the the Assessing Officer is not a criteria as knowledge of the approval of the the Assessing Officer is not a criteria as knowledge of the approval of the ld. Pr. CIT by the Assessing Officer is sufficient. Assessing Officer is sufficient. 6.1. On merits, he relied on the order of th On merits, he relied on the order of the ld. CIT(A) and submitted that CCM is e ld. CIT(A) and submitted that CCM is permitted when genuine mistakes take place and whereas in this case, it is a permitted when genuine mistakes take place and whereas in this case, it is a permitted when genuine mistakes take place and whereas in this case, it is a manipulation. He submitted that this method had been used by the assessee to defraud He submitted that this method had been used by the assessee to defraud He submitted that this method had been used by the assessee to defraud the revenue. He prayed that the order of the ld. CIT(A) He prayed that the order of the ld. CIT(A) be upheld. 7. I have heard rival contentions. On careful consideration of the facts and have heard rival contentions. On careful consideration of the facts and have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, below as well as case law cited, I hold as follows:- 8. I first take up the issu first take up the issue of reopening. The reasons for reopening of the e of reopening. The reasons for reopening of the assessment as furnished by the ITO, Ward assessment as furnished by the ITO, Ward-1(1), Kolkata, to the assessee, dt. 1(1), Kolkata, to the assessee, dt. 11/07/2016, is extracted for ready reference: 11/07/2016, is extracted for ready reference:- “Sub: Scrutiny u/s. 147 of the I crutiny u/s. 147 of the I.T. Act, in respect of M/s. Aereo Dealcom .T. Act, in respect of M/s. Aereo Dealcom Private Limited, PAN- AACCA5934G for the A.Y. 2009 AACCA5934G for the A.Y. 2009-10 - matter regarding. Ref: Your letter dated 14.04.2016. Ref: Your letter dated 14.04.2016. With reference to your above letter, it is to inform you that the reason for reopening of With reference to your above letter, it is to inform you that the reason for reopening of With reference to your above letter, it is to inform you that the reason for reopening of your case is as follows: "As per information received "As per information received from the ADIT(Inv.), Unit-1 (3), Ahmedabad that the (3), Ahmedabad that the assessee company was a beneficiary by way of Client Code modification(CCM) at the time assessee company was a beneficiary by way of Client Code modification(CCM) at the time assessee company was a beneficiary by way of Client Code modification(CCM) at the time of derivative transaction in National Stock Exchange. of derivative transaction in National Stock Exchange.

5 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. The assessee thus got the benefit of net income due to Client The assessee thus got the benefit of net income due to Client Code Modification for Code Modification for the sum of Rs.15,31,700/-." ." Therefore, the Assessing Officer has reason to believe that the income of M/s. Therefore, the Assessing Officer has reason to believe that the income of M/s. Therefore, the Assessing Officer has reason to believe that the income of M/s. Allied Commotrade Pvt. Lt Allied Commotrade Pvt. Ltd to the tune of Rs. 15,31, 700/- for the relevant asstt. year has for the relevant asstt. year has T. Act.” escaped assessment and accordingl escaped assessment and accordingly the case was reopened u/s.147 of the I.T. Act.

8.1. In response to a notice u/s 133(6) of the Act, the NSE issued a letter on In response to a notice u/s 133(6) of the Act, the NSE issued a letter on In response to a notice u/s 133(6) of the Act, the NSE issued a letter on 16/01/2017 and stated as follows: 16/01/2017 and stated as follows:- “Please find no the client code modification details during the period from April 01, “Please find no the client code modification details during the period from April 01, “Please find no the client code modification details during the period from April 01, 2008 to March 31, 2009 in Capital Market and Currency Derivatives Segment. Please to March 31, 2009 in Capital Market and Currency Derivatives Segment. Please to March 31, 2009 in Capital Market and Currency Derivatives Segment. Please find the client code modification details for Futures & Options Segment as Annexure find the client code modification details for Futures & Options Segment as Annexure find the client code modification details for Futures & Options Segment as Annexure A.” 8.2. A perusal of this communication reveals that the reasons recorded by the A perusal of this communication reveals that the reasons recorded by the A perusal of this communication reveals that the reasons recorded by the Assessing Officer that the assessee was beneficiary by way of CCM in derivative icer that the assessee was beneficiary by way of CCM in derivative icer that the assessee was beneficiary by way of CCM in derivative transactions was factually incorrect. This shows non application of mind transactions was factually incorrect. This shows non application of mind transactions was factually incorrect. This shows non application of mind by the I.T.O to the information received by the Assessing Officer from the ADIT (Inv.), Unit the information received by the Assessing Officer from the ADIT (Inv.), Unit the information received by the Assessing Officer from the ADIT (Inv.), Unit-1(3), Ahmedabad. The law requires that the Assessing Officer w requires that the Assessing Officer prima facie applies his mind to applies his mind to the information received, prior to forming a reasonable belief, that income subject to tax the information received, prior to forming a reasonable belief, that income subject to tax the information received, prior to forming a reasonable belief, that income subject to tax has escaped assessment and thereafter record reasons. has escaped assessment and thereafter record reasons. When reasons are based on When reasons are based on wrong facts, which were not verified, then it is a clear case of non ich were not verified, then it is a clear case of non-application of mind by application of mind by the Assessing Officer to the material received. Thus, there is no direct nexus between the Assessing Officer to the material received. Thus, there is no direct nexus between the Assessing Officer to the material received. Thus, there is no direct nexus between the tangible material received and the formation of belief that income had escaped the tangible material received and the formation of belief that income had escaped the tangible material received and the formation of belief that income had escaped assessment and hence the reopening of assessment is bad in law. t and hence the reopening of assessment is bad in law. 8.3. The Hon’ble Delhi High Court in the case of The Hon’ble Delhi High Court in the case of Signature Hotels P. Ltd. vs. ITO (2011) Signature Hotels P. Ltd. vs. ITO (2011) 338 ITR 51 (Del.), under similar circumstances has held as follows: under similar circumstances has held as follows:- “Section 147 of the Income of the Income-tax Act, 1961 - Income escaping assessment Income escaping assessment - General - Assessment year 2003 Assessment year 2003-04 - Information given by Director of Income Information given by Director of Income- tax (Investigation), that amount received by assessee fr tax (Investigation), that amount received by assessee from other company was om other company was nothing but accommodation entry and assessee was beneficiary, was not nothing but accommodation entry and assessee was beneficiary, was not nothing but accommodation entry and assessee was beneficiary, was not sufficient to reopen assessment when Assessing Officer did not apply his, own sufficient to reopen assessment when Assessing Officer did not apply his, own sufficient to reopen assessment when Assessing Officer did not apply his, own mind to that information” mind to that information”

8.2. The Hon’ble Delhi High Court in the case of The Hon’ble Delhi High Court in the case of PCIT vs. RMG Polyvinyl (I) Ltd. (supra), G Polyvinyl (I) Ltd. (supra), has held as follows:- “Section 68, read with section , read with section 147, of the Income-tax Act, 1961 tax Act, 1961 - Cash credit (Accommodation entry) (Accommodation entry) - Assessment year 2008-09 - Information was received from Information was received from

6 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. investigation wing that assessee investigation wing that assessee-company was a beneficiary of accommodation entries pany was a beneficiary of accommodation entries received from certain established entry operators received from certain established entry operators - During investigation, it was found During investigation, it was found that entry operators were engaged in money laundering business for beneficiaries that entry operators were engaged in money laundering business for beneficiaries that entry operators were engaged in money laundering business for beneficiaries - According to Assessing Officer, source According to Assessing Officer, sources of transactions were not explained s of transactions were not explained - Notice was issued by Assessing Officer to reopen assessment on aforesaid basis that income issued by Assessing Officer to reopen assessment on aforesaid basis that income issued by Assessing Officer to reopen assessment on aforesaid basis that income chargeable to tax to extent of accommodation entry had escaped assessment chargeable to tax to extent of accommodation entry had escaped assessment chargeable to tax to extent of accommodation entry had escaped assessment - Whether information received from investigation wi information received from investigation wing could not be said to be tangible material ng could not be said to be tangible material per se without a further inquiry being undertaken by Assessing Officer to establish link per se without a further inquiry being undertaken by Assessing Officer to establish link per se without a further inquiry being undertaken by Assessing Officer to establish link between 'tangible material' and formation of reason to believe that income had between 'tangible material' and formation of reason to believe that income had between 'tangible material' and formation of reason to believe that income had escaped assessment and consequently, reasse escaped assessment and consequently, reassessment was unjustified”

8.3. The Hon’ble Delhi High Court in the case of The Hon’ble Delhi High Court in the case of PCIT vs. G & G Pharma Ltd. (supra), PCIT vs. G & G Pharma Ltd. (supra), has held as follows:- “Held that after setting out four entries, stated to have been received by the assessee Held that after setting out four entries, stated to have been received by the assessee Held that after setting out four entries, stated to have been received by the assessee on a single date, i.e., 10 on a single date, i.e., 10-2-2003, from four entities which were termed as from four entities which were termed as accommodation entries, which information was given to him by the Directorate of accommodation entries, which information was given to him by the Directorate of accommodation entries, which information was given to him by the Directorate of Investigation, the Assessing Officer stated that he had also perused various materials Investigation, the Assessing Officer stated that he had also perused various materials Investigation, the Assessing Officer stated that he had also perused various materials and report from Investigation Wing and on that ba and report from Investigation Wing and on that basis it was evident that the assessee sis it was evident that the assessee- company had introduced its own unaccounted money in its bank account by way of company had introduced its own unaccounted money in its bank account by way of company had introduced its own unaccounted money in its bank account by way of above accommodation entries. The above conclusion is unhelpful in understanding above accommodation entries. The above conclusion is unhelpful in understanding above accommodation entries. The above conclusion is unhelpful in understanding whether the Assessing Officer applied his mind to the materi whether the Assessing Officer applied his mind to the materials that he talks about als that he talks about particularly since he did not describe what those materials were. Once the date on particularly since he did not describe what those materials were. Once the date on particularly since he did not describe what those materials were. Once the date on which the so called accommodation entries were provided is known, it would not have which the so called accommodation entries were provided is known, it would not have which the so called accommodation entries were provided is known, it would not have been difficult for the Assessing Officer, if he had in fact under been difficult for the Assessing Officer, if he had in fact undertaken the exercise, to taken the exercise, to make a reference to the manner in which those very entries were provided in the make a reference to the manner in which those very entries were provided in the make a reference to the manner in which those very entries were provided in the accounts of the assessee, which must have been tendered along with the return, which accounts of the assessee, which must have been tendered along with the return, which accounts of the assessee, which must have been tendered along with the return, which was processed under section 143(3).Without forming a prima facie opi was processed under section 143(3).Without forming a prima facie opi was processed under section 143(3).Without forming a prima facie opinion, on the basis of such material, it was not possible for the Assessing Officer to have simply basis of such material, it was not possible for the Assessing Officer to have simply basis of such material, it was not possible for the Assessing Officer to have simply concluded that the assessee company has introduced its own unaccounted money in its concluded that the assessee company has introduced its own unaccounted money in its concluded that the assessee company has introduced its own unaccounted money in its bank by way of accommodation entries. Thus, the reassessment order was not bank by way of accommodation entries. Thus, the reassessment order was not bank by way of accommodation entries. Thus, the reassessment order was not valid.”

7 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. Petitioner only on 19th March, 2 Petitioner only on 19th March, 2015 and the Petitioner had filed the objections to the 015 and the Petitioner had filed the objections to the same on 25th March, 2015. This passing of the draft Assessment order without same on 25th March, 2015. This passing of the draft Assessment order without same on 25th March, 2015. This passing of the draft Assessment order without having disposed of the objections is in defiance of the Supreme Court's decision in having disposed of the objections is in defiance of the Supreme Court's decision in having disposed of the objections is in defiance of the Supreme Court's decision in GKN Driveshafts (India) Ltd. (supra). Th GKN Driveshafts (India) Ltd. (supra). Thus, the draft Assessment order dated 30th us, the draft Assessment order dated 30th March, 2015 is not sustainable being without jurisdiction. This for the reason that it March, 2015 is not sustainable being without jurisdiction. This for the reason that it March, 2015 is not sustainable being without jurisdiction. This for the reason that it has been passed without disposing of the objections filed by the Petitioner to the has been passed without disposing of the objections filed by the Petitioner to the has been passed without disposing of the objections filed by the Petitioner to the reasons recorded in support of their impugne reasons recorded in support of their impugned notice. Accordingly, we set aside the d notice. Accordingly, we set aside the draft Assessment order dated 30th March, 2015. We are not dealing the validity of draft Assessment order dated 30th March, 2015. We are not dealing the validity of draft Assessment order dated 30th March, 2015. We are not dealing the validity of the reasons in support of the impugned notice in the present facts as the time limit to the reasons in support of the impugned notice in the present facts as the time limit to the reasons in support of the impugned notice in the present facts as the time limit to pass the Assessment order as provided under 4t pass the Assessment order as provided under 4th Proviso to sub-section(2) of Section section(2) of Section 153 of the Act has already expired when the petition was filed. 153 of the Act has already expired when the petition was filed.”

10.2. The Hon’ble Bombay High Court in the case of The Hon’ble Bombay High Court in the case of Mohanlal Champalal Jain vs. ITO Mohanlal Champalal Jain vs. ITO reported in [2019] 102 taxmann.com 293 (Bombay) reported in [2019] 102 taxmann.com 293 (Bombay) under similar circumstances has held under similar circumstances has held as follows:- “IT : Where Assessing Officer issued a reopening notice on ground that “IT : Where Assessing Officer issued a reopening notice on ground that “IT : Where Assessing Officer issued a reopening notice on ground that assessee had made transactions of huge amount in national/multi assessee had made transactions of huge amount in national/multi assessee had made transactions of huge amount in national/multi commodity exchange but he had not filed his return of income and asses commodity exchange but he had not filed his return of income and asses commodity exchange but he had not filed his return of income and assessee filed an objection that he had earned no income out of trading in commodity filed an objection that he had earned no income out of trading in commodity filed an objection that he had earned no income out of trading in commodity exchange and he had actually suffered loss and, therefore, he had not filed exchange and he had actually suffered loss and, therefore, he had not filed exchange and he had actually suffered loss and, therefore, he had not filed return of income, since, Assessing Officer had not looked into objections return of income, since, Assessing Officer had not looked into objections return of income, since, Assessing Officer had not looked into objections raised by assessee and pro raised by assessee and proceeded ahead, impugned reassessment notice was ceeded ahead, impugned reassessment notice was unjustified” 10.3. The Hon’ble Gujarat High Court in the case of Vishwanath Engineers vs. ACIT The Hon’ble Gujarat High Court in the case of Vishwanath Engineers vs. ACIT The Hon’ble Gujarat High Court in the case of Vishwanath Engineers vs. ACIT reported in [2013] 352 ITR 549 (Guj.) held as follows: reported in [2013] 352 ITR 549 (Guj.) held as follows:- “Thereafter, Assessing Officer issued notice under section 148 on ground that “Thereafter, Assessing Officer issued notice under section 148 on ground that “Thereafter, Assessing Officer issued notice under section 148 on ground that assessee was only a work contractor and, thus, was not entitled to deduction under assessee was only a work contractor and, thus, was not entitled to deduction under assessee was only a work contractor and, thus, was not entitled to deduction under section 80-IB - Assessee raised objection to notice Assessee raised objection to notice - Assessing Officer passed Assessing Officer passed reassessment ord reassessment order without disposing of such objections - Whether Assessing Officer Whether Assessing Officer acted without jurisdiction in initiating proceedings for reassessment in spite of non acted without jurisdiction in initiating proceedings for reassessment in spite of non acted without jurisdiction in initiating proceedings for reassessment in spite of non- existence of required conditions specified under Act and, therefore, reassessment existence of required conditions specified under Act and, therefore, reassessment existence of required conditions specified under Act and, therefore, reassessment [Emphasis ours] proceedings and cons proceedings and consequent reassessment order were to be quashed” [Emphasis ours]

10.4. Similar view was taken by the Hon’ble Gujarat High Court in the case of Similar view was taken by the Hon’ble Gujarat High Court in the case of Similar view was taken by the Hon’ble Gujarat High Court in the case of Arvind Mills Ltd. v. Assistant Commissioner of Wealth Mills Ltd. v. Assistant Commissioner of Wealth-tax [2004] 141 TAXMAN 210 (GUJ.) [2004] 141 TAXMAN 210 (GUJ.) 11. As the Assessing Officer has not disposed off the objections raised by the assessee Officer has not disposed off the objections raised by the assessee Officer has not disposed off the objections raised by the assessee to the reopening of assessment till date. Hence the reassessment order is bad in law. to the reopening of assessment till date. Hence the reassessment order is bad in law. to the reopening of assessment till date. Hence the reassessment order is bad in law. 12. On the issue of jurisdiction, I find that it is admitted fact that the ITO, Ward On the issue of jurisdiction, I find that it is admitted fact that the ITO, Ward On the issue of jurisdiction, I find that it is admitted fact that the ITO, Ward-4(3), Kolkata, has jurisdiction over the jurisdiction over the assessee. While so, the reasons for reopening was assessee. While so, the reasons for reopening was recorded by ITO Ward-1(1), Kolkata 1(1), Kolkata. Notice of reopening of assessment was issued by . Notice of reopening of assessment was issued by this officer i.e., ITO Ward-1(1), Kolkata 1(1), Kolkata. This Bench of the Tribunal in the case of . This Bench of the Tribunal in the case of M/s.

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. Rungta Irrigation Limited vs. ACIT in ITA No. 1224/Kol/2019, order dt. 06/09/2019 rigation Limited vs. ACIT in ITA No. 1224/Kol/2019, order dt. 06/09/2019 rigation Limited vs. ACIT in ITA No. 1224/Kol/2019, order dt. 06/09/2019, under similar circumstances held as follows: similar circumstances held as follows:- “13. For understanding the legal position with regard to the jurisdiction of Income For understanding the legal position with regard to the jurisdiction of Income For understanding the legal position with regard to the jurisdiction of Income tax authorities, it is pertinent to make reference t tax authorities, it is pertinent to make reference to provisions of Section 120, 124, 127 o provisions of Section 120, 124, 127 and 129 of the Act which are reproduced herein below: and 129 of the Act which are reproduced herein below: 120. Jurisdiction of income Jurisdiction of income- tax authorities (1) Income- tax authorities shall exercise all or any of the tax authorities shall exercise all or any of the powers and perform all or any of the powers and perform all or any of the functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in functions Conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and accordance with such directions as the Board may issue for the exercise of the powers and accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions performance of the functions by all or any of those authorities. (2) The directions of the Board under sub The directions of the Board under sub- section (1) may authorise any other income section (1) may authorise any other income- tax authority to issue orders in writing for the exercise of the powers and perfor authority to issue orders in writing for the exercise of the powers and performance of the functions mance of the functions by all or any of the other income by all or any of the other income- tax authorities who are subordinate to it. (3) In issuing the directions or orders referred to in sub In issuing the directions or orders referred to in sub- sections (1) and (2), the Board or other sections (1) and (2), the Board or other income- tax authority authorised by it may have regard to any one or more of the following tax authority authorised by it may have regard to any one or more of the following tax authority authorised by it may have regard to any one or more of the following criteria, namely:- (a) territorial area; territorial area; (b) persons or classes persons or classes of persons; (c) incomes or classes of income; and incomes or classes of income; and (d) cases or classes of cases. cases or classes of cases. (4) Without prejudic Without prejudice to the provisions of sub- sections (1) and (2), the Board may, by general or sections (1) and (2), the Board may, by general or special order, and subject to such conditions, restrictions or limitations as may be specified special order, and subject to such conditions, restrictions or limitations as may be specified special order, and subject to such conditions, restrictions or limitations as may be specified therein,- (a) authorise any Di authorise any Director General or Director to perform such functions of any other income rector General or Director to perform such functions of any other income- tax authority as may be assigned to him by the Board; authority as may be assigned to him by the Board; (b) empower the Director General or Chief Commissioner or Commissioner to is empower the Director General or Chief Commissioner or Commissioner to is empower the Director General or Chief Commissioner or Commissioner to issue orders in writing that the powers and functions conferred on, or as the case may be, assigned to, the writing that the powers and functions conferred on, or as the case may be, assigned to, the writing that the powers and functions conferred on, or as the case may be, assigned to, the Assessing Officer by or under this Act in respect of any specified area or persons or classes of Assessing Officer by or under this Act in respect of any specified area or persons or classes of Assessing Officer by or under this Act in respect of any specified area or persons or classes of persons or incomes or classes of persons or incomes or classes of (5) The directions and orders referred to in sub The directions and orders referred to in sub- sections (1) and (2) may, wherever considered sections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing necessary or appropriate for the proper management of the work, require two or more Assessing necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to exercise and perform, Officers (whether or not of the same class) to exercise and perform, concurrently, the powers and concurrently, the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or functions in respect of any area or persons or classes of persons or incomes or classes of income or functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed cases or classes of cases; and, where such powers and functions are exercised and performed cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Offi concurrently by the Assessing Officers of different classes, any authority lower in rank amongst cers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them them shall exercise the powers and perform the functions as any higher authority amongst them them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made may direct, and, further, references in any other provision of this Act or in any rule made may direct, and, further, references in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and der to the Assessing Officer shall be deemed to be references to such higher authority and der to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. any provision of this Act requiring approval or sanction of any such authority shall not apply. any provision of this Act requiring approval or sanction of any such authority shall not apply.

