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Income Tax Appellate Tribunal, IN THE INCOME TAX APPELLATE TRIBUNAL
Before: SHRI G.D. AGRAWALG.D. AGRAWAL & AND BEFORE SHRI G.D. AGRAWALG.D. AGRAWAL & AND SHRI KULDIP SINGH SHRI KULDIP SINGHSHRI KULDIP SINGH SHRI KULDIP SINGH
PER BENCH PER BENCH :- PER BENCH PER BENCH These appeals by the assessee for the assessment years 1989- 90 to 1991-92 are directed against the order of learned CIT(A)-IX, New Delhi dated 18th December, 2013.
ITA No.938/Del/2014 – Assessee’s appeal for AY 1989 ITA No.938/Del/2014 Assessee’s appeal for AY 1989 Assessee’s appeal for AY 1989-90: Assessee’s appeal for AY 1989 90: 90:- 90: 2. The facts of the case are that for the year under consideration, the original assessment was completed u/s 144 of the Act on 31st March, 1995 at the total income of `3,60,000/-. On appeal by the assessee, learned CIT(A), Faridabad vide his order dated 7th October, 1996 set aside the assessment to the file of the Assessing Officer. In pursuance to the order of the CIT(A), the Assessing Officer made the assessment afresh on 26th March, 1999 at the total income of `4,28,000/-. That the assessee had filed appeal to the ITAT against the order of learned CIT(A) dated 7th October, 1996. In this appeal, the 2 ITA-938 to 946/D/2014 assessee had challenged jurisdiction of the Assessing Officer who passed the assessment order dated 31st March, 1995. The ITAT, vide order dated 23rd September, 2015, allowed the assessee’s appeal and held the assessment order dated 31st March, 1995 to be without jurisdiction, null and void. The relevant finding of the ITAT reads as under:-
“30. It is not in dispute that the authority which can decide the jurisdiction of the Assessing Officer is the CIT/CCIT u/s 124(2) of the Act, when the question arose as to which AO has jurisdiction to assess the person. The power to transfer a case from one jurisdiction to another jurisdiction also lies with CCIT or the CIT. In exercise this power, the ld CIT, Haryana, Rohtak in his dated 22.03.1995 No. Tech/Misc/94-95/15498, which has been extracted at Para 16 of this order, has specifically directed the ACIT, Investigation, Circle Gurgaon to transfer the relevant record to the ITO, Ward 10(1) at New Delhi. The ITO, Ward 10(1), New Delhi was directed to obtain the relevant records from the ACIT, Investigation, Circle Gurgaon and take necessary action on or before 31.03.1995. Hence, it can be seen that the ACIT, Investigation, Gurgaon was divested of his jurisdiction of this case, on 22nd March 1995, by the appropriate authority. The ld ACIT, Investigating Circle, Gurgaon, has after this date, issued notices and completed the assessment. Hence, the issue of notice u/s 142(1) dated 27.03.1995 and consequent passing of the order’s u/s 143(3) on 31.03.1995, was without jurisdiction. When a clear order, transferring the jurisdiction, is passed by a competent authority in law, the question of holding that the ACIT, Investigation, Circle Gurgaon has jurisdiction does not arise. Coming to the argument of the ld DR, we find that neither in the order of the Hon’ble Punjab and Haryana High Court nor the judgment of the Hon'ble Delhi High Court had stated that the assessee shall not raised the issue of the jurisdiction of the Assessing Officer, in the impugned assessments. There is no prohibition imposed on the assessee, not to raise the issue of jurisdiction. In view of the above, all the appeals of the assessee are allowed on the sole grounds that, the ACIT, Investigation Circle, Gurgaon has no jurisdiction over the case of the assessee as on date of passing order u/s 143(3) i.e. on 31.03.1995. An order passed without jurisdiction is null and void in the eyes of law.”
3 ITA-938 to 946/D/2014
That the present appeal before us had originated from the assessment order dated 26th March, 1999. This assessment order was passed by the Assessing Officer in pursuance to the order of the CIT(A) dated 7th October, 1996. In that order, the CIT(A) had upheld the validity of the assessment order. However, it set aside the matter to the file of the Assessing Officer for re-determination of income. However, this order of learned CIT(A) has been modified by the ITAT vide its order dated 23rd September, 2015. The ITAT held that the Assessing Officer who passed the original order had no jurisdiction to pass such order and, accordingly, declared the assessment order dated 31st March, 1995 to be null and void. In view of above facts, the order dated 26th March, 1999 does not survive because it was passed in pursuance to the order of learned CIT(A) dated 7th October, 1996 which has not been approved by the ITAT and has been modified. In view of the above, the assessment order dated 26th March, 1999 is a nullity. Accordingly, we quash the same.
Since we have quashed the assessment order dated 26th March, 4. 1999, the other grounds of appeal by which the assessee has disputed the additions made by the Assessing Officer and sustained by the CIT(A) do not survive for adjudication.
ITA No.939 & 940 & 940/Del/2014 ITA No.939 & 940 ITA No.939 & 940 /Del/2014 /Del/2014 – Assessee’s appeal /Del/2014 Assessee’s appeal Assessee’s appeals for AY 19 Assessee’s appeal for AY 19 for AY 1990 for AY 19 90 90-91 & 1991 90 91 & 1991 91 & 1991- 91 & 1991 92 92:- 92 92 5. At the time of hearing before us, both parties fairly admitted that the facts in these two appeals are identical to the facts in the assessee’s appeal for assessment year 1989-90. In fact, the order of the learned CIT(A) dated 7th October, 1996 is a common order for assessment year 1989-90, 90-91 & 91-92. Similarly, the order of the ITAT dated 23rd September, 2015 is also a common order for these three years. In view of the above detailed finding, the assessment
4 ITA-938 to 946/D/2014 orders dated 26th March, 1999 for assessment year 1990-91 and 1991- 92 are also quashed.
ITA No.941 41 to 946 to 946/Del/2014 /Del/2014 – Assessee’s appeal for AY 1989 Assessee’s appeal for AY 1989-90 90 to 1991 to 1991- ITA No.9 ITA No.9 41 41 to 946 to 946 /Del/2014 /Del/2014 Assessee’s appeal for AY 1989 Assessee’s appeal for AY 1989 90 90 to 1991 to 1991 92 :- 92 : 92 : 92 : 6. All these appeals are against penalties levied by the Assessing Officer in pursuance to the assessment order dated 26th March, 1999. While deciding the assessee’s quantum appeals in ITA No.938 to 940/Del/2014 as above, we have already quashed the assessment order. Once the assessment order itself has been quashed, the penalties levied in pursuance to such assessment order cannot be sustained. Accordingly, the same are also quashed.
In the result, all the appeals of the assessee are allowed. Decision pronounced in the open Court on 21.01.2016.