M/S. EKALAVYA CAREER ACADEMY TRUST,SUNDERGARH vs. ITO, WARD-2, ROURKELA

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER ITA No.176/CTK/2016 (नििाारण वषा / Assessment Year :2010-2011) M/s Ekalavya Career Academy Trust, Unitech House, Udit Nagar, Rourkela-769012 Sundargarh, Odisha PAN No.AAATE 3283 F ………………Assessee Versus ITO, Ward-2, Rourkela ………………..Revenue Shri Sidharth Ray/Binod Agarwal, ARs for the assessee Shri M.K.Gautam, CIT-DR for the Revenue Date of Hearing : 31/05/2022 Date of Pronouncement : 31/05/2022 आदेश / O R D E R Per Bench : This is an appeal filed by the assessee against the order of the ld. CIT(A), Cuttack, in I.T.Appeal No.121/2012-13, dated 29.02.2016 for the assessment year 2010-2011. 2. The assessee has raised a legal ground which reads as under :- “A) For that the transfer of the case for the period 2010-11 by the JCIT to the file of the Income Tax Officer, Ward-2, Rourkela vide Memo No.ITO/W-2/RKL/Scrutiny/A.Y 2010-11 Dt.11th October 2012, is without jurisdiction as the JCIT has no power U/s 127 of the IT Act, who transferred the case, therefore the order of assessment as well as the Order of CIT(A) are void ab initio and the demand raised in the assessment order is liable to be annulled.” 3. As the above ground is legal in nature, which goes to the root of the matter, therefore, the said ground was heard first.

2 ITA No.176/CTK/2016 4. It was submitted by the ld. AR that for the assessment year 2010- 2011, the assessee had filed his return of income declaring Nil income. A notice u/s.143(2) of the Act had been issued by the ACIT, Rourkela Circle, Rourkela fixing the date of compliance on 19.10.2011. Subsequently, the JCIT, Rourkela Range, Rourkela, vide an order dated 01.10.2012 for the purpose of completion of the assessment only had transferred the case of the assessee for the assessment year 2010-2011 to the ITO Ward-2, Rourkela. The copy of the order reads as follows :-

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4 ITA No.176/CTK/2016 6. In reply, the ld. CIT-DR submitted that the assessee has not challenged to the jurisdiction within the time provided in Section 124(3) of the Act being the period of one month from the issuance of the notice much less within one month from the end of the passing of the assessment order. It was the submission that the assessee having not challenged the jurisdiction within the time provided u/s.124(3) of the Act, the assessee is precluded from challenging the jurisdiction any further. It was the submission that the JCIT, Rourkela Range, Rourkela had the powers to transfer the case from any officer under his jurisdiction to any other officer under his jurisdiction as long as it was within the same range. It was also the submission that there was a Circular issued by the CBDT sometime in 2001 but due to efflux of time the said Circular is not available immediately. It was further submitted that all the officers within the same range hold concurrent jurisdiction and was competent to pass an assessment order as held by the Hon’ble Delhi High Court in the case of Abhishek Jain, reported in (2018) 94 taxmann.com 355 (Delhi), wherein in para 16, the Hon’ble High Court has held as under :- 16. Section 120 of the Act which relates to jurisdiction of the Income-tax Authorities stipulates that Income-tax Authorities shall exercise any of the powers and perform all or any of the functions conferred or assigned to such authority by or under this Act as per the directions of the Board i.e., Central Board of Direct Taxes. As per Explanation to sub-section(1), the power can also be exercised, if directed by the Board, by authorities higher in rank. Under sub- section (2), the Board can issue orders in writing for exercise of power and performance of functions by the Income-tax Authorities and while doing so in terms of sub-section (3), the Board can take into consideration and have regard to the four-fold criteria namely, territorial area; persons or classes of persons; incomes or classes of income; and cases or classes of cases. Thus, the Act does not authoritatively confer exclusive jurisdiction to specific Income Tax