(6) Notwithstanding anything contained in any direction or order issued under this section, or in g anything contained in any direction or order issued under this section, or in g anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette,, direct that for the purpose of section 124, the Board may, by notification in the Official Gazette,, direct that for the purpose of section 124, the Board may, by notification in the Official Gazette,, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing u furnishing of the return of income or the doing of any other act or thing under this Act or any rule nder this Act or any rule made thereunder by any person or class of persons, the income made thereunder by any person or class of persons, the income- tax authority exercising and tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such performing the powers and functions in relation to the said person or class of persons shall be such performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the authority as may be specified in the notification.

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 124. Jurisdiction of Assessing Officers Jurisdiction of Assessing Officers (1) Where by virtue of any direction or order issued under sub Where by virtue of any direction or order issued under sub- section (1) or sub section (1) or sub- section (2) of section 120, the Assessing Officer has beenvested section 120, the Assessing Officer has beenvested with jurisdiction over any area, within the limits with jurisdiction over any area, within the limits of such area, he shall have jurisdiction of such area, he shall have jurisdiction- (a) in respect of any person carrying on a business or profession, if the place at which he carries on in respect of any person carrying on a business or profession, if the place at which he carries on in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried s or profession is situate within the area, or where his business or profession is carried s or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the on in more places than one, if the principal place of his business or profession is situate within the on in more places than one, if the principal place of his business or profession is situate within the area, and (b) in respect of any other person residing within the area. in respect of any other person residing within the area. (2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction Where a question arises under this section as to whether an Assessing Officer has jurisdiction Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be d to assess any person, the question shall be determined by the Director General or the Chief etermined by the Director General or the Chief Commissioner or the Commissioner; or where the question is one relating to areas within the Commissioner or the Commissioner; or where the question is one relating to areas within the Commissioner or the Commissioner; or where the question is one relating to areas within the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the Directors General or Chie Directors General or Chief Commissioners or Commissioners concerned or, if they are not in f Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer No person shall be entitled to call in question the jurisdiction of an Assessing Officer No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub where he has made a return under sub- section (1) of section 139, after the expiry of o section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub from the date on which he was served with a notice under sub- section (1) of section 142 or section (1) of section 142 or subsection (2) of section 143 or after the completion of the assessment, whichever is earlier; subsection (2) of section 143 or after the completion of the assessment, whichever is earlier; subsection (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under sub e he has made no such return, after the expiry of the time allowed by the notice under sub e he has made no such return, after the expiry of the time allowed by the notice under sub- section (1) of section 142 or under section 148 for the Making of the return or by the notice under section (1) of section 142 or under section 148 for the Making of the return or by the notice under section (1) of section 142 or under section 148 for the Making of the return or by the notice under the first proviso to section 144 to show cause why the assessmen the first proviso to section 144 to show cause why the assessment should not be completed to the t should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. best of the judgment of the Assessing Officer, whichever is earlier. (c) where an action has been taken under section 132 or section 132A, after the expiry of one (c) where an action has been taken under section 132 or section 132A, after the expiry of one (c) where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice und month from the date on which he was served with a notice under sub-section (1) of section 153A or section (1) of section 153A or sub-section (2) of section 153C or after the completion of the assessment, whichever is earlier.) section (2) of section 153C or after the completion of the assessment, whichever is earlier.) section (2) of section 153C or after the completion of the assessment, whichever is earlier.) (4) Subject to the provisions of sub Subject to the provisions of sub- section (3), where an assessee calls in question the jurisdiction calls in question the jurisdiction of an- Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub claim, refer the matter for determination under sub- section (2) before the assessment is made. section (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under Notwithstanding anything contained in this section or in any direction or order issued under Notwithstanding anything contained in this section or in any direction or order issued under section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respec Assessing Officer in respect of the income accruing or arising or received within the area, if any, t of the income accruing or arising or received within the area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders issued under over which he has been vested with jurisdiction by virtue of the directions or orders issued under over which he has been vested with jurisdiction by virtue of the directions or orders issued under sub- section (1) or sub section (1) or sub- section (2) of section 120.]

10 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; recording his reasons for doing so, pass the order; (b) where the Directors (b) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such agreement, the order transferring the case may, similarly, be passed by the Board or any such agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in Director General or Chief Commissioner or Commissioner as the Board may, by notification in Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. Official Gazette, authorise in this behalf. (3) Nothing in sub- -section (1) or sub-section (2) shall be deemed to require any such opportunity 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 to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or 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 ncurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with ncurrent 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, or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, 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 (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the section (2) may be made at any stage of the proceedings, and shall not render necessary the re proceedings, and shall not render necessary the re-issue of any notice already issued by the issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. Assessing Officer or Assessing Officers from whom the case is transferred. Explanation: In section 120 section 120 and this section, the word "case", in relation to any person whose 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 name is specified in any order or direction issued thereunder, means all proceedings under this Act 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 respect of any year which may be pending on the date of such order or direction or which may 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 have been completed on or before such date, and includes also all proceedings under this Act which 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 r may be commenced after the date of such order or direction in respect of any year. espect of any year.

11 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. person then it would be decided by the authorities as stipulated in sub person then it would be decided by the authorities as stipulated in sub person then it would be decided by the authorities as stipulated in sub-section (2) of section 124 of the Act by Directors General or Chief Commissio section 124 of the Act by Directors General or Chief Commissioners or Commissioners, by ners or Commissioners, by the Directors General or Chief Commissioners or Commissioners concerned, as the case the Directors General or Chief Commissioners or Commissioners concerned, as the case the Directors General or Chief Commissioners or Commissioners concerned, as the case may be). In case, if the question is one relating to areas within the jurisdiction of may be). In case, if the question is one relating to areas within the jurisdiction of may be). In case, if the question is one relating to areas within the jurisdiction of different Income tax authorities(Directors General or Chie different Income tax authorities(Directors General or Chief Commissioners or f Commissioners or Commissioners, by the Directors General or Chief Commissioners or Commissioners as Commissioners, by the Directors General or Chief Commissioners or Commissioners as Commissioners, by the Directors General or Chief Commissioners or Commissioners as stipulated therein) then if the other Income stipulated therein) then if the other Income-tax authority also agrees then the question tax authority also agrees then the question will be resolved mutually or else it will be referred to the CBDT will be resolved mutually or else it will be referred to the CBDT. So, once the AO of an . So, once the AO of an assessee is vested with the jurisdiction u/s. 124 read with sec. 120(1) & (2) of the Act and assessee is vested with the jurisdiction u/s. 124 read with sec. 120(1) & (2) of the Act and assessee is vested with the jurisdiction u/s. 124 read with sec. 120(1) & (2) of the Act and issues statutory notices against an assessee, no person (assessee) shall be entitled to call issues statutory notices against an assessee, no person (assessee) shall be entitled to call issues statutory notices against an assessee, no person (assessee) shall be entitled to call in question the jurisdiction of an AO within in question the jurisdiction of an AO within the period prescribed under clauses (a), (b) the period prescribed under clauses (a), (b) and (c) of section 124(3) of the Act. We also note that sec. 124(5) saves the action of the and (c) of section 124(3) of the Act. We also note that sec. 124(5) saves the action of the and (c) of section 124(3) of the Act. We also note that sec. 124(5) saves the action of the AO who has territorial jurisdiction over the assessee in respect of the income earned by AO who has territorial jurisdiction over the assessee in respect of the income earned by AO who has territorial jurisdiction over the assessee in respect of the income earned by the assessee from the territo the assessee from the territorial jurisdiction vested in him by virtue of any directions or rial jurisdiction vested in him by virtue of any directions or orders issued u/s. 120(1) or (2) of the Act. So, this saving provision which saves the orders issued u/s. 120(1) or (2) of the Act. So, this saving provision which saves the orders issued u/s. 120(1) or (2) of the Act. So, this saving provision which saves the action of an AO is limited to the income accruing or arising or received within the limits action of an AO is limited to the income accruing or arising or received within the limits action of an AO is limited to the income accruing or arising or received within the limits of his territorial area as conferred to him (AO) by order under sub rial area as conferred to him (AO) by order under sub-sec. (1) or (2) of sec. sec. (1) or (2) of sec. 120 of the Act and not otherwise. So, this saving provision will come into play only in the 120 of the Act and not otherwise. So, this saving provision will come into play only in the 120 of the Act and not otherwise. So, this saving provision will come into play only in the first place the AO is vested with the jurisdiction by an order/direction issued under first place the AO is vested with the jurisdiction by an order/direction issued under first place the AO is vested with the jurisdiction by an order/direction issued under sub- sec. (1) or (2) of sec. 120 of the Act. Thus, as per the scheme of the Act, it can be seen that sec. (1) or (2) of sec. 120 of the Act. Thus, as per the scheme of the Act, it can be seen that sec. (1) or (2) of sec. 120 of the Act. Thus, as per the scheme of the Act, it can be seen that sections 120 and 124 vest jurisdiction on Income Tax Authorities and on AO respectively sections 120 and 124 vest jurisdiction on Income Tax Authorities and on AO respectively sections 120 and 124 vest jurisdiction on Income Tax Authorities and on AO respectively and, therefore, both sections i.e. sections 120 and 124 of the Act m and, therefore, both sections i.e. sections 120 and 124 of the Act m and, therefore, both sections i.e. sections 120 and 124 of the Act must be read in conjunction and harmoniously to decide the territorial jurisdiction which is prescribed conjunction and harmoniously to decide the territorial jurisdiction which is prescribed conjunction and harmoniously to decide the territorial jurisdiction which is prescribed by the direction or orders by the CBDT under sub by the direction or orders by the CBDT under sub-sec. (1) or (2) of sec. 120 of the Act. sec. (1) or (2) of sec. 120 of the Act.

12 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. jurisdictional AO had left. Here, it would jurisdictional AO had left. Here, it would be important to note the Explanation to section be important to note the Explanation to section 127 defines the expression ‘case’. A reading of the said Explanation shows that the 127 defines the expression ‘case’. A reading of the said Explanation shows that the 127 defines the expression ‘case’. A reading of the said Explanation shows that the expression ‘case’ in relation to any person, whose name is specified in the transfer order expression ‘case’ in relation to any person, whose name is specified in the transfer order expression ‘case’ in relation to any person, whose name is specified in the transfer order passed u/s. 127 of the Act, mean passed u/s. 127 of the Act, means all proceedings under the Act in respect of any year s all proceedings under the Act in respect of any year which may be pending on the date of such order or direction or it may have been which may be pending on the date of such order or direction or it may have been which may be pending on the date of such order or direction or it may have been completed on or before such date, and includes also all proceedings under the Income completed on or before such date, and includes also all proceedings under the Income completed on or before such date, and includes also all proceedings under the Income- tax Act which may be commenced after tax Act which may be commenced after the date of such order or direction of any year. the date of such order or direction of any year. This definition of the expression ‘case’ implies that, once a transfer is made by the This definition of the expression ‘case’ implies that, once a transfer is made by the This definition of the expression ‘case’ implies that, once a transfer is made by the authority specified in sub authority specified in sub-section (1) or (2) of section 127 of the Act who had the section (1) or (2) of section 127 of the Act who had the jurisdiction over an AO who in turn jurisdiction over an AO who in turn had jurisdiction over the assessee/person/entity, by had jurisdiction over the assessee/person/entity, by virtue of direction/order issued under section 120(1) or (2) of the Act, then the entire virtue of direction/order issued under section 120(1) or (2) of the Act, then the entire virtue of direction/order issued under section 120(1) or (2) of the Act, then the entire assessment of the person i.e. pre assessment of the person i.e. pre-transfer and post-transfer as on date of transfer will transfer as on date of transfer will stand transferred and th stand transferred and thereafter for all purposes of the Income Tax Act, the AO of the ereafter for all purposes of the Income Tax Act, the AO of the assessee to whom the case is transferred, will be the Assessing Officer in respect of the assessee to whom the case is transferred, will be the Assessing Officer in respect of the assessee to whom the case is transferred, will be the Assessing Officer in respect of the said the assessee for pre and post proceedings from the date of transfer. In other words, said the assessee for pre and post proceedings from the date of transfer. In other words, said the assessee for pre and post proceedings from the date of transfer. In other words, once transfer order of a case of an assessee is issued u/s. 127 of the Act the effect will be r order of a case of an assessee is issued u/s. 127 of the Act the effect will be r order of a case of an assessee is issued u/s. 127 of the Act the effect will be that (i) all the proceedings of the assessee under the Act in respect of any year which that (i) all the proceedings of the assessee under the Act in respect of any year which that (i) all the proceedings of the assessee under the Act in respect of any year which may be pending on the date of such order will stand transferred, (ii) all the complete may be pending on the date of such order will stand transferred, (ii) all the complete may be pending on the date of such order will stand transferred, (ii) all the completed assessment order of the assessee on or before the date of transfer will stand transferred assessment order of the assessee on or before the date of transfer will stand transferred assessment order of the assessee on or before the date of transfer will stand transferred and (iii) all proceedings under the Act in respect of the assessee which may be and (iii) all proceedings under the Act in respect of the assessee which may be and (iii) all proceedings under the Act in respect of the assessee which may be commenced after the date of such transfer order have to be undertaken by the commenced after the date of such transfer order have to be undertaken by the commenced after the date of such transfer order have to be undertaken by the transferred new AO. 16. In the light of the above discussion, we now examine the facts involved in the In the light of the above discussion, we now examine the facts involved in the In the light of the above discussion, we now examine the facts involved in the appellant’s case and ascertain whether the ACIT, Circle 21(1), New Delhi enjoyed appellant’s case and ascertain whether the ACIT, Circle 21(1), New Delhi enjoyed appellant’s case and ascertain whether the ACIT, Circle 21(1), New Delhi enjoyed concurrent jurisdiction over the appellant’s case so as to enable him to issue concurrent jurisdiction over the appellant’s case so as to enable him to issue concurrent jurisdiction over the appellant’s case so as to enable him to issue a valid notice u/s 143(2) for the AY 2015 notice u/s 143(2) for the AY 2015-16. As noted, the jurisdiction over the appellant’s case 16. As noted, the jurisdiction over the appellant’s case initially vested with the ACIT, Circle 15(1), New Delhi since the territorial jurisdiction initially vested with the ACIT, Circle 15(1), New Delhi since the territorial jurisdiction initially vested with the ACIT, Circle 15(1), New Delhi since the territorial jurisdiction over area or limits of area, where assessee’s principal office wa over area or limits of area, where assessee’s principal office was situated. The vesting of s situated. The vesting of jurisdiction with the said officer was in terms of the order/ direction of the CBDT u/s. jurisdiction with the said officer was in terms of the order/ direction of the CBDT u/s. jurisdiction with the said officer was in terms of the order/ direction of the CBDT u/s. 120(1) of the Act or by Income Tax Authorities (sec. 116) who were delegated the 120(1) of the Act or by Income Tax Authorities (sec. 116) who were delegated the 120(1) of the Act or by Income Tax Authorities (sec. 116) who were delegated the powers to issue orders/directions vesting the jurisdiction powers to issue orders/directions vesting the jurisdiction of assessment over the of assessment over the authorities subordinate to it. The said Assessing Officer at New Delhi enjoyed exclusive authorities subordinate to it. The said Assessing Officer at New Delhi enjoyed exclusive authorities subordinate to it. The said Assessing Officer at New Delhi enjoyed exclusive jurisdiction over the appellant upto 08.10.2008. Thereafter, by virtue of order u/s 127(2) jurisdiction over the appellant upto 08.10.2008. Thereafter, by virtue of order u/s 127(2) jurisdiction over the appellant upto 08.10.2008. Thereafter, by virtue of order u/s 127(2) passed by the ld. CIT-V, Delhi dated 08.10.2008, the V, Delhi dated 08.10.2008, the said AO at New Delhi was divested of said AO at New Delhi was divested of his jurisdiction over the appellant and the jurisdiction stood transferred in favour of his jurisdiction over the appellant and the jurisdiction stood transferred in favour of his jurisdiction over the appellant and the jurisdiction stood transferred in favour of ACIT, Central Circle-1, Ranchi. From the plain reading of the order u/s 127(2) dated 1, Ranchi. From the plain reading of the order u/s 127(2) dated 1, Ranchi. From the plain reading of the order u/s 127(2) dated 08.10.2008, we find that the transfer of juris 08.10.2008, we find that the transfer of jurisdiction over the appellant’s case from the diction over the appellant’s case from the charge of ACIT, 15(1), New Delhi to ACIT, Central Circle charge of ACIT, 15(1), New Delhi to ACIT, Central Circle-1, Ranchi was absolute and 1, Ranchi was absolute and without reserving any right of concurrent jurisdiction over the appellant at New Delhi. without reserving any right of concurrent jurisdiction over the appellant at New Delhi. without reserving any right of concurrent jurisdiction over the appellant at New Delhi.

13 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd.

Sec. 124(5):- Notwithstanding anything contained in this section or in any Notwithstanding anything contained in this section or in any Notwithstanding anything contained in this section or in any direction or order issued under section 120, every Assessing Officer shall have all the powers conferred by or under issued under section 120, every Assessing Officer shall have all the powers conferred by or under issued under section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the this Act on an Assessing Officer in respect of the income accruing or arising or received within the this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders vested with jurisdiction by virtue of the directions or orders issued under sub- section (1) or sub section (1) or sub- section (2) of section 120. Sec. 127(4):- The transfer of a case under sub The transfer of a case under sub-section (1) or sub-section (2) may be made at any section (2) may be made at any stage of the proceedings, and stage of the proceedings, and shall not render necessary the re-issue of any notice already issued issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. by the Assessing Officer or Assessing Officers from whom the case is transferred. by the Assessing Officer or Assessing Officers from whom the case is transferred. Explanation: In section 120 section 120 and this section, the word "case", in relation to any person whose 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 name is specified in any order or direction issued thereunder, means all proceedings under this Act 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 dir in respect of any year which may be pending on the date of such order or dir 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 have been completed on or before such date, and includes also all proceedings under this Act which 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. may be commenced after the date of such order or direction in respect of any year. may be commenced after the date of such order or direction in respect of any year.

14 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. immediate effect. Pursuant to such an order, the DC immediate effect. Pursuant to such an order, the DCIT, Central Circle Ranchi became the IT, Central Circle Ranchi became the AO who alone had valid jurisdiction over the appellant’s ‘case’ till even he was divested AO who alone had valid jurisdiction over the appellant’s ‘case’ till even he was divested AO who alone had valid jurisdiction over the appellant’s ‘case’ till even he was divested of such jurisdiction by virtue of an order passed u/s. 127(2)by thePr.CIT, Central, Patna of such jurisdiction by virtue of an order passed u/s. 127(2)by thePr.CIT, Central, Patna of such jurisdiction by virtue of an order passed u/s. 127(2)by thePr.CIT, Central, Patna dated 03.11.2017 as per which the juris dated 03.11.2017 as per which the jurisdiction stood transferred to the ACIT, Central diction stood transferred to the ACIT, Central Circle 3(1) Kolkata. We are therefore of the firm opinion that in June 2016 when the Circle 3(1) Kolkata. We are therefore of the firm opinion that in June 2016 when the Circle 3(1) Kolkata. We are therefore of the firm opinion that in June 2016 when the notice u/s 143(2) was issued, it was the ACIT, Central Circle 1, Ranchi alone enjoyed sole notice u/s 143(2) was issued, it was the ACIT, Central Circle 1, Ranchi alone enjoyed sole notice u/s 143(2) was issued, it was the ACIT, Central Circle 1, Ranchi alone enjoyed sole jurisdiction over the appellant’s jurisdiction over the appellant’s ‘case’ and in that view of the matter it was only this AO ‘case’ and in that view of the matter it was only this AO who could have issued a valid notice u/s 143(2) for the relevant AY 2015 who could have issued a valid notice u/s 143(2) for the relevant AY 2015 who could have issued a valid notice u/s 143(2) for the relevant AY 2015-16. We therefore have no quarrel with the proposition put forth by the ld. CIT, DR that when the therefore have no quarrel with the proposition put forth by the ld. CIT, DR that when the therefore have no quarrel with the proposition put forth by the ld. CIT, DR that when the ACIT, Central Circle 3(1), ACIT, Central Circle 3(1), Kolkata received the ‘case’ records in terms of the order u/s Kolkata received the ‘case’ records in terms of the order u/s 127(2) dated 03.11.2017, he had no obligation to issue a fresh notice u/s 143(2) because 127(2) dated 03.11.2017, he had no obligation to issue a fresh notice u/s 143(2) because 127(2) dated 03.11.2017, he had no obligation to issue a fresh notice u/s 143(2) because he could have continued with the assessment proceedings from the stage at which his he could have continued with the assessment proceedings from the stage at which his he could have continued with the assessment proceedings from the stage at which his predecessor would hav predecessor would have left. However this legal proposition pre-supposes that the supposes that the original notice u/s 143(2) was issued by an officer who held valid jurisdiction over the original notice u/s 143(2) was issued by an officer who held valid jurisdiction over the original notice u/s 143(2) was issued by an officer who held valid jurisdiction over the ‘case’ of the assessee. We however find that although in June 2016, the jurisdiction over ‘case’ of the assessee. We however find that although in June 2016, the jurisdiction over ‘case’ of the assessee. We however find that although in June 2016, the jurisdiction over the assessee’s case was vested in ACIT, Central Circle 1, Ranchi, he never issued notice ase was vested in ACIT, Central Circle 1, Ranchi, he never issued notice ase was vested in ACIT, Central Circle 1, Ranchi, he never issued notice u/s 143(2). On the contrary the notice was issued by the ACIT, Circle 21(1), Delhi who, as u/s 143(2). On the contrary the notice was issued by the ACIT, Circle 21(1), Delhi who, as u/s 143(2). On the contrary the notice was issued by the ACIT, Circle 21(1), Delhi who, as held earlier, ceased to have jurisdiction over the appellant’s case after 08.10.2008. Since held earlier, ceased to have jurisdiction over the appellant’s case after 08.10.2008. Since held earlier, ceased to have jurisdiction over the appellant’s case after 08.10.2008. Since no notice u/s. 143(2) was issued by the AO, Ranchi within the stipulated time, sub no notice u/s. 143(2) was issued by the AO, Ranchi within the stipulated time, sub no notice u/s. 143(2) was issued by the AO, Ranchi within the stipulated time, sub- section (4) of sec. 127 of the Act does not come to the rescue of the department. As noted section (4) of sec. 127 of the Act does not come to the rescue of the department. As noted section (4) of sec. 127 of the Act does not come to the rescue of the department. As noted earlier, the AO, Delhi ceased to be AO of assessee after the transfer order was pa earlier, the AO, Delhi ceased to be AO of assessee after the transfer order was pa earlier, the AO, Delhi ceased to be AO of assessee after the transfer order was passed by CIT-V, Delhi on 08.10.2008, so after such order by the competent authority (which fact is V, Delhi on 08.10.2008, so after such order by the competent authority (which fact is V, Delhi on 08.10.2008, so after such order by the competent authority (which fact is not disputed before us), then the CIT, Delhi became functus officio and by virtue of it not disputed before us), then the CIT, Delhi became functus officio and by virtue of it not disputed before us), then the CIT, Delhi became functus officio and by virtue of it even his subordinate authority i.e. AO, Delhi was also divested of the even his subordinate authority i.e. AO, Delhi was also divested of the jurisdiction. For the jurisdiction. For the reasons as discussed in the foregoing therefore we hold that in the given facts of the reasons as discussed in the foregoing therefore we hold that in the given facts of the reasons as discussed in the foregoing therefore we hold that in the given facts of the case, the appellant’s case was not saved by the provisions of Section 124(5) as also by case, the appellant’s case was not saved by the provisions of Section 124(5) as also by case, the appellant’s case was not saved by the provisions of Section 124(5) as also by Section 127(4) of the Act. Accordingly, the contentions of Section 127(4) of the Act. Accordingly, the contentions of the Ld. CIT, DR are rejected the Ld. CIT, DR are rejected being devoid of any merit in law as well as on facts. being devoid of any merit in law as well as on facts.

