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Income Tax Appellate Tribunal, DELHI BENCH “SMC” NEW DELHI
Before: SHRI B.P. JAIN
ORDER PER B.P. JAIN, ACCOUNTANT MEMBER:
This appeal of the assessee arises from the order of ld. CIT(A), Rewari vide order dated 1.12.2015 for the A.Y. 2007-08. The assessee has raised the following grounds of appeal:- “1. That the appellant humbly reiterates for your benign and worthy consideration all the facts and grounds of appeal made before the Ld. First Appellate Authority.
2. That the assessment order is not just and fair under the circumstances. That there exists no adequate and valid Page 1 of 13 justification for addition on account of cash deposits in bank account for Rs 1927500/- in the appellant's income. That facts as apparent from documents submitted and submission have not been accorded due weight as warranted under the law. That the Id AO has made addition in a haste manner. That CIT (A) has not given due weight to the assessee his sale deeds, son's affidavit and other relevant documents admitted as submitted.
3. That the assessment order is not just and fair under the circumstances. That there exists no adequate and valid justification for disallowing deduction under Sec 54B and 54F from the appellant's income. That facts as apparent from documents submitted and submission have not been accorded due weight as warranted under the law. That the Id AO has made addition in a haste manner. That CIT (A) has not given due weight to the assessee his wife affidavits, Valuation Report and other relevant documents admitted as submitted.
4. That the CIT (A) have considered the finding of fact given by AO blindly. That CIT (A) have not gone through the appellant documents placed on record before the AO as well as before him. That the AO has not assessed the real income of the appellant.
5. That the CIT (A) has not dealt grounds of appeal raised before her. That the CIT (A) has no considered the claim for Deduction under Sec 54B even after the filing of appellant's wife affidavit as to benami transaction and beneficial Page 2 of 13 ownership.
6. That Id CIT(A) has only ground to reject to appellant's explanation that no cohesive evidences or substantive explanation has been provided by the appellant. That the CIT (A) has find the following flaws in the appellant submission : (a) Original Documents for the sale of agricultural land measuring 11 Kanal 18 was not given. That the Original Document always found in the purchaser's custody . That in Punjab and Haryana a person possessing Original Title Deed is always deemed owner of land or a mortgagor of the property. (b) Sale Deed dt 30/12/2015 and 22/12/2015 have also been comprehensively discussed. That the assessment proceedings relates to Financial Yr : 2006-07 not to Financial Year : 2015- 16. (c) The valuation report of the DVO dt 25.03.2015 had also intimated that the valuation could not be done due various reasons. That no copy of any Valuation Report dt 25th March 2015 has been supplied to the till the date. That the identity of the house can be proved by the Electricity Bill, Water Bill and House Photos. That these were duly provided.
7. That the CIT(A) committed error in law and fact in disallowing the grounds of appeal in respect of the cash deposits. That the AO and Ld CIT (A) has not allowed credit of duly supported cash receipts: a. Sale deeds dt 31.12.2005, 22.6.2006 Page 3 of 13 b. Agreement to Sale with Sh Laxman Singh. c. Sale Deed executed by Sister in favour same purchaser.
8. That appellant contention that cash has been deposited received from the agricultural land sale in favour of Sh Laxman Singh. That the amount received from Sh Laxman Singh was more than sale consideration shown in Sale Deed. That the fact is duly supported by the agreement to sale. That the land was sold at the rate mentioned in the sale agreement. That photocopy the agreement to sale is a admissible evidence in the assessment proceedings.
9. That the AO relied upon the Income Tax Inspector report without confronting the appellant. That on day of Inspector visit there was renovation and routine maintenance of the house. That it is well known fact when a house is well maintained no body can judge how much house old (at least within 10 years of construction).
10. That the appellant cannot be expected to do all the acts as per department sweet will. That the Valuation Report has been sent to the DVO alongwith the Photographs of the House. That the DVO made only lame excuses. That when house photograph alongwith statutory bills has been there remains no question to identity of a House. That the House in question is situated in a Village area. That it is next impossible to satisfy DVO each and every demand as the identity of the House.
11. The appellant is not supposed to prove his creditworthiness as per wishes of AO.That there is no presumption in law that no persons can have cash in hand at his home. That the appellant is not supposed to act at the whims of the Department Officials.
That the CIT (A) has decided appeal on surmises and conjectures. That the surmises and conjectures cannot take place of the factual position. 13. That the CIT (A) has committed a mistake by dismissing ground of appeal
relating to transfer of the proceedings from Rewari to Narnaul. That AO remained sit over proceedings even after objections were filed by the appellant before him. He acted as a judge and decided it in his favour in violation in the provisions of the Income Tax Act.
14. That the assessment proceedings were transferred without an opportunity to the appellant. That transfer Order dt 4th Feb 2013 had been with effect from 31st Jan 2013. No order can confer the jurisdiction upon a authority from earlier than order date. That even otherwise the transfer order is a invalid order.
15. That the AO has not been able to supply the copy of those Notifications mentioned therein Order dt 4th Feb 2013 till the date. It also creates doubts as to the Jt / Addl CIT's power exercised to transfer the assessment proceedings from Rewari to Narnaul.
That it is well known and standard practice of the income tax department (supported by CBDT Circulars) the Officers are not supposed to act as Executive or Judicial Official only but to act as both. That they are supposed to help and inform the taxpayer about their rights and liabilities well in advance. The Officers should not take disadvantages of the assessee's ignorance of law.