5 ITA No.176/CTK/2016 Authority. It is left to the Board to issue directions for exercise of power and functions taking into consideration territorial area, class/types of persons, income and case, and Board have been given wide power and latitude. The said Section by necessary implication postulates and acknowledges that multiple or more than one Assessing officer could exercise jurisdiction over particular assessee. Concurrent jurisdictions are therefore not an anathema but an accepted position under the Act. The term "jurisdiction" in Section 120 of the Act has been used loosely and not in strict sense to confer jurisdiction exclusively to a specified and single assessing officer, to the exclusion of others with concurrent jurisdiction. It would refer to "place of assessment", a term used in the Income Tax Act, 1922. Sub-section (5) to Section 120 of the Act again affirms and accepts that there can be concurrent jurisdiction of two or more assessing officers who would exercise jurisdiction over a particular assessee in terms of the four-fold criteria stated in sub- section (3) to Section 120. Second part of sub-section (5) states that where powers and functions are exercised concurrently by Assessing Officers of different classes, then the higher authority can direct the lower authority in rank amongst them to exercise the powers and functions. 7. Ld. CIT-DR further placed reliance on the decision of the Hon’ble Kolkata High Court in the case of Elite Pharmaceuticals, reported in (2016) 73 taxmann.com 69 (Calcutta), wherein in paras 12, 13 & 16, the Hon’ble High Court has held that in view of the provisions of Section 124(3) of the Act, the challenge to the jurisdiction cannot be made beyond this period prescribed therein being period of one month. Ld. CIT-DR also placed reliance on various Tribunal decisions such as decision of the Chennai Bench of the Tribunal in the case of Karandhai Tamil Sangam 97 taxmann.com 50 (Chennai Tribunal). Further to support his stand, ld. CIT- DR relied on the decision of the Jodhpur Bench of the Tribunal in the case of Vaishali Builders & Colonizers, reported in 25 taxmann.com 464 (Jodhpur Bench). Ld. CIT-DR has also filed written submission, which is extracted herein below :-

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7 ITA No.176/CTK/2016 13. Mr. Dutt submitted that the writ petitioner-appellants did not raise any objection because he had no knowledge of the change of jurisdiction made by the notification issued by the CBDT referred to above. It may be true that the writ petitioners did not have knowledge of the aforesaid notification but limitation on that account shall not remain suspended nor can the period during which the writ petitioner appellant was ignorant about the change of jurisdiction can be excluded because that would be contrary to Section 124(3) of the Act. 15. The assessee had questioned the territorial jurisdiction on the assessing officer and the assessing officer held that the assessee had lost the right to raise the objection by efflux of time. We, as such, find no substance in the case of the appellant. 16. Mr. Mukherjee, learned Advocate appearing for the revenue, drew our attention to a judgement of the Delhi High Court in the case of CIT Vs. Shri Shyam Sunder Infrastructure (P.) Ltd. [IT Appeal No. 236 of 2014] wherein the following views were taken :- "Facially, Section 124(3) stipulates a bar to any contention about lack of jurisdiction of an AO. It is not as if the provisions of the Act disable an assessee from contending that in the given circumstances the AO lacks jurisdiction; rather Section 124(3) limits the availability of those options at the threshold. The assessee upon receipt of notice of the kind mentioned in Clause (a) and (0) of sub- section l' has the option to urge the question of jurisdiction; the expressed tenor and terms of the provisions clarify that such objections are to be articulated at the threshold or at the earlier points of time. The two points of time. specified in section 124(3)(a) are as under: (i) Within one month from the date of service of notice or; (ii) After completion of assessment - whichever is earlier." 17. We are in agreement with the view expressed by the Delhi High Court. In that view of the matter, the appeal fails and is dismissed". 3. Similar view was taken by the Hon’ble Chennai Bench in the case of Karandhai Tamil Sangam vs. JCI (97 taxmann.com 50) by holding as under in para-5 of the order: 5. We have considered the rival submissions. The facts in the present case clearly shows that the notice u/s.148 of the Act issued by the JCIT, Thanjavur Range, Thanjavur on 12.08.2010 was served on the assessee on 12.08.2010. This is evident from page- 13 of the assessment order. Notice u/s.142(l) was served on the assessee on 08.03.2011. Admittedly, assessee has not challenged the jurisdiction by intimating the Id. Assessing Officer as required u/s.124(3)(b) of the Act within the time provided therein. It must be mentioned herein that "the challenge to the jurisdiction has been