15 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. by direction or order issued by CBDT and/or other authorities under sub by direction or order issued by CBDT and/or other authorities under sub by direction or order issued by CBDT and/or other authorities under sub-section (1) or (2) of sec. 120 of the Act respectively, then assessee is estopped from raising an ob (2) of sec. 120 of the Act respectively, then assessee is estopped from raising an ob (2) of sec. 120 of the Act respectively, then assessee is estopped from raising an objection to the jurisdiction, after the time period prescribed under sub to the jurisdiction, after the time period prescribed under sub-section (3) of sec. 124 of section (3) of sec. 124 of the Act lapses. This however is not the fact of the appellant’s case. Admittedly the AO at the Act lapses. This however is not the fact of the appellant’s case. Admittedly the AO at the Act lapses. This however is not the fact of the appellant’s case. Admittedly the AO at Delhi who had enjoyed jurisdiction u/s. 124 of the Act by virtue o Delhi who had enjoyed jurisdiction u/s. 124 of the Act by virtue of direction or order f direction or order issued by CBDT and/or authorities under sub issued by CBDT and/or authorities under sub-section (1) or (2) of section 120 of the Act section (1) or (2) of section 120 of the Act was legally divested of his jurisdiction over the appellant’s case by virtue of the order was legally divested of his jurisdiction over the appellant’s case by virtue of the order was legally divested of his jurisdiction over the appellant’s case by virtue of the order u/s. 127 of the Act dated 08.10.2008, and thereafter AO u/s. 127 of the Act dated 08.10.2008, and thereafter AO at Delhi could not have suo moto at Delhi could not have suo moto assumed jurisdiction u/s. 124 of the Act. In our opinion therefore in the appellant’s case, assumed jurisdiction u/s. 124 of the Act. In our opinion therefore in the appellant’s case, assumed jurisdiction u/s. 124 of the Act. In our opinion therefore in the appellant’s case, the provision of section 124(3) does not come into play since the case of the assessee was the provision of section 124(3) does not come into play since the case of the assessee was the provision of section 124(3) does not come into play since the case of the assessee was legally transferred by the competent au legally transferred by the competent authority u/s. 127 of the Act as far back as in 2008. thority u/s. 127 of the Act as far back as in 2008. There is a reason for saying so when the transfer of an assessee's case as envisaged u/s. There is a reason for saying so when the transfer of an assessee's case as envisaged u/s. There is a reason for saying so when the transfer of an assessee's case as envisaged u/s. 127 occurs, the competent authority gives reasonable opportunity of being heard 127 occurs, the competent authority gives reasonable opportunity of being heard 127 occurs, the competent authority gives reasonable opportunity of being heard [except if the AO to whom case is [except if the AO to whom case is transferred are situated in the same city, locality or transferred are situated in the same city, locality or place (see sub-section (3) of section 127 of the Act)] and at this juncture, we would like section (3) of section 127 of the Act)] and at this juncture, we would like section (3) of section 127 of the Act)] and at this juncture, we would like to remind that in the present case at hand, the assessee was given an opportunity to be to remind that in the present case at hand, the assessee was given an opportunity to be to remind that in the present case at hand, the assessee was given an opportunity to be heard by Commissioner heard by Commissioner at Delhi before he proposed the transfer of assessee's case to AO at Delhi before he proposed the transfer of assessee's case to AO at Ranchi and the assessee had objected to the transfer which is found available in the at Ranchi and the assessee had objected to the transfer which is found available in the at Ranchi and the assessee had objected to the transfer which is found available in the paper book. After considering the assessee's objections, the Commissioner at Delhi paper book. After considering the assessee's objections, the Commissioner at Delhi paper book. After considering the assessee's objections, the Commissioner at Delhi transferred the case of assessee from AO at Delhi to AO at Ranchi. In the circumstances e of assessee from AO at Delhi to AO at Ranchi. In the circumstances e of assessee from AO at Delhi to AO at Ranchi. In the circumstances therefore, as discussed above, once transfer of the case of the assessee is ordered u/s. 127 therefore, as discussed above, once transfer of the case of the assessee is ordered u/s. 127 therefore, as discussed above, once transfer of the case of the assessee is ordered u/s. 127 of the Act, the AO who was vested with the jurisdiction by virtue of the direction or order of the Act, the AO who was vested with the jurisdiction by virtue of the direction or order of the Act, the AO who was vested with the jurisdiction by virtue of the direction or order issued under sub-section (1) or (2) of sec. 120 and section 124 of the Act stood divested section (1) or (2) of sec. 120 and section 124 of the Act stood divested section (1) or (2) of sec. 120 and section 124 of the Act stood divested of the same. As held by the Hon'ble jurisdictional High Court in M/s. Ramshila . As held by the Hon'ble jurisdictional High Court in M/s. Ramshila . As held by the Hon'ble jurisdictional High Court in M/s. Ramshila Enterprises Pvt. Ltd. (infra),since the jurisdiction was divested of the earlier AO by vi Enterprises Pvt. Ltd. (infra),since the jurisdiction was divested of the earlier AO by vi Enterprises Pvt. Ltd. (infra),since the jurisdiction was divested of the earlier AO by virtue of transfer order u/s. 127 of the Act, the earlier AO, which in this case is AO at Delhi of transfer order u/s. 127 of the Act, the earlier AO, which in this case is AO at Delhi of transfer order u/s. 127 of the Act, the earlier AO, which in this case is AO at Delhi (DCIT. Circle -15, New Delhi) ceased to be Assessing Officer after the date of transfer i.e. 15, New Delhi) ceased to be Assessing Officer after the date of transfer i.e. 15, New Delhi) ceased to be Assessing Officer after the date of transfer i.e. 08.10.2008 and therefore he (i.e. AO at New Delhi) ought not to have 08.10.2008 and therefore he (i.e. AO at New Delhi) ought not to have 08.10.2008 and therefore he (i.e. AO at New Delhi) ought not to have issued statutory notices upon the assessee unless he had been re notices upon the assessee unless he had been re-empowered or vested by a fresh transfer empowered or vested by a fresh transfer order u/s. 127 of the Act (i.e. from AO, Ranchi to AO, Delhi), which is not the case of the order u/s. 127 of the Act (i.e. from AO, Ranchi to AO, Delhi), which is not the case of the order u/s. 127 of the Act (i.e. from AO, Ranchi to AO, Delhi), which is not the case of the Revenue. In the circumstances therefore, the AO at Delhi ( Revenue. In the circumstances therefore, the AO at Delhi (ACIT, Circle ACIT, Circle-21 (1), New Delhi) could not have usurped the jurisdiction when his predecessor i.e. DCIT, Circle Delhi) could not have usurped the jurisdiction when his predecessor i.e. DCIT, Circle Delhi) could not have usurped the jurisdiction when his predecessor i.e. DCIT, Circle- 15(1), New Delhi was divested of it, by order dated 08.10.2008 by CIT 15(1), New Delhi was divested of it, by order dated 08.10.2008 by CIT- -V, New Delhi u/s. 127 of the Act. Subsequent to the order u/s. 127 of the A 127 of the Act. Subsequent to the order u/s. 127 of the Act i.e., w.e.f. from 08.10.2008, the ct i.e., w.e.f. from 08.10.2008, the DCIT, Central Circle-1, Ranchi succeeded to the jurisdiction of the assessee and the 1, Ranchi succeeded to the jurisdiction of the assessee and the 1, Ranchi succeeded to the jurisdiction of the assessee and the jurisdiction continued to vest in him (AO Ranchi) till it was legally taken away by order jurisdiction continued to vest in him (AO Ranchi) till it was legally taken away by order jurisdiction continued to vest in him (AO Ranchi) till it was legally taken away by order u/s. 127 dated 03.11.2017 by Pr. CIT, Centra u/s. 127 dated 03.11.2017 by Pr. CIT, Central Patna and transferred to ACIT, Central l Patna and transferred to ACIT, Central Circle-3(l), Kolkata. Therefore, as per the discussions (supra) there was no necessity for 3(l), Kolkata. Therefore, as per the discussions (supra) there was no necessity for 3(l), Kolkata. Therefore, as per the discussions (supra) there was no necessity for the assessee to have questioned the jurisdiction of AO at Delhi, as envisaged under sub the assessee to have questioned the jurisdiction of AO at Delhi, as envisaged under sub the assessee to have questioned the jurisdiction of AO at Delhi, as envisaged under sub- sec. (3) of sec. 124 of the Act sinc sec. (3) of sec. 124 of the Act since in the first place AO at Delhi legally enjoyed e in the first place AO at Delhi legally enjoyed jurisdiction u/s. 124 of the Act over the assessee’s case. In our considered opinion Section jurisdiction u/s. 124 of the Act over the assessee’s case. In our considered opinion Section jurisdiction u/s. 124 of the Act over the assessee’s case. In our considered opinion Section 124(3) of the Act does not in any way help the Department to justify the action of AO at 124(3) of the Act does not in any way help the Department to justify the action of AO at 124(3) of the Act does not in any way help the Department to justify the action of AO at New Delhi in issuing un New Delhi in issuing under Section 143(2) to the assessee, which is an action without der Section 143(2) to the assessee, which is an action without jurisdiction. So the challenge raised by the Ld CIT, DR fails. Therefore, we do not find any jurisdiction. So the challenge raised by the Ld CIT, DR fails. Therefore, we do not find any jurisdiction. So the challenge raised by the Ld CIT, DR fails. Therefore, we do not find any merit in the contention of the Ld. CIT, DR on this score. merit in the contention of the Ld. CIT, DR on this score.

16 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. u/s. 143(2) of the Act was empowered to do so since the ACIT, Circle u/s. 143(2) of the Act was empowered to do so since the ACIT, Circle u/s. 143(2) of the Act was empowered to do so since the ACIT, Circle-21(1), Delhi enjoyed the concurrent jurisdiction conferred u/s. 120/124 of the Act and, therefore on enjoyed the concurrent jurisdiction conferred u/s. 120/124 of the Act and, therefore on enjoyed the concurrent jurisdiction conferred u/s. 120/124 of the Act and, therefore on subsequent transfer of the case subsequent transfer of the case by the Pr. CIT, Central Patna by order dated 24.10.2017 by the Pr. CIT, Central Patna by order dated 24.10.2017 to ACIT, Central Circle-3(1), Kolkata, there was no need to re 3(1), Kolkata, there was no need to re-issue the notice u/s. 143(2) issue the notice u/s. 143(2) of the Act in terms of Sec. 127(4) of the Act. For this he relied on various judicial of the Act in terms of Sec. 127(4) of the Act. For this he relied on various judicial of the Act in terms of Sec. 127(4) of the Act. For this he relied on various judicial decisions. We however decisions. We however note that the case laws relied on by the Ld. CIT, DR were note that the case laws relied on by the Ld. CIT, DR were factually distinguishable. In these decisions the Courts were called upon to examine the factually distinguishable. In these decisions the Courts were called upon to examine the factually distinguishable. In these decisions the Courts were called upon to examine the implications arising from the provisions of Section 120 and 124 of the Act and the facts implications arising from the provisions of Section 120 and 124 of the Act and the facts implications arising from the provisions of Section 120 and 124 of the Act and the facts of these cases did not involve orders under Section 127 of the Act in terms of which the not involve orders under Section 127 of the Act in terms of which the not involve orders under Section 127 of the Act in terms of which the AO holding territorial jurisdiction in terms of Section 124 read with Section 120(1) & (2) AO holding territorial jurisdiction in terms of Section 124 read with Section 120(1) & (2) AO holding territorial jurisdiction in terms of Section 124 read with Section 120(1) & (2) was specifically divested of his jurisdiction by the competent authority and the was specifically divested of his jurisdiction by the competent authority and the was specifically divested of his jurisdiction by the competent authority and the jurisdiction was conferred on some other officer after complying with the procedure as conferred on some other officer after complying with the procedure as conferred on some other officer after complying with the procedure prescribed in Section 127 of the Act. Instead we find that a similar issue came up before prescribed in Section 127 of the Act. Instead we find that a similar issue came up before prescribed in Section 127 of the Act. Instead we find that a similar issue came up before this Tribunal in the case of M/s. Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT wherein the this Tribunal in the case of M/s. Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT wherein the this Tribunal in the case of M/s. Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT wherein the factual matrix governing the issue of jurisdiction was similar. In that case the question matrix governing the issue of jurisdiction was similar. In that case the question matrix governing the issue of jurisdiction was similar. In that case the question was whether the Commissioner who usurped the revisional jurisdiction u/s. 263 of the was whether the Commissioner who usurped the revisional jurisdiction u/s. 263 of the was whether the Commissioner who usurped the revisional jurisdiction u/s. 263 of the Act could have validly done so, once he himself had passedan order u/s 127 of the Act in Act could have validly done so, once he himself had passedan order u/s 127 of the Act in Act could have validly done so, once he himself had passedan order u/s 127 of the Act in terms of which assessee’s case stood transferred. The facts of the said case M/s. terms of which assessee’s case stood transferred. The facts of the said case M/s. terms of which assessee’s case stood transferred. The facts of the said case M/s. Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT can be summarized as follows: Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT can be summarized as follows: Ramshila Enterprises Pvt. Ltd. Vs. Pr. CIT can be summarized as follows:-

Sl. Date Events No. Assessment u/s. 147/143(3) by ITO, Wd Assessment u/s. 147/143(3) by ITO, Wd-4(1), 1. 21st May, 2010 May, 2010 Kolkata (for AY 2008-09). CIT, Kolkata-II transferred the jurisdiction II transferred the jurisdiction over the assessee to ACIT/DCIT, Central over the assessee to ACIT/DCIT, Central Circle-XIX, Kolkata for better co XIX, Kolkata for better co-ordination, 2. 3rd September, 2012 September, 2012 effective effective investigation investigation and and meaningful meaningful assessment, consequent to a search conducted assessment, consequent to a search conducted on 17th November 2011 upon M/s. Atha Mines November 2011 upon M/s. Atha Mines (AY 2012-13). ACIT/DCIT, Central Circle-XIX, Kolkata issued XIX, Kolkata issued 3. 18th March, 2013 March, 2013 sec. 143(2) notice to assessee Actual transfer of files took place from ITO, Actual transfer of files took place from ITO, 4. 29th July, 2013 July, 2013 Wd-4(1), Kolkata to ACIT/DCIT, Centra 4(1), Kolkata to ACIT/DCIT, Central Circle-XIX, Kolkata. Notice u/s. 263 issued by CIT, Kolkata Notice u/s. 263 issued by CIT, Kolkata-II proposing to interfere in the assessment order proposing to interfere in the assessment order 5. 18th March, 2013 March, 2013 passed by ITO, Wd-4(1), Kolkata dated 21 4(1), Kolkata dated 21st May, 2010 (AY 2008-09). CIT-II, Kolkata passed the order II, Kolkata passed the order u/s. 263 6. 26th March, 2013 March, 2013 setting aside the order of ITO, Wad setting aside the order of ITO, Wad-4(1) dated 21st May, 2010 for AY 2008-09.

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 23. The aforesaid order of CIT The aforesaid order of CIT-II, Kolkata was challenged by the assessee [M/s II, Kolkata was challenged by the assessee [M/s Ramshila,]objecting to the jurisdiction of CIT Ramshila,]objecting to the jurisdiction of CIT-II, Kolkata who had issued Show Cause II, Kolkata who had issued Show Cause Notice u/s. 263 and thereafter passed order u/s. 263 dated 26 ice u/s. 263 and thereafter passed order u/s. 263 dated 26th March, 2013 for AY March, 2013 for AY 2008-09. The validity of the said revision order was upheld by this Tribunal in favour of 09. The validity of the said revision order was upheld by this Tribunal in favour of 09. The validity of the said revision order was upheld by this Tribunal in favour of the department, by observing as under: the department, by observing as under:

“The definition of ‘case’ for the purpose of sec.127 of the Act as given in the Explanation below “The definition of ‘case’ for the purpose of sec.127 of the Act as given in the Explanation below “The definition of ‘case’ for the purpose of sec.127 of the Act as given in the Explanation below sec.127 does not debar the Commissioner from transferring only a particular case, more so when sec.127 does not debar the Commissioner from transferring only a particular case, more so when sec.127 does not debar the Commissioner from transferring only a particular case, more so when the request for transfer was made in specific circumstances, su the request for transfer was made in specific circumstances, such as proper co ch as proper co-ordination of search cases.The Commissioner transferring jurisdiction has power to transfer all proceedings under the cases.The Commissioner transferring jurisdiction has power to transfer all proceedings under the cases.The Commissioner transferring jurisdiction has power to transfer all proceedings under the Act, which are pending, completed or which may be commenced after the date of transfer, but that Act, which are pending, completed or which may be commenced after the date of transfer, but that Act, which are pending, completed or which may be commenced after the date of transfer, but that does not mean that he doe does not mean that he does not have powers to restrict his order of transfer only to a particular s not have powers to restrict his order of transfer only to a particular case for which request was made, thereby, leaving the jurisdiction in respect of other cases case for which request was made, thereby, leaving the jurisdiction in respect of other cases case for which request was made, thereby, leaving the jurisdiction in respect of other cases pertaining to an assessee to be exercised by the AO/CIT who already had it.The power to do pertaining to an assessee to be exercised by the AO/CIT who already had it.The power to do pertaining to an assessee to be exercised by the AO/CIT who already had it.The power to do a particular act also includes a power to restrict the exercise of power partly.It cannot be said that particular act also includes a power to restrict the exercise of power partly.It cannot be said that particular act also includes a power to restrict the exercise of power partly.It cannot be said that the power should be exercised either as a whole or not at all.Such an argument is fallacious and the power should be exercised either as a whole or not at all.Such an argument is fallacious and the power should be exercised either as a whole or not at all.Such an argument is fallacious and defeats the very purpose of conferring a larger power.A defeats the very purpose of conferring a larger power.As the actual transfer of the files from the s the actual transfer of the files from the incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be incumbent AO to the new AO had taken place only on 29.7.2013 and further the order sought to be revised by the ld.CIT u/s 263 was passed much prior to the even making of request for transfer of revised by the ld.CIT u/s 263 was passed much prior to the even making of request for transfer of revised by the ld.CIT u/s 263 was passed much prior to the even making of request for transfer of jurisdiction in respect of search matters, we have absolutely no doubt in our mind that only the CIT spect of search matters, we have absolutely no doubt in our mind that only the CIT spect of search matters, we have absolutely no doubt in our mind that only the CIT Kolkata II, Kolkata had the jurisdiction to revise the assessment order passed u/s147 as has been Kolkata II, Kolkata had the jurisdiction to revise the assessment order passed u/s147 as has been Kolkata II, Kolkata had the jurisdiction to revise the assessment order passed u/s147 as has been done in this case.The contention of the learned AR in this regard is held t done in this case.The contention of the learned AR in this regard is held to be without substance o be without substance and not unacceptable.” and not unacceptable.” 24. Aggrieved by the aforesaid order of the Tribunal, the assessee M/s.Ramshila Aggrieved by the aforesaid order of the Tribunal, the assessee M/s.Ramshila Aggrieved by the aforesaid order of the Tribunal, the assessee M/s.Ramshila Enterprises Pvt. Ltd. preferred an appeal before the Hon’ble jurisdictional High Court, Enterprises Pvt. Ltd. preferred an appeal before the Hon’ble jurisdictional High Court, Enterprises Pvt. Ltd. preferred an appeal before the Hon’ble jurisdictional High Court, Calcutta wherein the following question of Calcutta wherein the following question of law raising the jurisdictional issue similar to law raising the jurisdictional issue similar to that raised by the assessee before us, was framed as under: that raised by the assessee before us, was framed as under:-

“Whether the Tribunal was justified in holding that the Commissioner of Income Tax, Kolkata Whether the Tribunal was justified in holding that the Commissioner of Income Tax, Kolkata Whether the Tribunal was justified in holding that the Commissioner of Income Tax, Kolkata-II, had jurisdiction over the appellant at the time had jurisdiction over the appellant at the time of issue of the Show Cause notice on 18th March, of issue of the Show Cause notice on 18th March, 2013 and passing of the order on 26th March, 2013 under section 263 of the Income Tax Act, 1961 2013 and passing of the order on 26th March, 2013 under section 263 of the Income Tax Act, 1961 2013 and passing of the order on 26th March, 2013 under section 263 of the Income Tax Act, 1961 in spite of transfer of jurisdiction to the Commissioner of Income Tax, Central Circle, Kolkata vide in spite of transfer of jurisdiction to the Commissioner of Income Tax, Central Circle, Kolkata vide in spite of transfer of jurisdiction to the Commissioner of Income Tax, Central Circle, Kolkata vide an order dated 3rd September, 2012 under section 127 (2)(a) of the said Act and its purported dated 3rd September, 2012 under section 127 (2)(a) of the said Act and its purported dated 3rd September, 2012 under section 127 (2)(a) of the said Act and its purported findings in that behalf are arbitrary, unreasonable and perverse?. findings in that behalf are arbitrary, unreasonable and perverse?.”