That justice should not only be done but appears to have been done manifestly and undoubtedly. The Hon'ble SC says that the taxing authorities should not act in a manner indicate that the scales of justice are weighted against the assessee. The appellant craves for permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal. Under the circumstances it is prayed that the appeal may be allowed and / or any other relief as Hon'ble Tribunal may think fit.”
The ld. counsel for the assessee argued that he has to press only the jurisdictional issue for the notice issue u/s 148 of the Act for transfer of case from one Assessing Officer to another Assessing Officer. The ld. counsel at the outset read the provisions contained in section 120(1) and 120(2) of the Act which are produced here in below:-
“120. (1) Income-tax authorities shall exercise 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 accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. 71[Explanation.—For the removal of doubts, it is hereby declared that any income-tax authority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub-section (1).] (2) The directions of the Board under sub-section (1) may authorise any other income-tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income-tax authorities who are subordinate to it.”
The ld. counsel for the assessee also read the provisions of section 127(1) which are reproduced as under:- “127. (1) The Director General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case89 from one or more Assessing Officers Page 7 of 13
subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. ”
It was argued that the case of the assessee was transferred from ITO Rewari to ITO Narnaul without giving any reasonable opportunities of being heard in the matter to the assessee. The ld. counsel also pointed out at internal page 2 of the assessment order in para 2 which is reproduced herein in below:-
“2. In response to notice u/s 148, no return of income has been filed by the assesses. Later on the jurisdiction of the case was assigned to the undersigned by the Joint Commissioner of Income-tax, Rewari Range, Rewari vide his office order F.No. 1151 dated 04.02.2013. Notice u/s 142(1) calling the return of income alongwith query letter was issued on 07.02.2013 and in response to this assessment proceedings were attended to by Sh. Naresh Aggarwa! Advocate counsel of the assessee and return of income declaring income at Rs. 91377/- was filed and case was adjourned to 04.03.2013. On 04.03.2013, the counsel of the assessee Sh. Naresh Aggarwal Advocate, filed written objection Page 8 of 13 regarding jurisdiction of the case and the matter was discussed with him. Written reply regarding objection on jurisdiction was supplied to him and he was asked to keep the proceedings continue and proceedings were attended to by him. Written replies were filed which have been considered and placed on record……..”
The order of the assessment dated 22.3.2013 section 147/143(3) of the Act at page 66 of the PAPER BOOK, placed on record. Office order in F.No.1151 dated 4.2.2013 issued by the Joint Commissioner of Income Tax, Range and the relevant part is reproduced herein below:- “ Office Order In exercise of the powers conferred by the sub section (1)(2) clause (b) of sub section (4) and sub section (5) of section 120 of Income Tax Act, 1961 read with Notification No. 230/2001 (F.No.18716/2001-IT(A-1) dated 31.7.2001 ) and Notification No. 340/2001 dated 29.10.2001 and all other provisions enabling me in this behalf, I the Joint Commissioner of Income Tax, Rewari Range, Rewari hereby authorizes the Assessing Officer of this Range to concurrently exercise powers and functions of the Assessing Officer in respect of cases mentioned below as per details given in the table………”
The ld. counsel argued that u/s 120 the power vests with the Board i.e. Central Board of Direct Taxes but does not vest with the Joint Page 9 of 13 Commissioner of Income Tax (JCIT) as in the present case. The JCIT has acquired the powers u/s 120 on himself without any order of the CBDT or any order of the Chief Commissioner or Pr. Commissioner of Income Tax u/s 127 of the Act. Accordingly the ld. counsel for the assessee Mr. Abhishek Maratha, Advocate prayed that the jurisdiction acquired by the JCIT on him is extra jurisdictional and therefore the assessment order passed by the Assessing Officer was ab in initio void and deserves to be quashed.
I have heard the rival contentions and perused the facts of the case. Thus I hold that the assessment order dated 22.3.2013 passed by the ITO Ward (2) Narnaul was without jurisdiction, in view of the arguments made by the ld. counsel for the assessee Mr. Abhishek Maratha and I am convinced with the arguments so made by Mr. Abhishek Maratha, Advocate and by reading the various provisions contained in section 120 and 127 of the Act and the office order of the JCIT and on perusal of the facts on record.
The submissions of ld. counsel for the assessee/appellants also gets reiterated by the decision of ITAT “D” Bench in the case of Mega Page 10 of 13 Corporation Ltd. vs. Addl.CIT Range 6, New Delhi reported in (2015) 62 taxman.com 351 (Delhi) (Tribunal), whereby the Delhi Bench of the Tribunal held that once authorities’ lack jurisdiction then it is well settled it cannot participate even on elapse of time. Thus, in the absence of jurisdiction, order made by Addl.CIT is a nullity. Further provisions contained in section 124 is of no help to the Revenue in as much as here is a case where the Addl.CIT lacks jurisdiction and is not a case of exercise of jurisdiction of territorial jurisdiction. The assessment has to be completed by the authority who has initiated the proceedings for making assessment and any another authority and take over the proceedings only after a proper order of transfer u/s 127(1) or 127 (2) of the proceedings. The Revenue has not brought any order for transfer of proceedings from Dy. CIT Circle -6, New Delhi to the Addl. CIT, Range-6, New Delhi and therefore this is quite evident that the Addl. CIT – Range 6 took over the assessment proceedings without there being an order u/s 127(1).
Consequently on this count, the assessment in the present case made by the Addl.CIT is illegal and bad in law and for want of jurisdiction for reasons aforesaid and the order of assessment was without Page 11 of 13 jurisdiction and therefore is quashed as such.
In the result, the appeal of the assessee is allowed.
Pronounced in the open court on 10.03.2017.