8 ITA No.176/CTK/2016 provided in Section 124(3) of the Act wherein the time for challenging has also specified, so that the Revenue would also have an opportunity to rectify any defects, if found validly raised. This has not been done. Once the time limit for challenging jurisdiction has expired, the same cannot be challenged. Admittedly, the provisions of the section 292BB introduced by the Finance Act, 2008 would not apply insofar as the assessee is not challenging the notices or the service of the notices, but the assessee has challenged the very jurisdiction and the challenge to the jurisdiction has to be within the time provided u/s.124(3) of the Act. Further, as has been pointed out by the Id. D.R, though the assessee has filed Writ Petition before the Jurisdictional High Court, the Hon'ble High Court of Madras has dismissed the Writ Petition vide order dated 24.08.2011. Here in respect of Writ Petition filed by the assessee and the order passed by the Hon'ble Jurisdictional High Court there on it should be clearly understood that e challenge in the Writ Petition was in respect of the order passed u/s.127(3) regarding the transfer of jurisdiction. What is before the Tribunal Is not the transfer of jurisdiction, but is a challenge to the jurisdiction u/s, 120(4)(b) of the Act. This challenge to the jurisdiction is completely different from the challenge to the transfer of jurisdiction, which has been made in the Writ Petition and which has been dismissed by the Hon'ble jurisdictional High Court. Admittedly, no evidence of filing of writ appeal or pendency of the Writ Appeal or any orders passed by the Hon'ble jurisdictional High Court in respect of the Writ Appeal has been produced before us. The challenge to the jurisdiction u/s.120(4)(b) of the Act has not been made within the prescribed time u/s.124(3) of the Act to the authority, whose jurisdiction is being challenged. Consequently, the issue of the challenge of the jurisdiction no more survives. Consequently, the jurisdiction of the JCIT, Thanjavur Range, Thanjavur stands confirmed" . 4. The above view is also supported by the judgements of Hon'ble Chandigarh ITAT in the case of ACIT vs. Punjab Urban Development Authority (42 taxmann.com 160), Hon'ble Iodhpur ITAT in the case of Vaishali Builders & Colonizers vs. Addl. CIT (25 taxmann.com 464). 5. With due respect, the judgement of Hon'ble Odisha High Court in the case of Kalinga Ispat Udyog vs. Sales Tax office dated 20.09.1995 is not applicable in the present case because there is a specific provision in the Income Tax Act (section 124(3) which shall govern the present case. 6. Jurisdiction is an administrative issue and not a subject matter for the appeal. The Hon'ble Delhi High Court in the case of Abhishek Iain (405 ITR 1) has held in para-If that Section 120 by necessary Implication