“Mr. Ghosal, learned senior advocate appearing for the Revenue submitted that the transfer order “Mr. Ghosal, learned senior advocate appearing for the Revenue submitted that the transfer order “Mr. Ghosal, learned senior advocate appearing for the Revenue submitted that the transfer order itself indicates that jurisdiction o itself indicates that jurisdiction of the Income-tax Officer, Wd-4(1), Kolkata was transferred to 4(1), Kolkata was transferred to ACIT/DCIT, Central Circle ACIT/DCIT, Central Circle-XIX, Kolkata, which is at page 584.

The jurisdiction of the Commissioner of Income The jurisdiction of the Commissioner of Income-tax remained unchanged. In other words, it is the tax remained unchanged. In other words, it is the jurisdiction of the trial court, jurisdiction of the trial court, which was changed. The jurisdiction of the appellate authority which was changed. The jurisdiction of the appellate authority remained unchanged. Therefore, the order under challenge was validly passed by the remained unchanged. Therefore, the order under challenge was validly passed by the remained unchanged. Therefore, the order under challenge was validly passed by the Commissioner of Income Commissioner of Income-tax.”

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd.

“Mr.Poddar, learned senior advocate, drew our attention to an order dated 3rd September, 2012 “Mr.Poddar, learned senior advocate, drew our attention to an order dated 3rd September, 2012 “Mr.Poddar, learned senior advocate, drew our attention to an order dated 3rd September, 2012 appearing at page 584 of the additional papers filed by h appearing at page 584 of the additional papers filed by him, which is an order passed under im, which is an order passed under section 127 of the Income Tax Act by no other than the CIT, Kolkata section 127 of the Income Tax Act by no other than the CIT, Kolkata-II, Kolkata, who passed the II, Kolkata, who passed the impugned order under Section 263, transferring the jurisdiction over five assessees including the impugned order under Section 263, transferring the jurisdiction over five assessees including the impugned order under Section 263, transferring the jurisdiction over five assessees including the appellant before us to the appellant before us to the ACIT/DCIT, Central Circle XIX, Kolkata in the interest of revenue for ACIT/DCIT, Central Circle XIX, Kolkata in the interest of revenue for better coordination, effective investigation and meaningful assessment consequent to a search better coordination, effective investigation and meaningful assessment consequent to a search better coordination, effective investigation and meaningful assessment consequent to a search conducted on 17th November, 2011 against the business concern of Atha Mines. Mr.Poddar conducted on 17th November, 2011 against the business concern of Atha Mines. Mr.Poddar conducted on 17th November, 2011 against the business concern of Atha Mines. Mr.Poddar contended that the appellant before us is not in any way connected with Atha Mines Group. But the nded that the appellant before us is not in any way connected with Atha Mines Group. But the nded that the appellant before us is not in any way connected with Atha Mines Group. But the point of substance is that the impugned order under section 263 was passed by the CIT, Kolkata point of substance is that the impugned order under section 263 was passed by the CIT, Kolkata point of substance is that the impugned order under section 263 was passed by the CIT, Kolkata-II, Kolkata in spite of the fact that the jurisdiction had already b Kolkata in spite of the fact that the jurisdiction had already been transferred by his predecessor een transferred by his predecessor- in-office by his order dated 3rd September, 2012 with immediate effect. Mr.Podder contended that office by his order dated 3rd September, 2012 with immediate effect. Mr.Podder contended that office by his order dated 3rd September, 2012 with immediate effect. Mr.Podder contended that CIT, Kolkata-II, Kolkata thereafter had no longer any jurisdiction left with him to be exercised in II, Kolkata thereafter had no longer any jurisdiction left with him to be exercised in II, Kolkata thereafter had no longer any jurisdiction left with him to be exercised in respect of the return or respect of the return or returns filed by the assessee or assessments made. He submitted that the returns filed by the assessee or assessments made. He submitted that the exercise of power was not only ex parte, without notice, but was also without jurisdiction. He drew exercise of power was not only ex parte, without notice, but was also without jurisdiction. He drew exercise of power was not only ex parte, without notice, but was also without jurisdiction. He drew our attention to the letter dated 18th March, 2013 received by his client from the our attention to the letter dated 18th March, 2013 received by his client from the our attention to the letter dated 18th March, 2013 received by his client from the Deputy Commissioner of Income Commissioner of Income-tax, which is a notice under section 143(2) pertaining to the assessment tax, which is a notice under section 143(2) pertaining to the assessment year 2012-2013. He submitted that the order dated 3rd September, 2012 transferring jurisdiction 2013. He submitted that the order dated 3rd September, 2012 transferring jurisdiction 2013. He submitted that the order dated 3rd September, 2012 transferring jurisdiction to a ACIT/DCIT, Central Circle to a ACIT/DCIT, Central Circle-XIX, Kolkata had already become operative and was also acted become operative and was also acted upon.Therefore, CIT, Kolkata upon.Therefore, CIT, Kolkata-II, Kolkata could not have exercised jurisdiction.The impugned order II, Kolkata could not have exercised jurisdiction.The impugned order passed by him is altogether without jurisdiction and is, therefore, a nullity. passed by him is altogether without jurisdiction and is, therefore, a nullity. He drew our attention to a judgment of the Apex Court in the case of Pandurang and Others versus He drew our attention to a judgment of the Apex Court in the case of Pandurang and Others versus He drew our attention to a judgment of the Apex Court in the case of Pandurang and Others versus State of Maharashtra reported in (1986) 4 SCC436for the proposition that even a right order by a State of Maharashtra reported in (1986) 4 SCC436for the proposition that even a right order by a State of Maharashtra reported in (1986) 4 SCC436for the proposition that even a right order by a wrong forum is a nullity.In the aforesaid judgment their Lords wrong forum is a nullity.In the aforesaid judgment their Lordship held as follows: hip held as follows: “4.When a matter required to be decided by a Division Bench of the High Court is decided “4.When a matter required to be decided by a Division Bench of the High Court is decided “4.When a matter required to be decided by a Division Bench of the High Court is decided by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a court which had no competence to hear the matter, it by a court which had no competence to hear the matter, it being a matter of total lack of being a matter of total lack of jurisdiction.The accused was entitled to be heard by at least two learned Judges jurisdiction.The accused was entitled to be heard by at least two learned Judges jurisdiction.The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim a verdict as regards his guilt or constituting a Division Bench and had a right to claim a verdict as regards his guilt or constituting a Division Bench and had a right to claim a verdict as regards his guilt or innocence at the hands of the two learned Judges.This innocence at the hands of the two learned Judges.This right cannot be taken away except right cannot be taken away except by amending the rules.So long as the rules are in operation it would be arbitrary and by amending the rules.So long as the rules are in operation it would be arbitrary and by amending the rules.So long as the rules are in operation it would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of discriminatory to deny him this right regardless of whether it is done by reason of discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise.Deliberately, it cannot be negligence or otherwise.Deliberately, it cannot be done.Negligence can neither be done.Negligence can neither be invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules.What can be done only by at least two learned Judges cannot be right under the rules.What can be done only by at least two learned Judges cannot be right under the rules.What can be done only by at least two learned Judges cannot be done by one learned Judge.Even if the decisio done by one learned Judge.Even if the decision is right on merits, it is by a forum which is n is right on merits, it is by a forum which is lacking in competence with regard to the subject matter.Even a ‘right’ decision by a lacking in competence with regard to the subject matter.Even a ‘right’ decision by a lacking in competence with regard to the subject matter.Even a ‘right’ decision by a ‘wrong’ forum is no decision.It is non ‘wrong’ forum is no decision.It is non-existent in the eye of law.And hence a nullity.The existent in the eye of law.And hence a nullity.The judgment under appeal is therefor judgment under appeal is therefore no judgment in the eye of law.This Court in State of e no judgment in the eye of law.This Court in State of Madhya Pradsh v. Dewadas (1982) 1 SCC 552 has taken a view which reinforces our Madhya Pradsh v. Dewadas (1982) 1 SCC 552 has taken a view which reinforces our Madhya Pradsh v. Dewadas (1982) 1 SCC 552 has taken a view which reinforces our view.We, therefore, allow the appeal, set aside the order passed by the learned Single view.We, therefore, allow the appeal, set aside the order passed by the learned Single view.We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to Judge, and send the matter back to the High Court for being placed before a Division the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the Bench of the High Court, which will afford reasonable opportunity of hearing to both the Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously.” sides and dispose it of in accordance with law, expeditiously.” He also relied upon a Division Bench judgement of th He also relied upon a Division Bench judgement of this Court in the case of ITO Vs/. Ashoke Glass is Court in the case of ITO Vs/. Ashoke Glass Works reported in (1980) 125 ITR491(Cal) wherein the following view was expressed (page 505): Works reported in (1980) 125 ITR491(Cal) wherein the following view was expressed (page 505): Works reported in (1980) 125 ITR491(Cal) wherein the following view was expressed (page 505): “So when the jurisdiction is validly removed by a competent authority under the “So when the jurisdiction is validly removed by a competent authority under the “So when the jurisdiction is validly removed by a competent authority under the provisions of a statute, the origina provisions of a statute, the original court or any Tribunal or authority in such event will l court or any Tribunal or authority in such event will

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. be incompetent, as having ceased to have jurisdiction, to proceed further with the be incompetent, as having ceased to have jurisdiction, to proceed further with the be incompetent, as having ceased to have jurisdiction, to proceed further with the pending proceeding or proceeding which may be instituted after such removal of pending proceeding or proceeding which may be instituted after such removal of pending proceeding or proceeding which may be instituted after such removal of jurisdiction.” jurisdiction.” 27. After hearing both After hearing both the parties the Hon’ble High Court has held as under: the parties the Hon’ble High Court has held as under: “We have considered the rival submissions. It is not necessary for us to consider whether the “We have considered the rival submissions. It is not necessary for us to consider whether the “We have considered the rival submissions. It is not necessary for us to consider whether the Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order Commissioner had jurisdiction to restrict the order of transfer, for the simple reason that the order of transfer in this case was not a restricted one. Reading the order dated 3rd September, 2012 as a transfer in this case was not a restricted one. Reading the order dated 3rd September, 2012 as a transfer in this case was not a restricted one. Reading the order dated 3rd September, 2012 as a whole, it does not appear that any restricted transfer was sought to be made for any particular whole, it does not appear that any restricted transfer was sought to be made for any particular whole, it does not appear that any restricted transfer was sought to be made for any particular year or years or otherwise. The order of transfer, as we have a year or years or otherwise. The order of transfer, as we have already indicated, was passed in the lready indicated, was passed in the interest of revenue for better coordination, effective investigative and meaningful assessment. interest of revenue for better coordination, effective investigative and meaningful assessment. interest of revenue for better coordination, effective investigative and meaningful assessment. The actual transfer of files may have taken place on 29th July, 2013 but admitted The actual transfer of files may have taken place on 29th July, 2013 but admitted The actual transfer of files may have taken place on 29th July, 2013 but admitted position is that a notice under Section 14 position is that a notice under Section 143(2) by the transferee assessing officer was issued on 18th 3(2) by the transferee assessing officer was issued on 18th March, 2013. The existence of files does not confer the jurisdiction when the same has validly been March, 2013. The existence of files does not confer the jurisdiction when the same has validly been March, 2013. The existence of files does not confer the jurisdiction when the same has validly been transferred and also acted upon. transferred and also acted upon. The jurisdiction over the subject-matter has to be conferred by matter has to be conferred by law. The jurisdiction in this case had been transferred by the order dated 3rd September, 2012 by law. The jurisdiction in this case had been transferred by the order dated 3rd September, 2012 by law. The jurisdiction in this case had been transferred by the order dated 3rd September, 2012 by no other than the CIT Kolkata no other than the CIT Kolkata- II, Kolkata himself. Once that was done CIT Kolkata II, Kolkata himself. Once that was done CIT Kolkata – II, Kolkata lost the seisin over the matter. He became ‘functus officio’ lost the seisin over the matter. He became ‘functus officio’. Reference in this regard may be made to the Stroud’s Judicial Dictionary of Words and Reference in this regard may be made to the Stroud’s Judicial Dictionary of Words and Reference in this regard may be made to the Stroud’s Judicial Dictionary of Words and Phrases, 7th Edition, Page 1085 wherein the following meaning has been expressed: Phrases, 7th Edition, Page 1085 wherein the following meaning has been expressed: Phrases, 7th Edition, Page 1085 wherein the following meaning has been expressed: “FUNCTUS OFFICIO. An arbitrator or referee cannot be said to be functus “FUNCTUS OFFICIO. An arbitrator or referee cannot be said to be functus officio when he has given officio when he has given a decision which is held to be no decision at all (Davies v Howe Spinning Co LTD.27 B.W.C.C.207). a decision which is held to be no decision at all (Davies v Howe Spinning Co LTD.27 B.W.C.C.207). a decision which is held to be no decision at all (Davies v Howe Spinning Co LTD.27 B.W.C.C.207). Where a judge has made an order for a stay of execution which has been passed and entered, he is Where a judge has made an order for a stay of execution which has been passed and entered, he is Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither he no functus officio, and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the r any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay (Re V.G.M.Holding Ltd [1941].3 All E.R.417). terms of such stay (Re V.G.M.Holding Ltd [1941].3 All E.R.417). An arbitrator or umpire who has made his award is functus officio, and could not by common law An arbitrator or umpire who has made his award is functus officio, and could not by common law An arbitrator or umpire who has made his award is functus officio, and could not by common law alter it in any way whatsoev alter it in any way whatsoever; he could not even correct an obvious clerical mistake. See Mordue v er; he could not even correct an obvious clerical mistake. See Mordue v Palmer, 6 Ch. App.22; Henfree v Bromley, 6 East, 309; Brooke v Mitchell, 6 M.& W.473. See now Palmer, 6 Ch. App.22; Henfree v Bromley, 6 East, 309; Brooke v Mitchell, 6 M.& W.473. See now Palmer, 6 Ch. App.22; Henfree v Bromley, 6 East, 309; Brooke v Mitchell, 6 M.& W.473. See now Arbitration Act 1950 (c.27).s.17.” Arbitration Act 1950 (c.27).s.17.” Reference may also be made to the judgement in the cas Reference may also be made to the judgement in the case of Re V.G.M.Holdings, Ltd. 1941 (3) All e of Re V.G.M.Holdings, Ltd. 1941 (3) All England Law Reports, 417 wherein the following views were expressed: England Law Reports, 417 wherein the following views were expressed: “I think that it would be a strange position if a judge were at liberty to reconsider his “I think that it would be a strange position if a judge were at liberty to reconsider his “I think that it would be a strange position if a judge were at liberty to reconsider his decision and grant a stay of execution after he had ma decision and grant a stay of execution after he had made an order refusing it. I think de an order refusing it. I think that, when a judge has made an order such as that in the present case, the only remedy a judge has made an order such as that in the present case, the only remedy for the respondent, if he is dissatisfied with the order, is to go to the Court of Appeal…” he is dissatisfied with the order, is to go to the Court of Appeal…” A special bench in the case of Komal Chan A special bench in the case of Komal Chand –versus The State of Madhya Pradesh, versus The State of Madhya Pradesh, reported in AIR 1966 Madhya Pradesh 20 opined in this regard as follows: reported in AIR 1966 Madhya Pradesh 20 opined in this regard as follows: “Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be “Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be “Section 35 of the Stamp Act, inter alia, says that no instrument chargeable with duty shall be registered by any public officer unless such ins registered by any public officer unless such instrument is duly stamped. This provision thus casts a trument is duly stamped. This provision thus casts a duty on the registering officer to examine whether an instrument presented for registration is duly duty on the registering officer to examine whether an instrument presented for registration is duly duty on the registering officer to examine whether an instrument presented for registration is duly stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless stamped. If, as section 36 says, an instrument chargeable with duty shall not be registered unless such instrument is duly stamped, then it follows that the registering officer must perform the duty instrument is duly stamped, then it follows that the registering officer must perform the duty instrument is duly stamped, then it follows that the registering officer must perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before of seeing whether an instrument presented for registration is or is not duly stamped before of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that th admitting it to registration and not afterwards. If he finds that the document is not duly stamped, e document is not duly stamped, then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the then he must impound it under Section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an Stamp Act is there any provision giving to the registering officer any power to examine whether an Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered instrument already registered was or was not duly stamped and to impound it. As soon as the was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function in the registering officer registers a document presented to him for registration, the function in the registering officer registers a document presented to him for registration, the function in the performance of which the document was produced before him is over and thereafter becomes performance of which the document was produced before him is over and thereafter becomes performance of which the document was produced before him is over and thereafter becomes functus officio having no power under section 33 to impound the instrument. officio having no power under section 33 to impound the instrument. The matter is really concluded by the decision of the Supreme Court in Govt. of Uttar Pradesh v. The matter is really concluded by the decision of the Supreme Court in Govt. of Uttar Pradesh v. The matter is really concluded by the decision of the Supreme Court in Govt. of Uttar Pradesh v. Mohammad Amir Ahmad Khan, AIR1961SC787 That was a case where the question arose whether Mohammad Amir Ahmad Khan, AIR1961SC787 That was a case where the question arose whether Mohammad Amir Ahmad Khan, AIR1961SC787 That was a case where the question arose whether

