THE DY. CIT CENTRAL CIRLE-6(4), MUMBAI vs. INDIABULLS REAL ESTATE LTD, NEW DELHI

In this case, Ld. Commissioner, New Delhi, vide impugned order allowed the appeal of the Assessee in part, by determining as under: (i) Restricted the disallowance under section 14A read with rule 8D of the I.T. Rules, 1962 to the extent of Rs.1,18,44,320/- as against the sum of Rs.5,16,73,689/- as worked out by the Assessing Officer. (ii) Deleted the addition of Rs.43,01,604/- made by the Assessing Officer on account of excess claim of depreciation on software expenses. (iii) Further, allowed the additional claim of the Assessee on account of Employee Stock Option Scheme Compensation (in short „ESOP expenses‟) to the tune of Rs.96,248/-.

The revenue department being aggrieved preferred the instant appeal.

At the time of hearing, we observe that the Assessing Officer i.e. Deputy Commissioner of Income-tax, Circle 12(1), New Delhi, who passed the assessment order 18/03/2016 under section 143(3) of the Act in fact was situated in the jurisdiction of Delhi but not Mumbai. Even the Ld. Commissioner who passed the impugned order was also in the jurisdiction at Delhi or situated at Delhi. And therefore we raised the query to the parties as to how the instant appeal filed at Mumbai Benches is entertainable. The Ld. DR. could not produce any document and/or reason for filling of instant appeal at Mumbai Benches. However the Assessee by filing a petition dated 17/01/2024 under rule 27 of the Income Tax Appellate Tribunal Rules, 1963 (in short „Rules‟) which 3 ITA 4847/Mum/2019 Indiabulls Real Estate Ltd provides that “the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him”, submitted that the Assessee being aggrieved with the 18th impugned order dated March, 2016 which is under consideration, has also filed appeal having and the same is pending before “C” Bench at New Delhi. Since the Assessing Officer was situated at New Delhi at the time of passing of the assessment order and the jurisdiction of the appeal, therefore, lies in New Delhi as per dictum laid down by the Hon‟ble Apex Court in the case of PCIT vs ABC Papers Ltd (2022) 447 ITR 1 (SC) and, therefore, the Revenue is not justified in filing the present appeal before this Hon‟ble Tribunal.

We have given thoughtful consideration to the facts and circumstances of the case and observe that admittedly, the Assessing Officer who passed the assessment order and even otherwise, the Ld. Commissioner, who passed the impugned order was situated at New Delhi and as per the dictum laid down by the Hon‟ble Apex Court in ABC Paper Ltd case (supra), the jurisdiction for filing an appeal emanates from the assessment order passed by the Assessing Officer situated at New Delhi, lies at the jurisdiction of the Tribunal at New Delhi but not at Mumbai. Hence, we are inclined to dismiss the appeal filed by the Revenue department in limine for want of jurisdiction, however, subject to grant of liberty to the Revenue department to file its appeal, if they desire so, at New Delhi within 60 days from the receipt of this order. Thus the instant appeal is dismissed accordingly.

In the result, appeal filed by the Revenue stands dismissed in the aforesaid terms and the Petition filed by the Assessee under rule 27 of the I.T.A.T Rules is allowed.