9 ITA No.176/CTK/2016 postulates and acknowledges that multiple or more than one Assessing officer could exercise jurisdiction over particular assessee. Concurrent jurisdictions are therefore not an anathema but an accepted position under the Act. The term "jurisdiction" in Section 120 of the Act has been used loosely and not in strict sense to confer jurisdiction exclusively to a specified and single assessing officer, to the exclusion of others with concurrent jurisdiction. It would refer to "place of assessment", a term used in the Income Tax Act, 1922. Sub-section (5) to Section 120 of the Act again affirms and accepts that there can be concurrent jurisdiction of two or more assessing officers who would exercise jurisdiction over a particular assessee in terms of the four-fold criteria stated in sub- section (3) to Section 120. Second part of sub-section (5) states that where powers and functions are exercised concurrently by Assessing Officers of different classes, then the higher authority can direct the lower authority in rank amongst them to exercise the powers and functions. 7. In the case of S. S. Ahluwalia (225 Taxman 131), it was held by the Hon'ble Delhi High court that Subsection (3) of section 124 stipulates that the objection to the jurisdiction could be questioned by an assessee or a person within one month from the date on which return of income under Section 139(1) was made or within one month from the date of issuance of notice under Section 142(1) or 143(2) or after completion of assessment, whichever was earlier. Sub-section (4) lays down that when an assessee raises a dispute regarding jurisdiction of the Assessing Officer and the Assessing Officer if not satisfied with the correctness of the claim, he shall refer the matter for determination as per sub- section (2) of Section 124, however, this should be done before the assessment was made. The aforesaid Section, therefore, postulates waiver of objection to assumption of jurisdiction by the Assessing Officer. Time limit for raising the objection stands stipulated. Principle of deemed waiver applies. This could only happen when the authority does not lack or suffer from inherent lack of subject matter jurisdiction. When there is inherent lack of subject matter jurisdiction, principle of waiver does not apply. The principle being simple that by consent one cannot confer jurisdiction on authority which lacks inherent subject matter jurisdiction. The provisions ensure that conflict between Assessing Officers having concurrent jurisdictions is avoid and curtailed and the assessment proceeding do not get misdirected on side issues. Such deviation should be avoided. It is also clear that question of jurisdiction cannot be made subject matter of appeal, as the issue has to be decided on the administrative side by the Commissioner/Commissioners/ Board. Appeal can, however, be filed questioning the action of the Assessing Officer in not following the procedure mentioned/stipulated in Section 124. It was further held in the said judgement that the provision of section 127 of the act does not speak of transfer of jurisdiction but

10 ITA No.176/CTK/2016 transfer of case. Expression "concurrent jurisdiction" is mentioned in sub-section (3) to Section 127 of the Act. The provisions indicate that Sections 120, 124 and 127 of the Act recognizes flexibility and choice, both with the assessee and the authorities i.e. the Assessing Office before whom return of income could be filed and assessment could be made. The Assessing Officer within whose area an assessee was carrying on business, resided or otherwise income had accrued or arisen ( in the last case, subject to the limitation noticed above) has jurisdiction. Similarly, the Assessing Officer also has authority due to class of income or nature and type of business. The Act, therefore, recognized multiple or concurrent jurisdictions. Provisions of Section 124 ensure and prevent two assessments by different assessing officers, having or enforcing concurrent jurisdiction. There cannot be and the Act does not envisage two assessments for the same year by different officers. (Reassessment order can be by a different officer)." 8. Being an enactment aimed at collecting revenue, the Legislature did not intend collection of revenue to be bogged down on account of technical plea of jurisdiction. It has, therefore, prescribed the limit up to which the plea of jurisdiction may be raised. As provided in Section 124(3)(a), the right is lost as soon as the assessment has been completed. Even where the right is exercised before the assessment is completed, the question is to be decided by the Commissioner or by the Board. Courts do not come into the picture. In Wallace Brothers & Co. Ltd. vs. CIT [1945] 13 ITR 39, the Federal Court had held that the objection to place of assessment could not be raised in an appeal against the assessment under the Income Tax Act, 1922. This view was affirmed by the Hon'ble Supreme Court in the case of Rai Bahadur Seth Teomal vs. CIT (36 ITR 9)(SC) holding that the objection as to the place of objection under the 1922 Act could not be made a subject or issue before the appellate forums including the Tribunal and reference to the High Court. The position is no different under the Act i.e. Income Tax Act 1961, as was elucidated by a Division Bench of the Hon'ble Delhi High Court in the case of Kanji Mal & Sons vs. CI.T. (1982) 138 ITR 391 (Del), wherein reference to said two decisions was made and it was observed that if the assessee fails to raise objection before the Income Tax Officer within the time, he will be shut out from raising the question altogether. Section 124(5) of the Act saves assessment made by an assessing officer provided that the assessment does not bring to tax anything other than "the income accruing, arising or received in that area over which the assessing officer exercises jurisdiction". Section 124(5) of the Act which saves the action of AO in certain cases, said section does not postulate multiple assessments by different assessing officers, or assessment of part or portion of an income thus, it is necessary that the Assessing Officers having concurrent jurisdiction ensure that only one of them proceeds and adjudicates. This is the purport and objective behind sub-section (2) to Section 124 of the Act.