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. the Collector has any power to impound an instrument sent to him for adjudication under section Collector has any power to impound an instrument sent to him for adjudication under section Collector has any power to impound an instrument sent to him for adjudication under section 31 of the Stamp Act. The Supreme Court held that under that section the Collector had no such 31 of the Stamp Act. The Supreme Court held that under that section the Collector had no such 31 of the Stamp Act. The Supreme Court held that under that section the Collector had no such power, as the provision gave him the power only to give his opinion a power, as the provision gave him the power only to give his opinion as regards the duty with which s regards the duty with which in his judgment the instrument was chargeable and when that function was performed by the in his judgment the instrument was chargeable and when that function was performed by the in his judgment the instrument was chargeable and when that function was performed by the Collector he became functus officio. Collector he became functus officio. It was observed by the Supreme Court that the power to impound only exists when an instrument It was observed by the Supreme Court that the power to impound only exists when an instrument It was observed by the Supreme Court that the power to impound only exists when an instrument is produced before judicial officers or other officers performing judicial functions as evidence of oduced before judicial officers or other officers performing judicial functions as evidence of oduced before judicial officers or other officers performing judicial functions as evidence of any fact to be proved, or before other public officers who have to perform any function in regard to any fact to be proved, or before other public officers who have to perform any function in regard to any fact to be proved, or before other public officers who have to perform any function in regard to those instruments as, for example, registration. The Supreme those instruments as, for example, registration. The Supreme Court also approved the decisions in Court also approved the decisions in Collector, Ahmednagar v. Rambhau, AIR 1930 Bom 392 (FB). Paiku v. Gaya, ILR (1948) Nag 950 : Collector, Ahmednagar v. Rambhau, AIR 1930 Bom 392 (FB). Paiku v. Gaya, ILR (1948) Nag 950 : Collector, Ahmednagar v. Rambhau, AIR 1930 Bom 392 (FB). Paiku v. Gaya, ILR (1948) Nag 950 : (AIR1949Nag 214) and Panakala Rao v. Kumaraswami, AIR 1937Mad 763 where the doctrine of (AIR1949Nag 214) and Panakala Rao v. Kumaraswami, AIR 1937Mad 763 where the doctrine of (AIR1949Nag 214) and Panakala Rao v. Kumaraswami, AIR 1937Mad 763 where the doctrine of functus officio was applied and it wa functus officio was applied and it was held that the Court had no power to recall and impound a s held that the Court had no power to recall and impound a certificate of sale after executing it and delivering it to the purchaser, or to reopen a case and certificate of sale after executing it and delivering it to the purchaser, or to reopen a case and certificate of sale after executing it and delivering it to the purchaser, or to reopen a case and impound documents proved after signing the decree, or to impound an instrument admitted in impound documents proved after signing the decree, or to impound an instrument admitted in impound documents proved after signing the decree, or to impound an instrument admitted in evidence after delivery of judgment.Here, when the Sub e after delivery of judgment.Here, when the Sub- In the present case, the Sub In the present case, the Sub-Registrar purported to act under paragraph 232 of the Registration Registrar purported to act under paragraph 232 of the Registration Manual when he made a report to the Collector that the ‘Takseemnama’ was not duly stamped.But Manual when he made a report to the Collector that the ‘Takseemnama’ was not duly stamped.But Manual when he made a report to the Collector that the ‘Takseemnama’ was not duly stamped.But on reading paragraphs 231 and 232 it is clear that they do not say that after a document is raphs 231 and 232 it is clear that they do not say that after a document is raphs 231 and 232 it is clear that they do not say that after a document is admitted to registration, the registering officer can make a report to the Collector that it was not admitted to registration, the registering officer can make a report to the Collector that it was not admitted to registration, the registering officer can make a report to the Collector that it was not sufficiently stamped on the other hand, paragraph 231 expressly lays down a dir sufficiently stamped on the other hand, paragraph 231 expressly lays down a dir sufficiently stamped on the other hand, paragraph 231 expressly lays down a direction that before taking any further action, that is to say, in the matter of registration, the registering officer must taking any further action, that is to say, in the matter of registration, the registering officer must taking any further action, that is to say, in the matter of registration, the registering officer must see that the document is duly stamped.The words “after registering the document” occurring in see that the document is duly stamped.The words “after registering the document” occurring in see that the document is duly stamped.The words “after registering the document” occurring in paragraph 232 obviously refer to the ent paragraph 232 obviously refer to the entry of the document in the Register maintained of ry of the document in the Register maintained of documents presented for registration.They do not mean that the registering officer can make a documents presented for registration.They do not mean that the registering officer can make a documents presented for registration.They do not mean that the registering officer can make a report about insufficiency of stamp after the document has been admitted to registration.” report about insufficiency of stamp after the document has been admitted to registration.” report about insufficiency of stamp after the document has been admitted to registration.” In the case of SBI In the case of SBI –versus S.N.Goyal reported in 2009 (8) SCC92the following views were ersus S.N.Goyal reported in 2009 (8) SCC92the following views were expressed: “It is true that once an authority exercising quasi “It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review.B review its decision unless the relevant statute or rules permit such review.But the question is as to ut the question is as to at what stage an authority becomes functus officio in regard to an order made by at what stage an authority becomes functus officio in regard to an order made by at what stage an authority becomes functus officio in regard to an order made by him.P.Ramanatha Aiyar's Advanced Law LexiCo.(3rd Edn., Vol.2, pp.1946 him.P.Ramanatha Aiyar's Advanced Law LexiCo.(3rd Edn., Vol.2, pp.1946-47) gives the following 47) gives the following illustrative definition of the term “functus officio”: illustrative definition of the term “functus officio”: Thus a judge, when he has decided a question brought before him, is functus officio, and cannot Thus a judge, when he has decided a question brought before him, is functus officio, and cannot Thus a judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision.” review his own decision.” Black's Law Dictionary (6th Edn., p.673) gives its meaning as follows: Black's Law Dictionary (6th Edn., p.673) gives its meaning as follows: “Having fulfilled the function, discharged the office, or acc “Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of omplished the purpose, and therefore of no further force or authority.” no further force or authority.” We may first refer to the position with reference to civil courts.Order 20 of the Code of Civil We may first refer to the position with reference to civil courts.Order 20 of the Code of Civil We may first refer to the position with reference to civil courts.Order 20 of the Code of Civil Procedure deals with judgment and decree.Rule 1 explains when a judgment is pronounced. Procedure deals with judgment and decree.Rule 1 explains when a judgment is pronounced. Procedure deals with judgment and decree.Rule 1 explains when a judgment is pronounced.Sub- rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to open court either at once, or as soon thereafter as may be practicable, and when the judgment is to open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a be pronounced on some future day, the court shall fix a day for that purpose of which due notice day for that purpose of which due notice shall be given to the parties or their pleaders.Sub shall be given to the parties or their pleaders.Sub-rule (3) provides that the judgment may be rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially pronounced by dictation in an open court to a shorthand writer [if the Judge is specially pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Cou empowered (sic by the High Court) in this behalf].The proviso thereto provides that where the rt) in this behalf].The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date shall, after making such corrections as may be necessary, be signed by the Judge, bear the date shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record.Rule 3 provides that the judgment shall be which it was pronounced and form a part of the record.Rule 3 provides that the judgment shall be which it was pronounced and form a part of the record.Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, dated and signed by the Judge in open court at the time of pronouncing it and when once signed, dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided shall not afterwards be altered or added to save as provided by Section 152 or on review.Thus, by Section 152 or on review.Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the where a judgment is reserved, mere dictation does not amount to pronouncement, but where the where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement.But even after such judgment is dictated in open court, that itself amounts to pronouncement.But even after such judgment is dictated in open court, that itself amounts to pronouncement.But even after such pronouncement by open court dictati pronouncement by open court dictation, the Judge can make corrections before signing and dating on, the Judge can make corrections before signing and dating the judgment.Therefore, a Judge becomes functus officio when he pronounces, signs and dates the the judgment.Therefore, a Judge becomes functus officio when he pronounces, signs and dates the the judgment.Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to Section 152 and power of review).The position is different with reference to judgment (subject to Section 152 and power of review).The position is different with reference to judgment (subject to Section 152 and power of review).The position is different with reference to

21 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. quasi-judicial authorities.While some quasi judicial authorities.While some quasi-judicial tribunals fix a day for pronouncement and judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi pronounce their orders on the day fixed, many quasi-judicial authorities do not pronounce their judicial authorities do not pronounce their orders.Some publish or notify their orders.Some prepare and sign t orders.Some publish or notify their orders.Some prepare and sign the orders and communicate the he orders and communicate the same to the party concerned.A quasi same to the party concerned.A quasi-judicial authority will become functus officio only when its judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to order is pronounced, or published/notified or communicated (put in the course of transmission) to order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned.When an ord the party concerned.When an order is made in an office noting in a file but is not pronounced, er is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for published or communicated, nothing prevents the authority from correcting it or altering it for published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons.But once the order is pronounced or published or notified or communicated, the valid reasons.But once the order is pronounced or published or notified or communicated, the valid reasons.But once the order is pronounced or published or notified or communicated, the authority will become functus officio.The order dated 18 hority will become functus officio.The order dated 18-1-1995 made on an office note, was 1995 made on an office note, was neither pronounced, nor published/notified nor communicated.Therefore, it cannot be said that neither pronounced, nor published/notified nor communicated.Therefore, it cannot be said that neither pronounced, nor published/notified nor communicated.Therefore, it cannot be said that the appointing authority became functus officio when it signed the note d the appointing authority became functus officio when it signed the note dated 18 ated 18-1-1995.” Applying the law laid down in S.N.Goyal’s (supra) case we are reinforced, in our opinion that the Applying the law laid down in S.N.Goyal’s (supra) case we are reinforced, in our opinion that the Applying the law laid down in S.N.Goyal’s (supra) case we are reinforced, in our opinion that the CIT Kolkata – II, Kolkata had become functus officio prior to 18th March, 2013 because the II, Kolkata had become functus officio prior to 18th March, 2013 because the II, Kolkata had become functus officio prior to 18th March, 2013 because the transferee – assessing officer had assumed jurisd assessing officer had assumed jurisdiction without which the notice dated 18th March, iction without which the notice dated 18th March, 2013 under Section 143(2) could not have been issued.Therefore, the order of transfer was duly 2013 under Section 143(2) could not have been issued.Therefore, the order of transfer was duly 2013 under Section 143(2) could not have been issued.Therefore, the order of transfer was duly published/ notified and/or communicated and thereafter acted upon by the transferee published/ notified and/or communicated and thereafter acted upon by the transferee published/ notified and/or communicated and thereafter acted upon by the transferee-assessing officer. We are, as such of the opinion that the issuance of the notice dated 18th March, 2013 under as such of the opinion that the issuance of the notice dated 18th March, 2013 under as such of the opinion that the issuance of the notice dated 18th March, 2013 under Section 263 and the consequent order dated 26th March, 2013 passed under Section 263 of the Section 263 and the consequent order dated 26th March, 2013 passed under Section 263 of the Section 263 and the consequent order dated 26th March, 2013 passed under Section 263 of the Income Tax Act were acts without jurisdiction and therefore a nullity. Income Tax Act were acts without jurisdiction and therefore a nullity. For the aforesaid reasons the question No.(a) is answered in the negative. foresaid reasons the question No.(a) is answered in the negative. The point is, thus decided in favour of the assessee.The appeal stands allowed.” The point is, thus decided in favour of the assessee.The appeal stands allowed.” The point is, thus decided in favour of the assessee.The appeal stands allowed.” (Emphasis given by us) (Emphasis given by us) 28. From the aforesaid order of the Hon’ble High Court at Calcutta, we understand From the aforesaid order of the Hon’ble High Court at Calcutta, we understand From the aforesaid order of the Hon’ble High Court at Calcutta, we understand that in this case after the order u/s. 127 of the Act dated 03.09.2012 was passed by the that in this case after the order u/s. 127 of the Act dated 03.09.2012 was passed by the that in this case after the order u/s. 127 of the Act dated 03.09.2012 was passed by the CIT-2, Kolkata, he became functus officio and therefore the Hon’ble High Court held that 2, Kolkata, he became functus officio and therefore the Hon’ble High Court held that 2, Kolkata, he became functus officio and therefore the Hon’ble High Court held that he could not have exercised jurisdiction over the assessee’s case u/s. 263 of the Act and he could not have exercised jurisdiction over the assessee’s case u/s. 263 of the Act and he could not have exercised jurisdiction over the assessee’s case u/s. 263 of the Act and consequently therefore he erred in passing an order dated 26.03 2013 u/s 263 setting consequently therefore he erred in passing an order dated 26.03 2013 u/s 263 setting consequently therefore he erred in passing an order dated 26.03 2013 u/s 263 setting aside the order of the ITO, Ward aside the order of the ITO, Ward-4(1), Kolkata dated 21.05.2010. 29. Coming back to the case in hand, and having taken note of the ratio laid down to the case in hand, and having taken note of the ratio laid down to the case in hand, and having taken note of the ratio laid down by the Hon’ble jurisdictional High Court (supra), we note that in the present case, after by the Hon’ble jurisdictional High Court (supra), we note that in the present case, after by the Hon’ble jurisdictional High Court (supra), we note that in the present case, after the order of the CIT-V, New Delhi dated 08.10.2008 transferring the jurisdiction of the V, New Delhi dated 08.10.2008 transferring the jurisdiction of the V, New Delhi dated 08.10.2008 transferring the jurisdiction of the assessee’s case to DCIT, Central Circle, Ranchi, the CIT, Delhi became functus officio and case to DCIT, Central Circle, Ranchi, the CIT, Delhi became functus officio and case to DCIT, Central Circle, Ranchi, the CIT, Delhi became functus officio and thereby his subordinate officers viz., ACIT, Circle 21(1), New Delhi, could not have issued thereby his subordinate officers viz., ACIT, Circle 21(1), New Delhi, could not have issued thereby his subordinate officers viz., ACIT, Circle 21(1), New Delhi, could not have issued notice u/s. 143(2) dated 28.07.2016 and in that view of the matter the notice issued notice u/s. 143(2) dated 28.07.2016 and in that view of the matter the notice issued notice u/s. 143(2) dated 28.07.2016 and in that view of the matter the notice issued by the ACIT, Circle-21(1), New Delhi u/s 143(2)was without jurisdiction and, therefore, 21(1), New Delhi u/s 143(2)was without jurisdiction and, therefore, 21(1), New Delhi u/s 143(2)was without jurisdiction and, therefore, non-est in the eyes of law. est in the eyes of law. 30. Our above finding also finds support from the decision of this Tribunal in the Our above finding also finds support from the decision of this Tribunal in the Our above finding also finds support from the decision of this Tribunal in the case of Chankya Finvest Pvt Ltd Vs ITO (34 taxmann.com case of Chankya Finvest Pvt Ltd Vs ITO (34 taxmann.com 206). In that case the CIT Delhi 206). In that case the CIT Delhi had passed an order u/s 127 dated 04.01.2010 transferring jurisdiction over the had passed an order u/s 127 dated 04.01.2010 transferring jurisdiction over the had passed an order u/s 127 dated 04.01.2010 transferring jurisdiction over the assessee’s case from ITO, Delhi to ITO Kolkata. After the order u/s 127 was passed on assessee’s case from ITO, Delhi to ITO Kolkata. After the order u/s 127 was passed on assessee’s case from ITO, Delhi to ITO Kolkata. After the order u/s 127 was passed on 04.01.2010, the ITO at Delhi initiated reassessment proce 04.01.2010, the ITO at Delhi initiated reassessment proceedings after recording reasons edings after recording reasons and issued notice u/s 148 dated 25.03.2010 for AY 2003 and issued notice u/s 148 dated 25.03.2010 for AY 2003-04. Thereafter, without their 04. Thereafter, without their being fresh order u/s 124/ 127; the ITO, Delhi transferred the case records pertaining to being fresh order u/s 124/ 127; the ITO, Delhi transferred the case records pertaining to being fresh order u/s 124/ 127; the ITO, Delhi transferred the case records pertaining to reassessment for the AY 2003 reassessment for the AY 2003-04 to the charge of ITO, Kolkata. Taking recourse to ITO, Kolkata. Taking recourse to provisions of Section 124(5), ITO Kolkata continued with the reassessment proceedings provisions of Section 124(5), ITO Kolkata continued with the reassessment proceedings provisions of Section 124(5), ITO Kolkata continued with the reassessment proceedings from the stage at which the case records were transferred from Delhi and thereafter from the stage at which the case records were transferred from Delhi and thereafter from the stage at which the case records were transferred from Delhi and thereafter passed the order u/s 147/143(3).Before this Tribunal, passed the order u/s 147/143(3).Before this Tribunal, the assessee challenged validity of the assessee challenged validity of the proceedings and consequent order u/s 143(3)/147 on the ground that the notice u/s the proceedings and consequent order u/s 143(3)/147 on the ground that the notice u/s the proceedings and consequent order u/s 143(3)/147 on the ground that the notice u/s

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 148 was issued by an officer who did not hold valid jurisdiction over the assessee’s case. 148 was issued by an officer who did not hold valid jurisdiction over the assessee’s case. 148 was issued by an officer who did not hold valid jurisdiction over the assessee’s case. The Tribunal upholding the assessee’s obje The Tribunal upholding the assessee’s objection, observed as under: “3. Briefly stated facts are that the assessee filed its return of income at Delhi in the office of ITO, Ward Briefly stated facts are that the assessee filed its return of income at Delhi in the office of ITO, Ward Briefly stated facts are that the assessee filed its return of income at Delhi in the office of ITO, Ward-3(3) Delhi on 02-12-2003. Subsequently, notice u/s. 148 of the Act was issued on 25 Subsequently, notice u/s. 148 of the Act was issued on 25-03-2010 with the permission 2010 with the permission of Addl. CIT, Range-3, New Delhi. But, in the meantime, CIT 3, New Delhi. But, in the meantime, CIT-1, Delhi passed an order u/s. 127(2) transferring 1, Delhi passed an order u/s. 127(2) transferring the jurisdiction of this case vide its order No.CIT the jurisdiction of this case vide its order No.CIT-1/Cent/09-10/1874 dated 04-01-2010 from ITO, Ward 2010 from ITO, Ward- 3(3), New Delhi to ITO, Ward 3(3), New Delhi to ITO, Ward-6(1), Kolkata. The assessee claimed before the AO as well as before CIT(A) that 6(1), Kolkata. The assessee claimed before the AO as well as before CIT(A) that ITO, Ward-3(3), New Delhi did not have jurisdiction to issue notice u/s. 148 of the Act on 25 3(3), New Delhi did not have jurisdiction to issue notice u/s. 148 of the Act on 25 3(3), New Delhi did not have jurisdiction to issue notice u/s. 148 of the Act on 25-03-2010 as the case was transferred u/s. 127(2) of the Act from New Delhi to Kolkata on 04 case was transferred u/s. 127(2) of the Act from New Delhi to Kolkata on 04-01-2010. The assessee before 2010. The assessee before CIT(A) filed written submissions as under: CIT(A) filed written submissions as under: "This appeal is against the reopening of assessment u/s. 147 of the I. T. Act 1961. The assessee has "This appeal is against the reopening of assessment u/s. 147 of the I. T. Act 1961. The assessee has "This appeal is against the reopening of assessment u/s. 147 of the I. T. Act 1961. The assessee has challenged the reopening by the ITO Ward 3(3) Delhi. The notice u/s. 148 of the I.T. Act 1961 was issued by allenged the reopening by the ITO Ward 3(3) Delhi. The notice u/s. 148 of the I.T. Act 1961 was issued by allenged the reopening by the ITO Ward 3(3) Delhi. The notice u/s. 148 of the I.T. Act 1961 was issued by the ITO Delhi after receipt of approval from Additional CIT Delhi on 25 the ITO Delhi after receipt of approval from Additional CIT Delhi on 25-03-2010. However the CIT Delhi had passed an order u/s. 127 transferring the f However the CIT Delhi had passed an order u/s. 127 transferring the file to Kolkata on 4 ile to Kolkata on 4-1-2010 as such on 25-3-2010 the AO in Delhi did not have jurisdiction over the case, hence the reopening it without jurisdiction 2010 the AO in Delhi did not have jurisdiction over the case, hence the reopening it without jurisdiction 2010 the AO in Delhi did not have jurisdiction over the case, hence the reopening it without jurisdiction as it is based on the notice u/s. 148 of the I. T. Act, 1961 issued by the ITO Delhi. We have requested the as it is based on the notice u/s. 148 of the I. T. Act, 1961 issued by the ITO Delhi. We have requested the as it is based on the notice u/s. 148 of the I. T. Act, 1961 issued by the ITO Delhi. We have requested the AO at Kolkata to issue the copy of the order of 127 and 151 of the I.T. Act, 1961 but the same has not been issued Kolkata to issue the copy of the order of 127 and 151 of the I.T. Act, 1961 but the same has not been issued Kolkata to issue the copy of the order of 127 and 151 of the I.T. Act, 1961 but the same has not been issued yet. We therefore request you to either, call for the records and adjudicate the validity of reopening or grant an We therefore request you to either, call for the records and adjudicate the validity of reopening or grant an We therefore request you to either, call for the records and adjudicate the validity of reopening or grant an adjournment of 15 days to obtain certified copies of all related records so that we can represent the matter obtain certified copies of all related records so that we can represent the matter obtain certified copies of all related records so that we can represent the matter properly." The CIT(A) sent this written submission to ITO, Ward The CIT(A) sent this written submission to ITO, Ward-6(1), Kolkata vide letter No. CIT(A) 6(1), Kolkata vide letter No. CIT(A)- VI/Kol/Remand/2011-12/368 dated 20 12/368 dated 20-02-2010 and the AO sent its remand report vide letter No. Wd eport vide letter No. Wd- 6(1)/Kol/ChanakyaFinvest/11 6(1)/Kol/ChanakyaFinvest/11-12/826 dated 23-04-2010, which is as under: "Kindly refer to your letter No. CIT(A) "Kindly refer to your letter No. CIT(A)-VI/Kol/Remand Report/2011-12/368 dated 20.02.2012. 12/368 dated 20.02.2012. In this connection following information as available from the recor In this connection following information as available from the record are chronologically appended below: d are chronologically appended below: Date Date Happening Order u/s l27 passed by the Ld. CIT, Delhi Order u/s l27 passed by the Ld. CIT, Delhi-I, New 1. 04 1. 04-01-10 Delhi. 2. 23 2. 23-03-10 Proposal to re-open the case was sent to Ld. Addl. open the case was sent to Ld. Addl. CIT, Range-3 Delhi. 3. 25 3. 25-03-10 Delhi. Ld. Addl. CIT, Range-3, accorded the 3, accorded the approval for re-open the case. 4. 25 4. 25-03-10 Notice u/s 148 issued and served by ITO, Ward Notice u/s 148 issued and served by ITO, Ward- 3(3), New Delhi. 5. 30 5. 30-11-10 Record received by the under signed from ITO, Record received by the under signed from ITO, Ward-3(3), New Delhi. 6. 03 6. 03-12-10 The assessee complied to the notice u/s 148 vide The assessee complied to the notice u/s 148 vide petition dated 03.12.10. 7. 03 7. 03-12-10 Notice u/s 143(2) and 142(1) both were issued Notice u/s 143(2) and 142(1) both were issued and served. 8. 29 8. 29-12-10 Assessment completed u/s 147/144 as there were Assessment completed u/s 147/144 as there were non-compliance