11 ITA No.176/CTK/2016 9. In the present case, the ACIT, Rourkela Circle, Rourkela had territorial jurisdiction over the assessee. In the circumstances therefore said ACIT, Rourkela Circle, Rourkela had validly issued notice u/s, 143(2) of the Act. Since the notice issued u/s 143(2) was claimed legally valid, thereafter the ITO, Ward- 2, Rourkela could validly proceed to complete the assessment by only issuing a notice u/s 142(1) of the Act. The proceedings which the ACIT, Rourkela Circle, Rourkela undertook were legally valid according to which the successor AO could proceed with the assessment from the stage at which predecessor AO had left the proceedings. The legal plea raised by the assessee regarding challenge of jurisdiction does not have legs to stand and therefore deserves to be rejected. 8. In reply, the ld. AR drew our attention to the decision of the Hon’ble Supreme Court in the case of Saurav Jain and Ors., reported in AIR 2021 SC 3673, wherein the Hon’ble Supreme Court in paras 31 to 34 has held as under :- 31 In Chandrika Misir v. Bhaiya Lal MANU/SC/0328/1973 : (1973) 2 SCC 474, this Court was hearing a special leave petition concerning the possession of parties over the suit property which was the subject of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951). While adjudicating on whether the suit was barred by limitation, Justice DG Palekar, speaking for a two Judge bench, observed that the civil court did not have jurisdiction to entertain the suit at all. Although the plea of bar on jurisdiction had not been raised in the courts below, the Court held that: “6. It is from this order that the present appeal has been filed by special leave. It is to be noticed that the suit had been filed in a civil court for possession and the Limitation Act will be the Act which will govern such a suit. It is not the case that U.P. Act 1 of 1951 authorises the filing of the suit in a civil court and prescribes a period of limitation for granting the relief of possession superseding the one prescribed by the Limitation Act. It was, therefore, perfectly arguable that if the suit is one properly entertainable by the civil court the period of limitation must be governed by the provisions of the Limitation Act and no other. In that case there would have been no alternative but to pass a decree for possession in favour of the plaintiffs. But the unfortunate part of the whole case is that the civil court had no jurisdiction at all to entertain the suit. It is true that such a contention with regard to the jurisdiction had not been raised by the defendant in the trial court but where the court is inherently lacking in jurisdiction the plea may be raised at any stage, and, it is conceded by Mr Yogeshwar Prasad, even in execution proceedings on the ground that the decree was a nullity. If one reads Sections 209 and 331 of the U.P. Act 1 of 1951 together one finds that a suit

12 ITA No.176/CTK/2016 like the one before us has to be filed before a Special Court created under the Act within a period of limitation specially prescribed under the rules made under the Act and the jurisdiction of the ordinary civil court is absolutely barred.” (emphasis supplied) 32 In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma MANU/SC/0407/1995: 1995 Supp (4) SCC 286 as well, , a three Judge bench of this Court entertained an objection as to maintainability of the suit under Section 9 of the CPC, despite the plea not having been raised before the courts below. The Court observed that the plea of a bar or lack of jurisdiction can be entertained at any stage, since an order or decree passed without jurisdiction is non-est in law. 33 The position of law has been consistently applied even in criminal proceedings under Article 136 of the Constitution. In Masalti v. State of Uttar Pradesh 18, the confirmation of the death sentence of a number of accused persons by the High Court was under challenge before this Court. Chief Justice Gajendragadkar, speaking for a four judge Bench of this Court, observed that: “11. We are not prepared to accept Mr Sawhney's argument that even if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged. It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before the trial court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Article 136.” (emphasis supplied) 34 Based on the position of law, we find it just to allow the appellant to raise the ground of jurisdiction before us. Allowing the ground to be raised would not require the submission of additional evidence since it is a pure question of law and strikes at the heart of the matter. We shall now turn to the merits of this argument.