Though the order u/s 127 was passed by Ld. CIT, Delhi Though the order u/s 127 was passed by Ld. CIT, Delhi-I, on 04-01-10, but till the time the records are not 10, but till the time the records are not transferred to the transferee AO, the jurisdiction lies with the Assessing Officer holding the charge over the transferred to the transferee AO, the jurisdiction lies with the Assessing Officer holding the charge over the transferred to the transferee AO, the jurisdiction lies with the Assessing Officer holding the charge over the

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. case and all action as per the law is case and all action as per the law is required to be initiated or taken by that jurisdictional AO only. Hence required to be initiated or taken by that jurisdictional AO only. Hence the jurisdictional AO at Delhi has rightly re the jurisdictional AO at Delhi has rightly re-opened the case on approval from higher authority and issued opened the case on approval from higher authority and issued notice u/s 148. On receiving the records on 30 On receiving the records on 30-11-10 the undersigned disposed off the case u/s. 147/144 as per the law d off the case u/s. 147/144 as per the law after offering reasonable opportunities of being heard to the assessee." after offering reasonable opportunities of being heard to the assessee." During the appellate proceedings on 16 During the appellate proceedings on 16-02-2010, CIT(A) recorded following order sheet entry: 2010, CIT(A) recorded following order sheet entry: "Mr. Miraj D. Shah, Advocate attended the proce "Mr. Miraj D. Shah, Advocate attended the proceedings & filed written submission of one paper along with edings & filed written submission of one paper along with the copy of reasons recorded, order sheet of 147 proceedings given. The appellant has submitted that file the copy of reasons recorded, order sheet of 147 proceedings given. The appellant has submitted that file the copy of reasons recorded, order sheet of 147 proceedings given. The appellant has submitted that file was transferred to Kolkata on 4 was transferred to Kolkata on 4-1-10 by order u/s 127. Copies of order u/s 127 and section 1 10 by order u/s 127. Copies of order u/s 127 and section 151 approved by Addl. CIT to be submitted tomorrow. Addl. CIT to be submitted tomorrow. The issue of jurisdiction of Delhi A.O. was not taken before the A.O. who completed the assessment. The issue of jurisdiction of Delhi A.O. was not taken before the A.O. who completed the assessment. The issue of jurisdiction of Delhi A.O. was not taken before the A.O. who completed the assessment. Adj. to 20-2-12." 4.CIT(A) discussed the issue and observed in paras 8 and 9 as under: CIT(A) discussed the issue and observed in paras 8 and 9 as under: "8. The appellant submitted during the appellate proceedings that he does not submit any additional submitted during the appellate proceedings that he does not submit any additional submitted during the appellate proceedings that he does not submit any additional evidences, books of account or other documents either before the appellate authority or Assessing Officer evidences, books of account or other documents either before the appellate authority or Assessing Officer evidences, books of account or other documents either before the appellate authority or Assessing Officer since these are not available with appellant. The appellant has neve since these are not available with appellant. The appellant has never taken objection regarding the r taken objection regarding the jurisdiction of issuance of notice u/s 148 by the Assessing Officer of New Delhi or initiation/continuation of jurisdiction of issuance of notice u/s 148 by the Assessing Officer of New Delhi or initiation/continuation of jurisdiction of issuance of notice u/s 148 by the Assessing Officer of New Delhi or initiation/continuation of assessment proceedings by the Income assessment proceedings by the Income-tax Officer, Ward 6(1), Kolkata before the Assessing Officer during tax Officer, Ward 6(1), Kolkata before the Assessing Officer during the assessment proceedings even when the authorised representative attended the proceedings on 08 ssment proceedings even when the authorised representative attended the proceedings on 08 ssment proceedings even when the authorised representative attended the proceedings on 08-12- 2010 and 16-12-2010. The authorised representative asked for the extension of time from Assessing Officer 2010. The authorised representative asked for the extension of time from Assessing Officer 2010. The authorised representative asked for the extension of time from Assessing Officer on 20-12-2010 but did not file any objection regarding th 2010 but did not file any objection regarding the jurisdiction of the Assessing Officer and did not e jurisdiction of the Assessing Officer and did not attend the proceedings thereafter. The assessment has been completed on 29 attend the proceedings thereafter. The assessment has been completed on 29-12-2010. 9. The Income-tax Officer, Ward (1) has submitted that the case records were not transferred to him and tax Officer, Ward (1) has submitted that the case records were not transferred to him and tax Officer, Ward (1) has submitted that the case records were not transferred to him and was still lying with ITO Ward 3(3), New Delhi on the date of issuance of notice u/s 148. In the absence of the with ITO Ward 3(3), New Delhi on the date of issuance of notice u/s 148. In the absence of the with ITO Ward 3(3), New Delhi on the date of issuance of notice u/s 148. In the absence of the transfer of case records, the jurisdiction is not transferred automatically since the ITO Ward 6(1), Kolkata transfer of case records, the jurisdiction is not transferred automatically since the ITO Ward 6(1), Kolkata transfer of case records, the jurisdiction is not transferred automatically since the ITO Ward 6(1), Kolkata did not know about the order passed u/s 127 by the C did not know about the order passed u/s 127 by the Commissioner of Income-tax-1, New Delhi." 1, New Delhi." And further, he decided the issue by dismissing the assessee's issue of reopening u/s. 148 of the Act, vide And further, he decided the issue by dismissing the assessee's issue of reopening u/s. 148 of the Act, vide And further, he decided the issue by dismissing the assessee's issue of reopening u/s. 148 of the Act, vide ground Nos. 17 to 20 as under: ground Nos. 17 to 20 as under: "17. The assessee had never questioned the jurisdiction of the Assessing Off "17. The assessee had never questioned the jurisdiction of the Assessing Officer in the course of assessment icer in the course of assessment proceedings. Section 124(3) of the Income proceedings. Section 124(3) of the Income-tax Act makes it clear that the jurisdiction of the Assessing Officer tax Act makes it clear that the jurisdiction of the Assessing Officer cannot be challenged after the expiry of one month from the date of service of notice on the assessee under cannot be challenged after the expiry of one month from the date of service of notice on the assessee under cannot be challenged after the expiry of one month from the date of service of notice on the assessee under section 143(2)/148. The Hon'ble Allahabad High Court in the case of Hindustan Transport Co. v. IAC tion 143(2)/148. The Hon'ble Allahabad High Court in the case of Hindustan Transport Co. v. IAC tion 143(2)/148. The Hon'ble Allahabad High Court in the case of Hindustan Transport Co. v. IAC [1991] 189 ITR 326 (All.)has held that when there is a time has held that when there is a time-limit prescribed in the Act to which t limit prescribed in the Act to which the plea of the jurisdiction may be raised, it cannot be challenged before the appellate authorities. This judgment of the jurisdiction may be raised, it cannot be challenged before the appellate authorities. This judgment of the jurisdiction may be raised, it cannot be challenged before the appellate authorities. This judgment of the Hon'ble Allahabad High Court has been upheld by the Hon'ble Supreme Court reported at [1991] 188 ITR Hon'ble Allahabad High Court has been upheld by the Hon'ble Supreme Court reported at [1991] 188 ITR Hon'ble Allahabad High Court has been upheld by the Hon'ble Supreme Court reported at [1991] 188 ITR (St.) 84. The Hon'ble Calcutta Hi (St.) 84. The Hon'ble Calcutta High Court in the case of Grindlays Bank Ltd. v. CIT [1992] 193 ITR 457 (Cal.) [1992] 193 ITR 457 (Cal.) has held that the assessee who had not raised the objection at the time of hearing of the case by the has held that the assessee who had not raised the objection at the time of hearing of the case by the has held that the assessee who had not raised the objection at the time of hearing of the case by the Assessing Officer or within the period of one month as is prescribed under section 124, the same could not be er or within the period of one month as is prescribed under section 124, the same could not be er or within the period of one month as is prescribed under section 124, the same could not be challenged subsequently. 18. The order u/s 127 was passed by Ld. CIT, Delhi 18. The order u/s 127 was passed by Ld. CIT, Delhi-l, on 04-01-10, but before the time the records were not 10, but before the time the records were not transferred to the transferee Assessing Officer, the jurisdiction lies with the Assessing Officer holding the e Assessing Officer, the jurisdiction lies with the Assessing Officer holding the e Assessing Officer, the jurisdiction lies with the Assessing Officer holding the charge over the case and all action as per the law is required to be initiated or taken by that jurisdictional charge over the case and all action as per the law is required to be initiated or taken by that jurisdictional charge over the case and all action as per the law is required to be initiated or taken by that jurisdictional Assessing Officer only as per the submissions of current Assess Assessing Officer only as per the submissions of current Assessing Officer i.e. Income-tax Officer, Ward 6(1), tax Officer, Ward 6(1), Kolkata and he further submitted that the jurisdictional Assessing Officer at Delhi has rightly re Kolkata and he further submitted that the jurisdictional Assessing Officer at Delhi has rightly re Kolkata and he further submitted that the jurisdictional Assessing Officer at Delhi has rightly re-opened the case after due approval from his jurisdictional Joint commissioner of Income case after due approval from his jurisdictional Joint commissioner of Income-tax and issued notice tax and issued notice u/s 148 before actually transferring the case. before actually transferring the case. 19. The appellant never raised the question of jurisdiction before the Assessing Officer either at New Delhi 19. The appellant never raised the question of jurisdiction before the Assessing Officer either at New Delhi 19. The appellant never raised the question of jurisdiction before the Assessing Officer either at New Delhi when the notice u/s 148 was issued or at the time of assessment with the Assessing officer at Kolka when the notice u/s 148 was issued or at the time of assessment with the Assessing officer at Kolka when the notice u/s 148 was issued or at the time of assessment with the Assessing officer at Kolkata. There was a possibility to the Assessing Officer at New Delhi to get the records transferred immediately to Kolkata was a possibility to the Assessing Officer at New Delhi to get the records transferred immediately to Kolkata was a possibility to the Assessing Officer at New Delhi to get the records transferred immediately to Kolkata and a fresh notice may have been issued during the time and a fresh notice may have been issued during the time-limitation by Assessing Officer at Kolkata. limitation by Assessing Officer at Kolkata.

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 20. Following the law laid down and upheld by the Hon'ble appellate authorities as discussed above, the 20. Following the law laid down and upheld by the Hon'ble appellate authorities as discussed above, the 20. Following the law laid down and upheld by the Hon'ble appellate authorities as discussed above, the legal provisions of section 124(3) on this issue and in the facts and circumstances of the case, it is held that legal provisions of section 124(3) on this issue and in the facts and circumstances of the case, it is held that legal provisions of section 124(3) on this issue and in the facts and circumstances of the case, it is held that the assessment order passed u/s 147/144 the assessment order passed u/s 147/144 of the I.T. Act 1961 is not without jurisdiction and is as per law of the I.T. Act 1961 is not without jurisdiction and is as per law and hence the assessment order passed by the Assessing Officer is held to be a valid order. In the facts and and hence the assessment order passed by the Assessing Officer is held to be a valid order. In the facts and and hence the assessment order passed by the Assessing Officer is held to be a valid order. In the facts and circumstances of the case the proceedings u/s 148 of the I T Act 1961 is upheld circumstances of the case the proceedings u/s 148 of the I T Act 1961 is upheld to be valid in absence of any to be valid in absence of any objection being raised before the Assessing Officer issuing the notice u/s 148 and/or completing the objection being raised before the Assessing Officer issuing the notice u/s 148 and/or completing the objection being raised before the Assessing Officer issuing the notice u/s 148 and/or completing the assessment. In the facts and circumstances of the case it is also held that appellant was given proper assessment. In the facts and circumstances of the case it is also held that appellant was given proper assessment. In the facts and circumstances of the case it is also held that appellant was given proper opportunity after serving the notice u/s 148 and during assessment by the Assessing Officer. Hence, these ving the notice u/s 148 and during assessment by the Assessing Officer. Hence, these ving the notice u/s 148 and during assessment by the Assessing Officer. Hence, these three grounds of appeal are dismissed." three grounds of appeal are dismissed." Aggrieved, assessee is in appeal before us. Aggrieved, assessee is in appeal before us. 5. We have heard rival submissions and gone through facts and circumstances of the case We have heard rival submissions and gone through facts and circumstances of the case We have heard rival submissions and gone through facts and circumstances of the case. First of all, it is to be seen that what is the chronology of events, as recorded by the AO in his remand report given, during be seen that what is the chronology of events, as recorded by the AO in his remand report given, during be seen that what is the chronology of events, as recorded by the AO in his remand report given, during course of appellate proceedings before CIT(A). The chronology of events is as under: course of appellate proceedings before CIT(A). The chronology of events is as under: Date Happening Happening 1. 04-01-10 Order u/s l27 Order u/s l27 passed by the Ld. CIT, Delhi-I, New Delhi. 2. 23-03-10 Proposal to re Proposal to re-open the case was sent to Ld. Addl. CIT, Range open the case was sent to Ld. Addl. CIT, Range-3, Delhi. 3. 25-03-10 Ld. Addl. CIT, Range Ld. Addl. CIT, Range-3, accorded the approval for re-open the case. open the case. 4. 25-03-10 Notice u/s 148 issued and served by ITO, Ward Notice u/s 148 issued and served by ITO, Ward-3(3), New Delhi. 3(3), New Delhi. 5. 30-11-10 Record received by the under signed from ITO, Ward Record received by the under signed from ITO, Ward-3(3), New Delhi. 3(3), New Delhi. 6. 03-12-10 The assessee complied to the notice u/s 148 vide petition dated 03 The assessee complied to the notice u/s 148 vide petition dated 03 The assessee complied to the notice u/s 148 vide petition dated 03-12-10. 7. 03-12-10 Notice u/s Notice u/s 143(2) and 142(1) both were issued and served. 143(2) and 142(1) both were issued and served. 8. 29-12-10 Assessment completed u/s 147/144 as there were non Assessment completed u/s 147/144 as there were non-compliance compliance 6. We find that the AO in his remand proceedings noted that although the order u/s. 127 of the Act was We find that the AO in his remand proceedings noted that although the order u/s. 127 of the Act was We find that the AO in his remand proceedings noted that although the order u/s. 127 of the Act was passed by CIT, Del-1 on 04-01 01-2010, reasons were recorded for reopening on 23-03 03-2010 for issuance of notice u/s. 148 of the Act on 25 notice u/s. 148 of the Act on 25-03-2010 because till the time the records are not transferred to the the time the records are not transferred to the transferee AO, according to him, the jurisdiction lies with the AO holding the charge over the case and all transferee AO, according to him, the jurisdiction lies with the AO holding the charge over the case and all transferee AO, according to him, the jurisdiction lies with the AO holding the charge over the case and all action as per law are required to be initiated or taken by that jurisdiction AO only. Even the CIT( action as per law are required to be initiated or taken by that jurisdiction AO only. Even the CIT( action as per law are required to be initiated or taken by that jurisdiction AO only. Even the CIT(A) noted that the assessee has never objected regarding the jurisdiction of issuance of notice u/s. 148 of the Act by the that the assessee has never objected regarding the jurisdiction of issuance of notice u/s. 148 of the Act by the that the assessee has never objected regarding the jurisdiction of issuance of notice u/s. 148 of the Act by the AO of New Delhi or initiation/continuation of assessment proceedings by the ITO, Ward AO of New Delhi or initiation/continuation of assessment proceedings by the ITO, Ward AO of New Delhi or initiation/continuation of assessment proceedings by the ITO, Ward-6(1), Kolkata before the AO during the assessment proceedings. Whether such a plea can be accepted or not? Before us, Ld. Sr. DR t proceedings. Whether such a plea can be accepted or not? Before us, Ld. Sr. DR t proceedings. Whether such a plea can be accepted or not? Before us, Ld. Sr. DR heavily relied on the decision of Hon'ble Punjab & Haryana High Court in the case of SubhashChander v. CIT heavily relied on the decision of Hon'ble Punjab & Haryana High Court in the case of SubhashChander v. CIT heavily relied on the decision of Hon'ble Punjab & Haryana High Court in the case of SubhashChander v. CIT [2008] 166 Taxman 307 wherein the non wherein the non-objection as per section 124(2) read with section 124(4) of the objection as per section 124(2) read with section 124(4) of the Act, the jurisdiction assumed by AO was held to be valid. Further, there was reliance by Sr. DR on the case Act, the jurisdiction assumed by AO was held to be valid. Further, there was reliance by Sr. DR on the case Act, the jurisdiction assumed by AO was held to be valid. Further, there was reliance by Sr. DR on the case law of Hon'ble Allahabad High Court in the case of CIT v. British I law of Hon'ble Allahabad High Court in the case of CIT v. British India Corpn. Ltd. [2011] 337 ITR 64 [2012] [2011] 337 ITR 64 [2012] 20 taxmann.com 446, wherein assumption of jurisdiction, by AO for assessment, u/s. 124 of the Act that , wherein assumption of jurisdiction, by AO for assessment, u/s. 124 of the Act that , wherein assumption of jurisdiction, by AO for assessment, u/s. 124 of the Act that when the ITO had jurisdiction when assessment pro when the ITO had jurisdiction when assessment proceedings commenced and a draft assessment order was ceedings commenced and a draft assessment order was submitted to IAC but due to subsequent change in jurisdiction, unless the same brought to the notice of the submitted to IAC but due to subsequent change in jurisdiction, unless the same brought to the notice of the submitted to IAC but due to subsequent change in jurisdiction, unless the same brought to the notice of the authority concerned, the assessment would not be vitiated. We are with the argument of Ld. Sr. D authority concerned, the assessment would not be vitiated. We are with the argument of Ld. Sr. D authority concerned, the assessment would not be vitiated. We are with the argument of Ld. Sr. DR in respect to this argument that where the jurisdiction assumed by the AO, assessee has to object to the same respect to this argument that where the jurisdiction assumed by the AO, assessee has to object to the same respect to this argument that where the jurisdiction assumed by the AO, assessee has to object to the same u/s. 124 of the Act in case hr us aggrieved. But, what will be the effect of the order of Commissioner of u/s. 124 of the Act in case hr us aggrieved. But, what will be the effect of the order of Commissioner of u/s. 124 of the Act in case hr us aggrieved. But, what will be the effect of the order of Commissioner of Income-tax transferring the jurisdicti tax transferring the jurisdiction u/s. 127 of the Act. We are of the view, that when any case of a on u/s. 127 of the Act. We are of the view, that when any case of a particular assessee which is transferred from one AO to another AO, whether within the state or without it, particular assessee which is transferred from one AO to another AO, whether within the state or without it, particular assessee which is transferred from one AO to another AO, whether within the state or without it, all proceedings which are pending against the assessee under the Act in respect all proceedings which are pending against the assessee under the Act in respect of the same year as also of the same year as also previous years are meant to be transferred simultaneously and all proceedings under the Act which may be previous years are meant to be transferred simultaneously and all proceedings under the Act which may be previous years are meant to be transferred simultaneously and all proceedings under the Act which may be commenced after the date of such transfer in respect of any year whatever are also included therein, so that commenced after the date of such transfer in respect of any year whatever are also included therein, so that commenced after the date of such transfer in respect of any year whatever are also included therein, so that the AO to whom such case is transferred would be in a position to continue the pending proceedings and ch case is transferred would be in a position to continue the pending proceedings and ch case is transferred would be in a position to continue the pending proceedings and also institute further proceedings against the assessee in respect of any year. The proceedings pending at also institute further proceedings against the assessee in respect of any year. The proceedings pending at also institute further proceedings against the assessee in respect of any year. The proceedings pending at the date of transfer can be thus continued but in the case of s the date of transfer can be thus continued but in the case of such proceedings the provisions in regard to uch proceedings the provisions in regard to issuance of notices contained in the main body of section 127(2) of the Act would apply and it would not be issuance of notices contained in the main body of section 127(2) of the Act would apply and it would not be issuance of notices contained in the main body of section 127(2) of the Act would apply and it would not be necessary to reissue any notice already issued by AO from whom the case is transferred. For this, assess necessary to reissue any notice already issued by AO from whom the case is transferred. For this, assess necessary to reissue any notice already issued by AO from whom the case is transferred. For this, assessee

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. has relied on the decision of Hon'ble P&H High Court in the case of Lt. Col. Paramjit Singh v. CIT has relied on the decision of Hon'ble P&H High Court in the case of Lt. Col. Paramjit Singh v. CIT has relied on the decision of Hon'ble P&H High Court in the case of Lt. Col. Paramjit Singh v. CIT [1996] 89 Taxman 536. 7. After going through the provisions of sections 120, 124 and 127 of After going through the provisions of sections 120, 124 and 127 of the Act, the plenary powers regarding the Act, the plenary powers regarding conferment of jurisdiction has been vested, by delegation by the statute, on the Commissioner having conferment of jurisdiction has been vested, by delegation by the statute, on the Commissioner having conferment of jurisdiction has been vested, by delegation by the statute, on the Commissioner having jurisdiction in respect of assessment of the case. This power, in the absence of any prohibition or restriction, jurisdiction in respect of assessment of the case. This power, in the absence of any prohibition or restriction, jurisdiction in respect of assessment of the case. This power, in the absence of any prohibition or restriction, empowers the Commissioner of Income wers the Commissioner of Income-tax to effect realignment of jurisdiction. The Commissioner of tax to effect realignment of jurisdiction. The Commissioner of Income-tax by order or direction, while divesting these authorities of the power in respect of performance of tax by order or direction, while divesting these authorities of the power in respect of performance of tax by order or direction, while divesting these authorities of the power in respect of performance of their duties under the Act conferred earlier, may c their duties under the Act conferred earlier, may confer such jurisdiction to other authorities under the Act, onfer such jurisdiction to other authorities under the Act, as he may direct. As soon as such order or direction is made completely divesting the jurisdiction of the as he may direct. As soon as such order or direction is made completely divesting the jurisdiction of the as he may direct. As soon as such order or direction is made completely divesting the jurisdiction of the authorities so long so empowered, all proceedings including those which might arise therea authorities so long so empowered, all proceedings including those which might arise therea authorities so long so empowered, all proceedings including those which might arise thereafter, before them as also proceedings pending before them, come within the jurisdiction of the newly conferred authorities as also proceedings pending before them, come within the jurisdiction of the newly conferred authorities as also proceedings pending before them, come within the jurisdiction of the newly conferred authorities unless any specific provision is made in respect of any pending proceedings. Such consequence is inevitable unless any specific provision is made in respect of any pending proceedings. Such consequence is inevitable unless any specific provision is made in respect of any pending proceedings. Such consequence is inevitable when there is withdrawal of jurisdiction, which means automatic extinction of jurisdiction of one authority of jurisdiction, which means automatic extinction of jurisdiction of one authority of jurisdiction, which means automatic extinction of jurisdiction of one authority with simultaneous conferment of jurisdiction on another authority under the Act in respect of all pending with simultaneous conferment of jurisdiction on another authority under the Act in respect of all pending with simultaneous conferment of jurisdiction on another authority under the Act in respect of all pending and future proceedings. Explanation to section 127 of the Act makes and future proceedings. Explanation to section 127 of the Act makes it clear that the word "case" in relation it clear that the word "case" in relation to any person whose name is specified in the order of transfer means all proceedings under the Act in to any person whose name is specified in the order of transfer means all proceedings under the Act in to any person whose name is specified in the order of transfer means all proceedings under the Act in respect of any year which may be pending on the date of the transfer, and also includes all proceedings respect of any year which may be pending on the date of the transfer, and also includes all proceedings respect of any year which may be pending on the date of the transfer, and also includes all proceedings under the Act which may be commenced after the date of transfer in respect of any year. The word "case" is he Act which may be commenced after the date of transfer in respect of any year. The word "case" is he Act which may be commenced after the date of transfer in respect of any year. The word "case" is thus used in a comprehensive sense of including both pending proceedings and proceedings to be instituted thus used in a comprehensive sense of including both pending proceedings and proceedings to be instituted thus used in a comprehensive sense of including both pending proceedings and proceedings to be instituted in the future. Consequently, an order of transfer in the future. Consequently, an order of transfer can be validly made even if there be no proceedings pending can be validly made even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred. place before the officer to whom the case of the assessee is transferred. 8. In view of the above principle regarding jurisdiction and facts of the present case, the order passed by CIT the above principle regarding jurisdiction and facts of the present case, the order passed by CIT the above principle regarding jurisdiction and facts of the present case, the order passed by CIT- 1, Delhi, transferring jurisdiction from ITO, Ward 1, Delhi, transferring jurisdiction from ITO, Ward-3(3), New Delhi on 04-01-2010, subsequent action of the 2010, subsequent action of the AO i.e. ITO, Ward-3(3), New Delhi issuing notice u/ 3(3), New Delhi issuing notice u/s. 148 of the Act dated 25-03-2010 is invalid because the 2010 is invalid because the jurisdiction from ITO, Ward jurisdiction from ITO, Ward-3(3), New Delhi by CIT-1, Delhi to ITO, Ward-6(1), Kolkata. At the time of 6(1), Kolkata. At the time of passing of order by CIT-1, Delhi transferring jurisdiction from ITO, Ward 1, Delhi transferring jurisdiction from ITO, Ward-3(3), New Delhi dated 3(3), New Delhi dated 04-01-2010 to ITO, Ward-6(1), Kolkata, there is no proceedings pending before the ITO, Delhi and the transfer order for 6(1), Kolkata, there is no proceedings pending before the ITO, Delhi and the transfer order for 6(1), Kolkata, there is no proceedings pending before the ITO, Delhi and the transfer order for jurisdiction was passed on that date. The CIT, Delhi jurisdiction was passed on that date. The CIT, Delhi-1 passed order u/s. 127 of the Act on 01 1 passed order u/s. 127 of the Act on 01-01-2010 transferring the jurisdiction of transferring the jurisdiction of the assessee to ITO, Wd-6(1), Kolkata and the jurisdiction in respect to every 6(1), Kolkata and the jurisdiction in respect to every action for all assessment years lies with the ITO, Wd action for all assessment years lies with the ITO, Wd-6(1), Kolkata and only he is competent to issue notice 6(1), Kolkata and only he is competent to issue notice u/s. 148 of the Act. In such circumstances, the notice issued u/s. 1 u/s. 148 of the Act. In such circumstances, the notice issued u/s. 148 of the Act by the ITO, Ward 48 of the Act by the ITO, Ward-3(3), New Delhi is bad and illegal in view of the clear provisions of the Act because an order for transfer of case was Delhi is bad and illegal in view of the clear provisions of the Act because an order for transfer of case was Delhi is bad and illegal in view of the clear provisions of the Act because an order for transfer of case was validly made by CIT and the purpose for transfer was simply that all future proceedings are to be taken b validly made by CIT and the purpose for transfer was simply that all future proceedings are to be taken b validly made by CIT and the purpose for transfer was simply that all future proceedings are to be taken by ITO, Ward-6(1), Kolkata w.e.f. 04 6(1), Kolkata w.e.f. 04-01-2010. Hence, the notice issued u/s. 148 of the Act dated 25.03.2010 is 2010. Hence, the notice issued u/s. 148 of the Act dated 25.03.2010 is quashed. 9. In the result, appeal of assessee is allowed.” In the result, appeal of assessee is allowed.” 31. We further find that the decision of the Hon’ble Bombay High Court in the case We further find that the decision of the Hon’ble Bombay High Court in the case We further find that the decision of the Hon’ble Bombay High Court in the case of Fiat India Automobiles Ltd Vs Vijender Singh (211 Taxman 570) support the legal iat India Automobiles Ltd Vs Vijender Singh (211 Taxman 570) support the legal iat India Automobiles Ltd Vs Vijender Singh (211 Taxman 570) support the legal ground canvassed by the appellant before us. The relevant facts and findings of the said ground canvassed by the appellant before us. The relevant facts and findings of the said ground canvassed by the appellant before us. The relevant facts and findings of the said case were as follows: “3. The basic argument of the Petitioner is that once the CIT The basic argument of the Petitioner is that once the CIT-10 Mumbai in exercise of the powers vested in umbai in exercise of the powers vested in him under Section 127(2) of the Act has transferred the power to assess the Petitioner on 22.11.2011 from him under Section 127(2) of the Act has transferred the power to assess the Petitioner on 22.11.2011 from him under Section 127(2) of the Act has transferred the power to assess the Petitioner on 22.11.2011 from ACIT-10(1) Mumbai to DCIT, Circle 10(1) Mumbai to DCIT, Circle-1(2) Pune, then the ACIT-10(1) would have no jurisdiction to issue the 10(1) would have no jurisdiction to issue the impugned notice dated 30.03.2012 and therefore, the said notice dated 30.03.2012 is liable to be quashed ugned notice dated 30.03.2012 and therefore, the said notice dated 30.03.2012 is liable to be quashed ugned notice dated 30.03.2012 and therefore, the said notice dated 30.03.2012 is liable to be quashed and set aside. 4. The relevant facts are that on shifting the registered office of the Petitioner from Mumbai to Pune, the The relevant facts are that on shifting the registered office of the Petitioner from Mumbai to Pune, the The relevant facts are that on shifting the registered office of the Petitioner from Mumbai to Pune, the Petitioner in June-July, 2009 h July, 2009 had applied for transfer of assessment records from Mumbai to Pune. After, ad applied for transfer of assessment records from Mumbai to Pune. After, exchange of several letters, the CIT exchange of several letters, the CIT-10 Mumbai by his order dated 22.11.2011 transferred the powers to 10 Mumbai by his order dated 22.11.2011 transferred the powers to assess the petitioner from ACIT assess the petitioner from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune. Thus, from 22.11.2011 ACIT rom 22.11.2011 ACIT-10(1) Mumbai did not have any power to assess or reassess the petitioner. Mumbai did not have any power to assess or reassess the petitioner. 5. It is not in dispute that on transfer of the jurisdiction from Mumbai to Pune, the Additional CIT, (TP) Pune It is not in dispute that on transfer of the jurisdiction from Mumbai to Pune, the Additional CIT, (TP) Pune It is not in dispute that on transfer of the jurisdiction from Mumbai to Pune, the Additional CIT, (TP) Pune has assumed jurisdiction and accordingly issued a has assumed jurisdiction and accordingly issued a notice dated 29.03.2012 to the Petitioner under Section notice dated 29.03.2012 to the Petitioner under Section 92CA of the Act relating to Assessment year 2009 92CA of the Act relating to Assessment year 2009-2010.

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 6. However, the ACIT-10(1) Mumbai has issued the impugned notice on 30.03.2012 under Section 14 8 of the 10(1) Mumbai has issued the impugned notice on 30.03.2012 under Section 14 8 of the 10(1) Mumbai has issued the impugned notice on 30.03.2012 under Section 14 8 of the Act with a view to reopen the assessment Act with a view to reopen the assessment for A.Y. 2005-06. The assessee by its letter dated 24.04.2012 06. The assessee by its letter dated 24.04.2012 objected to the impugned notice by specifically stating that pursuant to the order of CIT dated 22.11.2011, objected to the impugned notice by specifically stating that pursuant to the order of CIT dated 22.11.2011, objected to the impugned notice by specifically stating that pursuant to the order of CIT dated 22.11.2011, the ACIT-10(1) would have no locus standi or jurisdiction to issue the impugned notic 10(1) would have no locus standi or jurisdiction to issue the impugned notice dated 30.03.2012. As e dated 30.03.2012. As there was no reply, the present writ petition is filed inter alia on the ground that once the jurisdiction to there was no reply, the present writ petition is filed inter alia on the ground that once the jurisdiction to there was no reply, the present writ petition is filed inter alia on the ground that once the jurisdiction to assess/reassess the petitioner vested in the ACIT assess/reassess the petitioner vested in the ACIT-10(1) is divested by the order of the CIT 10(1) is divested by the order of the CIT-10 Mumbai dated 22.11.2011, the ACIT-10(1) Mumbai would cease to have power to assess or reassess the petitioner and 10(1) Mumbai would cease to have power to assess or reassess the petitioner and 10(1) Mumbai would cease to have power to assess or reassess the petitioner and hence, the impugned notice issued by ACIT hence, the impugned notice issued by ACIT-10(1) Mumbai being without jurisdiction is liable to be quashed 10(1) Mumbai being without jurisdiction is liable to be quashed and set aside. 7. In the affidavit-in-reply filed by the DCIT reply filed by the DCIT-10(1) Mumbai dated 8.10.2012 it is stated that by a (1) Mumbai dated 8.10.2012 it is stated that by a corrigendum order dated 27.03.2012, the CIT corrigendum order dated 27.03.2012, the CIT-10 Mumbai has temporarily withdrawn/cancelled the earlier 10 Mumbai has temporarily withdrawn/cancelled the earlier transfer order dated 22.11.2011 for the sake of administrative convenience and therefore, the notice dat transfer order dated 22.11.2011 for the sake of administrative convenience and therefore, the notice dat transfer order dated 22.11.2011 for the sake of administrative convenience and therefore, the notice dated 30.03.2012 would be valid. It is the case of the petitioner that neither any notice to pass a corrigendum 30.03.2012 would be valid. It is the case of the petitioner that neither any notice to pass a corrigendum 30.03.2012 would be valid. It is the case of the petitioner that neither any notice to pass a corrigendum order was issued to the petitioner nor the alleged corrigendum order dated 27.03.2012 has been served order was issued to the petitioner nor the alleged corrigendum order dated 27.03.2012 has been served order was issued to the petitioner nor the alleged corrigendum order dated 27.03.2012 has been served upon the petitioner till date. 8. Mr. Pinto, learned Counsel for the Revenue on instruction from CIT learned Counsel for the Revenue on instruction from CIT-10 Mumbai informs us that there is no 10 Mumbai informs us that there is no proof of serving the corrigendum order dated 27.03.2012 upon the petitioner. It is neither the case of the proof of serving the corrigendum order dated 27.03.2012 upon the petitioner. It is neither the case of the proof of serving the corrigendum order dated 27.03.2012 upon the petitioner. It is neither the case of the revenue that before passing the corrigendum any notice revenue that before passing the corrigendum any notice was issued to the petitioner nor it is the case of the was issued to the petitioner nor it is the case of the revenue that the corrigendum order was passed after hearing the petitioner. revenue that the corrigendum order was passed after hearing the petitioner. 9. Although in the affidavit in reply the revenue claims to have annexed a copy of the corrigendum order Although in the affidavit in reply the revenue claims to have annexed a copy of the corrigendum order Although in the affidavit in reply the revenue claims to have annexed a copy of the corrigendum order dated 27.03.2012 no such order was in fact annexed to the affidavit such order was in fact annexed to the affidavit-in-reply. It is only during the course of reply. It is only during the course of hearing the Counsel for the revenue admitted the lapse and tendered a copy of the letter dated 20.03.2012 hearing the Counsel for the revenue admitted the lapse and tendered a copy of the letter dated 20.03.2012 hearing the Counsel for the revenue admitted the lapse and tendered a copy of the letter dated 20.03.2012 addressed by ACIT-10(1) Mumbai to CIT 10(1) Mumbai to CIT-10 Mumbai as well as the corrigendum order dated 27.03.2012 to the corrigendum order dated 27.03.2012 to the Court as also to the Counsel for the Petitioner. the Court as also to the Counsel for the Petitioner. ….. 11. The corrigendum order dated 27/3/2012 passed by CIT . The corrigendum order dated 27/3/2012 passed by CIT-10 Mumbai reads thus:- …… 12. The question therefore to be considered is, when the CIT . The question therefore to be considered is, when the CIT-10 Mumbai has transferred the jurisdiction to 10 Mumbai has transferred the jurisdiction to assess/reassess the petitioner from ACIT assess/reassess the petitioner from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune under Section 127 of the 1(2) Pune under Section 127 of the Act after hearing the petitioner on 22.11.2011, Act after hearing the petitioner on 22.11.2011, whether the CIT-10 Mumbai at the instance of ACIT 10 Mumbai at the instance of ACIT-10(1) Mumbai is justified in issuing a corrigendum order on 27.03.2012 behind the back of the petitioner & Mumbai is justified in issuing a corrigendum order on 27.03.2012 behind the back of the petitioner & Mumbai is justified in issuing a corrigendum order on 27.03.2012 behind the back of the petitioner & whether the ACIT-10(1) Mumbai is justified in issuing the impugned notice under Section 148 of the 10(1) Mumbai is justified in issuing the impugned notice under Section 148 of the 10(1) Mumbai is justified in issuing the impugned notice under Section 148 of the Act dated 30.03.2012 on the basis of the said corrigendum order dated 27.03.2012 which is passed without dated 30.03.2012 on the basis of the said corrigendum order dated 27.03.2012 which is passed without dated 30.03.2012 on the basis of the said corrigendum order dated 27.03.2012 which is passed without issuing a notice to the petitioner, without hearing the petitioner and which is uncommunicated to the issuing a notice to the petitioner, without hearing the petitioner and which is uncommunicated to the issuing a notice to the petitioner, without hearing the petitioner and which is uncommunicated to the petitioner. 13. Mr. Pinto, learned Counsel for t Mr. Pinto, learned Counsel for the Revenue does not dispute that the corrigendum order was passed he Revenue does not dispute that the corrigendum order was passed without issuing notice and without hearing the petitioner and further admits that the said corrigendum without issuing notice and without hearing the petitioner and further admits that the said corrigendum without issuing notice and without hearing the petitioner and further admits that the said corrigendum order was not served upon the petitioner till date and that he has tendered a copy of t order was not served upon the petitioner till date and that he has tendered a copy of t order was not served upon the petitioner till date and that he has tendered a copy of the said corrigendum order upon the counsel for the petitioner today in Court. However, he submits that once the corrigendum order upon the counsel for the petitioner today in Court. However, he submits that once the corrigendum order upon the counsel for the petitioner today in Court. However, he submits that once the corrigendum order was passed by the CIT- -10 Mumbai on 27.03.2012 the ACIT-10(1) Mumbai was justified in issuing the 10(1) Mumbai was justified in issuing the impugned notice dated 30.03.2 impugned notice dated 30.03.2012. 14. In our opinion, the conduct of ACIT In our opinion, the conduct of ACIT-10(1) Mumbai as well as CIT-10 Mumbai is highly deplorable. Once 10 Mumbai is highly deplorable. Once the jurisdiction to assess the petitioner was transferred by the CIT the jurisdiction to assess the petitioner was transferred by the CIT-10 Mumbai from ACIT 10 Mumbai from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune by order dated 22.1 1(2) Pune by order dated 22.11.2011 it was totally improper on the part of ACIT 1.2011 it was totally improper on the part of ACIT-10(1) Mumbai to request the CIT-10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional 10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional 10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional issue. Making such a request on the part of ACIT issue. Making such a request on the part of ACIT-10(1) Mumbai to the CIT-10 Mumbai in our 10 Mumbai in our opinion, was in gross abuse of the process of law. If there was any time barring issue, the ACIT gross abuse of the process of law. If there was any time barring issue, the ACIT-10(1) Mumbai ought to have 10(1) Mumbai ought to have asked his counterpart at Pune to whom the jurisdiction was transferred to take appropriate steps in the asked his counterpart at Pune to whom the jurisdiction was transferred to take appropriate steps in the asked his counterpart at Pune to whom the jurisdiction was transferred to take appropriate steps in the matter instead of taking steps to circumvent the jurisdictional issue. It does not befit ACIT eps to circumvent the jurisdictional issue. It does not befit ACIT eps to circumvent the jurisdictional issue. It does not befit ACIT-10(1) Mumbai to indulge in circumventing the provisions of law and we strongly condemn the conduct of ACIT indulge in circumventing the provisions of law and we strongly condemn the conduct of ACIT indulge in circumventing the provisions of law and we strongly condemn the conduct of ACIT-10(1) Mumbai in that behalf. Instead of bringing to book the persons who circumven in that behalf. Instead of bringing to book the persons who circumvent the provisions of law, the ACIT t the provisions of law, the ACIT-10(1) Mumbai has himself indulged in circumventing the provisions of law which is totally disgraceful. Mumbai has himself indulged in circumventing the provisions of law which is totally disgraceful. Mumbai has himself indulged in circumventing the provisions of law which is totally disgraceful.

27 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 15. In any event, the CIT-10 Mumbai ought not to have succumbed to the unjust demands of ACIT 10 Mumbai ought not to have succumbed to the unjust demands of ACIT 10 Mumbai ought not to have succumbed to the unjust demands of ACIT-10(1) and instead ought to have admonished the ACIT o have admonished the ACIT-10(1) for making such unjust request. The CIT 10(1) for making such unjust request. The CIT-10 Mumbai ought to have known that there is no provision under the Act which empowers the CIT to temporarily ought to have known that there is no provision under the Act which empowers the CIT to temporarily ought to have known that there is no provision under the Act which empowers the CIT to temporarily withdraw the order passed by him under Section 127(2) of the Act for the s withdraw the order passed by him under Section 127(2) of the Act for the sake of administrative ake of administrative convenience or otherwise. If the CIT convenience or otherwise. If the CIT-10 Mumbai was honestly of the opinion that the order passed under 10 Mumbai was honestly of the opinion that the order passed under Section 127(2) of the Act was required to be recalled for any valid reasons, then, the CIT Section 127(2) of the Act was required to be recalled for any valid reasons, then, the CIT Section 127(2) of the Act was required to be recalled for any valid reasons, then, the CIT-10 Mumbai ought to have issued notice to that effect to the petitioner and after hearing the petitioner ought to have passed that effect to the petitioner and after hearing the petitioner ought to have passed that effect to the petitioner and after hearing the petitioner ought to have passed any order as he deemed fit and serve the same to the petitioner. any order as he deemed fit and serve the same to the petitioner. 16. In the present case, admittedly, the CIT . In the present case, admittedly, the CIT-10 Mumbai has not issued any notice and has not heard the 10 Mumbai has not issued any notice and has not heard the petitioner before passing the Corrigendum order and in fact the said corrigendum order has not been itioner before passing the Corrigendum order and in fact the said corrigendum order has not been itioner before passing the Corrigendum order and in fact the said corrigendum order has not been communicated to the petitioner before issuing the impugned notice dated 30.03.2012 and admittedly the communicated to the petitioner before issuing the impugned notice dated 30.03.2012 and admittedly the communicated to the petitioner before issuing the impugned notice dated 30.03.2012 and admittedly the alleged corrigendum order is served upon the petitioner f alleged corrigendum order is served upon the petitioner for the first time today in Court. or the first time today in Court. 17. In these circumstances, we quash and set aside the impugned notice dated 30.03.2012 issued by the . In these circumstances, we quash and set aside the impugned notice dated 30.03.2012 issued by the . In these circumstances, we quash and set aside the impugned notice dated 30.03.2012 issued by the ACIT-10(1) Mumbai based on the corrigendum order dated 27.03.2012 passed allegedly by the CIT 10(1) Mumbai based on the corrigendum order dated 27.03.2012 passed allegedly by the CIT 10(1) Mumbai based on the corrigendum order dated 27.03.2012 passed allegedly by the CIT-10 Mumbai at the behest of ACIT ACIT-10(1) Mumbai and in gross abuse of the process of law. Apart from the fact 10(1) Mumbai and in gross abuse of the process of law. Apart from the fact that the CIT-10 Mumbai had no jurisdiction to temporarily suspend an order passed under Section 127(2) of 10 Mumbai had no jurisdiction to temporarily suspend an order passed under Section 127(2) of 10 Mumbai had no jurisdiction to temporarily suspend an order passed under Section 127(2) of the Act, in the fact of the present case, the impugned corrigendum or the Act, in the fact of the present case, the impugned corrigendum order passed behind the back of the der passed behind the back of the petitioner without issuing any notice to the petitioner, without hearing the petitioner and admittedly petitioner without issuing any notice to the petitioner, without hearing the petitioner and admittedly petitioner without issuing any notice to the petitioner, without hearing the petitioner and admittedly uncommunicated to the petitioner till date, would have no legal existence and therefore the impugned uncommunicated to the petitioner till date, would have no legal existence and therefore the impugned uncommunicated to the petitioner till date, would have no legal existence and therefore the impugned notice dated 30.03.2012 based on the legally non .2012 based on the legally non-existent corrigendum order dated 27.03.2012 cannot be existent corrigendum order dated 27.03.2012 cannot be sustained.” 32. Before us the ld. CIT, DR supported the AO’s order by placing strong reliance on Before us the ld. CIT, DR supported the AO’s order by placing strong reliance on Before us the ld. CIT, DR supported the AO’s order by placing strong reliance on the decisions of the Hon’ble Delhi High Court in the cases of Abhishek Jai the decisions of the Hon’ble Delhi High Court in the cases of Abhishek Jai the decisions of the Hon’ble Delhi High Court in the cases of Abhishek Jain VsITO (supra) and SS Ahluwalia (supra). As observed earlier, these decisions were rendered in totally and SS Ahluwalia (supra). As observed earlier, these decisions were rendered in totally and SS Ahluwalia (supra). As observed earlier, these decisions were rendered in totally different factual context and therefore the proposition laid down in these decisions different factual context and therefore the proposition laid down in these decisions different factual context and therefore the proposition laid down in these decisions cannot be applied. In the case of Abhishek Jain (supra), the AO at cannot be applied. In the case of Abhishek Jain (supra), the AO at Noida had issued Noida had issued notice u/s 148 on the basis of cash deposits made in ICICI Bank, Noida. In that case the notice u/s 148 on the basis of cash deposits made in ICICI Bank, Noida. In that case the notice u/s 148 on the basis of cash deposits made in ICICI Bank, Noida. In that case the fact that the assessee was regularly assessed in Delhi was not intimated to the AO at fact that the assessee was regularly assessed in Delhi was not intimated to the AO at fact that the assessee was regularly assessed in Delhi was not intimated to the AO at Noida nor did the assessee mention his PAN with the ICICI Bank. Noida nor did the assessee mention his PAN with the ICICI Bank. Even the assessee’s Even the assessee’s address available with the bank was that of Noida. In this case it was not brought on address available with the bank was that of Noida. In this case it was not brought on address available with the bank was that of Noida. In this case it was not brought on record by the assessee that his case was transferred to Delhi by virtue of an order u/s record by the assessee that his case was transferred to Delhi by virtue of an order u/s record by the assessee that his case was transferred to Delhi by virtue of an order u/s 127 passed by the competent authority under whom the AO at No 127 passed by the competent authority under whom the AO at Noida was functioning. ida was functioning. The Court further found that it was only after the period of limitation prescribed in The Court further found that it was only after the period of limitation prescribed in The Court further found that it was only after the period of limitation prescribed in Section 149 expired on 31st March, 2016, that the assessee intimated the AO at Noida Section 149 expired on 31st March, 2016, that the assessee intimated the AO at Noida Section 149 expired on 31st March, 2016, that the assessee intimated the AO at Noida that he had been regularly assessed in Delhi. On these facts, th that he had been regularly assessed in Delhi. On these facts, the Hon'ble Delhi High Court e Hon'ble Delhi High Court held that it was mala fide on the part of the assessee not to intimate the AO at Noida held that it was mala fide on the part of the assessee not to intimate the AO at Noida held that it was mala fide on the part of the assessee not to intimate the AO at Noida prior to 31.03.2016 and that the assessee waited for the period of limitation to expire prior to 31.03.2016 and that the assessee waited for the period of limitation to expire prior to 31.03.2016 and that the assessee waited for the period of limitation to expire before raising this objection. In absence of any order before raising this objection. In absence of any order u/s 127 and having noted that with u/s 127 and having noted that with reference to address made available by the assessee to ICICI Bank in which cash deposits reference to address made available by the assessee to ICICI Bank in which cash deposits reference to address made available by the assessee to ICICI Bank in which cash deposits were found, the Hon'ble High Court held that assessee was debarred from raising the were found, the Hon'ble High Court held that assessee was debarred from raising the were found, the Hon'ble High Court held that assessee was debarred from raising the objection to AO’s jurisdiction in terms of sect objection to AO’s jurisdiction in terms of section 124(3)(b). In the instant case, however, ion 124(3)(b). In the instant case, however, the appellant had mentioned its PAN in the return of income filed for AY 2015 the appellant had mentioned its PAN in the return of income filed for AY 2015 the appellant had mentioned its PAN in the return of income filed for AY 2015-16. By virtue of the order u/s 127 dated 08.10.2008,it was within the knowledge of the AO at virtue of the order u/s 127 dated 08.10.2008,it was within the knowledge of the AO at virtue of the order u/s 127 dated 08.10.2008,it was within the knowledge of the AO at Delhi that the jurisdiction over the ca Delhi that the jurisdiction over the case of the assessee solely vested with AO at Ranchi in se of the assessee solely vested with AO at Ranchi in the month of June 2016. On these facts we therefore find that the ratio laid down in the the month of June 2016. On these facts we therefore find that the ratio laid down in the the month of June 2016. On these facts we therefore find that the ratio laid down in the judgment of the Hon’ble Delhi High Court (supra) is not applicable because the factual judgment of the Hon’ble Delhi High Court (supra) is not applicable because the factual judgment of the Hon’ble Delhi High Court (supra) is not applicable because the factual context in which it was re context in which it was rendered was vastly different. 33. Similarly, in the case of S.S. Ahluwalia (supra), the assessee was assessed at Delhi Similarly, in the case of S.S. Ahluwalia (supra), the assessee was assessed at Delhi Similarly, in the case of S.S. Ahluwalia (supra), the assessee was assessed at Delhi from 1980-81 to 1983- -84. From the assessment year 1984-85 to 1987 85 to 1987-88, filed his returns at Dimapur. The case of the assessee was reopene returns at Dimapur. The case of the assessee was reopened u/s 148 by the ACIT, d u/s 148 by the ACIT, Investigation, Delhi, on the basis of CBI search. When the question of jurisdiction came Investigation, Delhi, on the basis of CBI search. When the question of jurisdiction came Investigation, Delhi, on the basis of CBI search. When the question of jurisdiction came before the Hon'ble High Court, it was held that where the assessee shifts his residence before the Hon'ble High Court, it was held that where the assessee shifts his residence before the Hon'ble High Court, it was held that where the assessee shifts his residence

28 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. etc., the AO of the place where the assessee has shifte etc., the AO of the place where the assessee has shifted or otherwise will have jurisdiction d or otherwise will have jurisdiction and it is not necessary that in such case an order u/s 127 is required to be passed. While and it is not necessary that in such case an order u/s 127 is required to be passed. While and it is not necessary that in such case an order u/s 127 is required to be passed. While going through the decision, we note that there was also an order u/s 127 of the Act and going through the decision, we note that there was also an order u/s 127 of the Act and going through the decision, we note that there was also an order u/s 127 of the Act and the case was transferred to ITO, Ward the case was transferred to ITO, Ward 20, New Delhi. Thus, the case of S.S. Ahluwalia 20, New Delhi. Thus, the case of S.S. Ahluwalia (supra) cannot be of any assistance to the Revenue. (supra) cannot be of any assistance to the Revenue. 34. We note that in support of contentions raised the ld. CIT, DR relied on the We note that in support of contentions raised the ld. CIT, DR relied on the We note that in support of contentions raised the ld. CIT, DR relied on the certain observations in the above decisions (supra). As noted, the facts of certain observations in the above decisions (supra). As noted, the facts of certain observations in the above decisions (supra). As noted, the facts of both the cases were materially different from the facts involved in the appellant’s case. One has to bear were materially different from the facts involved in the appellant’s case. One has to bear were materially different from the facts involved in the appellant’s case. One has to bear in mind that the text of any decision is rendered in the context of the facts which are in mind that the text of any decision is rendered in the context of the facts which are in mind that the text of any decision is rendered in the context of the facts which are before the Court. It is therefore settled legal proposition t before the Court. It is therefore settled legal proposition that the observations of the hat the observations of the Hon’ble Court must be read in the context of the facts and the issues before the Hon’ble Hon’ble Court must be read in the context of the facts and the issues before the Hon’ble Hon’ble Court must be read in the context of the facts and the issues before the Hon’ble Court for consideration. The Hon’ble Supreme Court in the case of CIT Vs Sun Court for consideration. The Hon’ble Supreme Court in the case of CIT Vs Sun Court for consideration. The Hon’ble Supreme Court in the case of CIT Vs Sun Engineering Works (P) Ltd (198 ITR 297) has observed as follow Engineering Works (P) Ltd (198 ITR 297) has observed as follows: “It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the “It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the “It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Court, divorced from the context of the question under consideration and treat it to be the complete Court, divorced from the context of the question under consideration and treat it to be the complete Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by the Court. The judgment must be rea 'law' declared by the Court. The judgment must be read as a whole and the observations from the d as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision judgment have to be considered in the light of the questions which were before the Court. A decision judgment have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while of the Court takes its colour from the questions involved in the case in which it is rendered and while of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a latter case, the Courts must carefully try to ascertain the true principle the decision to a latter case, the Courts must carefully try to ascertain the true principle the decision to a latter case, the Courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the judgment, laid down by the decision of the Court and not to pick out words or sentences from the judgment, laid down by the decision of the Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by divorced from the context of the questions under consideration by the Court, to support their the Court, to support their proceedings.” 35. Coming back to the admitted facts in the present case, we hold that the ACIT, Coming back to the admitted facts in the present case, we hold that the ACIT, Coming back to the admitted facts in the present case, we hold that the ACIT, Central Circle-3(1), Kolkata framed the assessment order dated 29.12.2017 pursuant to 3(1), Kolkata framed the assessment order dated 29.12.2017 pursuant to 3(1), Kolkata framed the assessment order dated 29.12.2017 pursuant to transfer of case orderedby PCIT, Central Patn transfer of case orderedby PCIT, Central Patna dated 03.11.2017 u/s. 127 of the Act, a dated 03.11.2017 u/s. 127 of the Act, without there being valid issuance of notice u/s 143(2) of the Act. In our opinion such an without there being valid issuance of notice u/s 143(2) of the Act. In our opinion such an without there being valid issuance of notice u/s 143(2) of the Act. In our opinion such an order is bad in law as held by the Hon’ble Supreme Court in order is bad in law as held by the Hon’ble Supreme Court in CIT V CIT V Hotel Blue Moon (2010) 321 ITR 362 (S.C) (2010) 321 ITR 362 (S.C) wherein the Hon’ble Supreme Court has held that issue e Supreme Court has held that issue of a legally valid notice u/s. 143(2) is mandatory for usurping jurisdiction to frame of a legally valid notice u/s. 143(2) is mandatory for usurping jurisdiction to frame of a legally valid notice u/s. 143(2) is mandatory for usurping jurisdiction to frame scrutiny assessment u/s. 143(3) of the Act and absence of a valid notice u/s 143(2) is not scrutiny assessment u/s. 143(3) of the Act and absence of a valid notice u/s 143(2) is not scrutiny assessment u/s. 143(3) of the Act and absence of a valid notice u/s 143(2) is not a curable defect. This view was reiterated a curable defect. This view was reiterated by the Hon’ble Apex Court in the case of CIT by the Hon’ble Apex Court in the case of CIT Vs Laxman Das Khandelwal(108 taxmann.com 183). The relevant observations are as Vs Laxman Das Khandelwal(108 taxmann.com 183). The relevant observations are as Vs Laxman Das Khandelwal(108 taxmann.com 183). The relevant observations are as follows: “5. At the outset, it must be stated that out of two questions of law that arose for consideration in At the outset, it must be stated that out of two questions of law that arose for consideration in At the outset, it must be stated that out of two questions of law that arose for consideration in Hotel Blue Moon's case2 the first question was whether notice under Section 143(2) would be Hotel Blue Moon's case2 the first question was whether notice under Section 143(2) would be Hotel Blue Moon's case2 the first question was whether notice under Section 143(2) would be mandatory for the purpose of making the assessment under Section mandatory for the purpose of making the assessment under Section 143(3) of the Act. It was 143(3) of the Act. It was observed:- "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non "3. The Appellate Tribunal held, while affirming the decision of CIT (A) that non-issue of notice under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed under Section 143(2) is only a procedural irregularity and the same is curable. In the appeal filed by the assessee before the Gauhati High Court, the followi by the assessee before the Gauhati High Court, the following two questions of law were raised for ng two questions of law were raised for consideration and decision of the High Court, they were: consideration and decision of the High Court, they were: "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section "(1) Whether on the facts and in circumstances of the case the issuance of notice under Section 143(3) of the Income Tax Act, 1961 within the prescribed time 143(3) of the Income Tax Act, 1961 within the prescribed time-limit for the purpose of making the imit for the purpose of making the assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And assessment under Section 143(3) of the Income Tax Act, 1961 is mandatory? And (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed (2) Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income findings arrived at by the Commissioner of Income Tax (Appeals), the additions made under Tax (Appeals), the additions made under Section 68 of the Income Tax Act, 1961 should be deleted or set aside?" Section 68 of the Income Tax Act, 1961 should be deleted or set aside?" 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub 4. The High Court, disagreeing with the Tribunal, held, that the provisions of Section 142 and sub- sections (2) and (3) of Section 143 will have sections (2) and (3) of Section 143 will have mandatory application in a case where the assessing mandatory application in a case where the assessing

ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. officer in repudiation of return filed in response to a notice issued under Section 158 officer in repudiation of return filed in response to a notice issued under Section 158 officer in repudiation of return filed in response to a notice issued under Section 158-BC(a) proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in proceeds to make an inquiry. Accordingly, the High Court answered the question of law framed in affirmative and in favour of the appellant and against the Revenue. The Revenue thereafter nd in favour of the appellant and against the Revenue. The Revenue thereafter nd in favour of the appellant and against the Revenue. The Revenue thereafter applied to this Court for special leave under Article 136, and the same was granted, and hence this applied to this Court for special leave under Article 136, and the same was granted, and hence this applied to this Court for special leave under Article 136, and the same was granted, and hence this appeal. 13. The only question that arises for our consideration in this batch 13. The only question that arises for our consideration in this batch of appeals is: whether service of appeals is: whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a of notice on the assessee under Section 143(2) within the prescribed period of time is a of notice on the assessee under Section 143(2) within the prescribed period of time is a prerequisite for framing the block assessment under Chapter XIV prerequisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961? B of the Income Tax Act, 1961? 27. The case of the Revenue is that the e The case of the Revenue is that the expression "so far as may be, apply" indicates that it is not xpression "so far as may be, apply" indicates that it is not expected to follow the provisions of Section 142, sub expected to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143 strictly for sections (2) and (3) of Section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counse the purpose of block assessments. We do not agree with the submissions of the learned counse the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression "so the Revenue, since we do not see any reason to restrict the scope and meaning of the expression "so the Revenue, since we do not see any reason to restrict the scope and meaning of the expression "so far as may be, apply". In our view, where the assessing officer in repudiation of the return filed far as may be, apply". In our view, where the assessing officer in repudiation of the return filed far as may be, apply". In our view, where the assessing officer in repudiation of the return filed under Section 158-BC(a) proceeds to make an enquiry BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions , he has necessarily to follow the provisions of Section 142, sub- -sections (2) and (3) of Section 143." 6. The question, however, remains whether Section 292BB which came into effect on and from The question, however, remains whether Section 292BB which came into effect on and from The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to 01.04.2008 has effected any change. Said Section 292BB is to the following effect: the following effect:- "292BB. Notice deemed to be valid in certain circumstances. "292BB. Notice deemed to be valid in certain circumstances.—Where an assessee has appeared in Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provisi deemed that any notice under any provision of this Act, which is required to be served upon him, on of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such has been duly served upon him in time in accordance with the provisions of this Act and such has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was notice was – (a) Not served upon him; or Not served upon him; or

(b) Not served upon him in time; or Not served upon him in time; or

(c) Served upon him in an improper manner: (c) Served upon him in an improper manner:

Provided that nothing contained in this section shall apply where the assessee has raised such Provided that nothing contained in this section shall apply where the assessee has raised such Provided that nothing contained in this section shall apply where the assessee has raised such objection before the objection before the completion of such assessment or reassessment." 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it A closer look at Section 292BB shows that if the assessee has participated in the proceedings it A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the shall be deemed that any notice which is required to be served upon was duly served and the shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon e precluded from taking any objections that the notice was (a) not served upon e precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had particip to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had particip to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which w submitted that the notice under Section 143(2) of the Act was never issued which w submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire pr the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) The law on the point as regards applicability of the requirement of notice under Section 143(2) The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon's case2. The issue that however needs to be of the Act is quite clear from the decision in Blue Moon's case2. The issue that however needs to be of the Act is quite clear from the decision in Blue Moon's case2. The issue that however needs to be considered is the impact of considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by According to Section 292BB of the Act, if the assessee had participated in the proceedings, by According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the said Section. The scope of the provision is to make service of notice having certain infirmities to be provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB noted that the Section does not save complete absence of notice. For Section 292BB noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service notice must have emanated from the department. It is only the infirmities in the manner of service notice must have emanated from the department. It is only the infirmities in the manner of service

30 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. of notice that the Section seeks to cure. The Section is not intended to cure complete absence of of notice that the Section seeks to cure. The Section is not intended to cure complete absence of of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 10. Since the facts on record . Since the facts on record are clear that no notice under Section 143(2) of the Act was ever are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered. by the High Court and the Tribunal and the issued by the Department, the findings rendered. by the High Court and the Tribunal and the issued by the Department, the findings rendered. by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter.” 36. For the reasons set out above therefore, we uphold the objections raised by the For the reasons set out above therefore, we uphold the objections raised by the For the reasons set out above therefore, we uphold the objections raised by the appellant against the validity of the impugned order u/s 143(3) for AY 2015 appellant against the validity of the impugned order u/s 143(3) for AY 2015 appellant against the validity of the impugned order u/s 143(3) for AY 2015-16. We accordingly hold that since in the present case no valid notice u/s 143(2) was is accordingly hold that since in the present case no valid notice u/s 143(2) was is accordingly hold that since in the present case no valid notice u/s 143(2) was issued by the AO who held jurisdiction over the case of the appellant, the consequent order passed the AO who held jurisdiction over the case of the appellant, the consequent order passed the AO who held jurisdiction over the case of the appellant, the consequent order passed u/s 143(3) dated 29.12.2017 was legally unsustainable and therefore is null in the eyes u/s 143(3) dated 29.12.2017 was legally unsustainable and therefore is null in the eyes u/s 143(3) dated 29.12.2017 was legally unsustainable and therefore is null in the eyes of law and therefore quashed. The assessee accordingly succeeds on the of law and therefore quashed. The assessee accordingly succeeds on the of law and therefore quashed. The assessee accordingly succeeds on the preliminary legal issue raised before us. legal issue raised before us.

31 ITA No. 2484/Kol/2019 Assessment Years: 2009-10 Aereo Dealcomm Pvt. Ltd. 16. In the result, appeal of the assessee is allowed. In the result, appeal of the assessee is allowed.

Kolkata, the Kolkata, the 29th day of May, 2020.

Sd/- [J. Sudhakar Reddy] Accountant Member Dated : 29.05.2020 {SC SPS} Copy of the order forwarded to: 1. Aereo Dealcomm Pvt. Ltd C/o. S.N. Ghosh & Associates, Advocates C/o. S.N. Ghosh & Associates, Advocates 2, Garstin Place 2nd Floor Suite No. 203 Off Hare Street Kolkata West Bengal – 700 001