13 ITA No.176/CTK/2016 9. It was also submitted that the Hon’ble Supreme Court has held that an appellant is entitled to raise the question of jurisdiction being an issue of law when no new additional evidence is required to be considered and when the issue strikes the heart of the matter. He also placed reliance upon the decision of the Hon’ble Jurisdictional High Court in the case of Shri Bijoy Kishore Mohanty, passed in ITA Nos.29 and 30 of 2021, wherein following the decision of the Hon’ble Supreme Court in the case of Saurav Jain (supra), it has been held that once the Court while admitting the appeal has framed a question and that order has not been challenged by the department, the department cannot raise an objection at the hearing stage to the framing of such question by the Court. It was, thus, the submission that the revenue having not shown that the JCIT, Rourkela Range, Rourkela had power to transfer the case from ACIT Rourkela Circle, Rourkela to the ITO Ward-2, Rourkela, therefore, the assessment order passed by the ITO Ward-2, Rourkela is liable to be quashed. It was also submitted by the ld. AR that the assessee was not challenging the jurisdiction of the AO to pass the assessment order but was challenging the jurisdiction of the JCIT in respect of transfer of the case from ACIT Rourkela Circle, Rourkela to the ITO Ward-2, Rourkela. Therefore, the assessment order and the order of CIT(A) are liable to be quashed. 10. We have heard rival submissions. 11. A specific query was placed to the ld. CIT-DR as to whether he is in a position to place the order giving powers to the JCIT, Rourkela Range,

14 ITA No.176/CTK/2016 Rourkela to transfer the case from one officer under his range to any other officer under his range. To this, though he mentioned that there is a CBDT Circular of 2001 but he was not in a position to place the Circular immediately and he needed more time. This request for time has been denied by this Bench as this legal ground has been raised as early as 1st March, 2021 and subsequently number of postings has also been done. 12. Coming to the decision quoted by the ld. AR of the assessee, more specifically, the decision of the Hon’ble Supreme Court in the case of Saurav Jain (supra), it is a decision in respect of civil matters, it does not relate to an income tax proceedings. However, all decisions of the Hon’ble Supreme Court lay down binding precedence in respect of the law. It is an accepted and well-recognised principle of law that an assessee or an appellant or a litigant is entitled to raise a question of law challenging fundamental jurisdiction at any stage for the first time including before the Hon’ble Apex Court subject to the condition that no fresh evidence needs to be examined and such question of law goes to the root of the matter. Coming to the decision relied upon by the ld. AR of the assessee in the case of Shri Bijoy Kishore Mohanty (supra), it is noticed that this issue is in regard to the jurisdiction in respect of issuance of notice u/s.143(2) of the Act. Further the Hon’ble Jurisdictional High Court has categorically given a finding that the question of law having been framed by the Hon’ble High Court and such question having not been challenged by the revenue, therefore, no chance remains for the revenue to challenge such

15 ITA No.176/CTK/2016 question in the hearing of the appeal on merits. Consequently, this decision does not have any bearing on the facts of the present case. 13. Coming to the decision relied upon by the ld. CITDR in the case of Abhishek Jain (supra) & Ors., it is noticed that these are the decision in respect of the jurisdiction of the AO to do an assessment without jurisdiction vis-à-vis the provision of Section (3) of the Act. The argument of the ld. CITDR that all officers within the range have the authority to do an assessment would not hold good insofar as if what is said is true then what was the necessity of the JCIT, Rourkela Range, Rourkela to pass an order transferring the case for the purpose of completion of the assessment from the ACIT, Rourkela Circle, Rourkela to the ITO Ward-2, Rourkela. If all the officers in the range had the jurisdiction then nothing stopped any officer within the range from picking up any assessment of any assessee falling within that range for the purpose of competing an assessment. This is not what is provided under the Act. These facts being evident, it becomes clear that JCIT, Rourkela Range, Rourkela did not have the powers to transfer the case of the assessee for the assessment year 2010-2011 from ACIT, Rourkela Circle, Rourkela to the ITO Ward-2, Rourkela for the purpose of completion of the assessment. 14. Admittedly, under normal circumstances, a consequential assessment order passed by the ITO Ward-2, Rourkela would be liable to be quashed. However, a perusal of the assessment order shows that a notice u/s.143(2) of the Act had originally been issued by the ACIT, Rourkela Circle, Rourkela, who had the jurisdiction to do the assessment

16 ITA No.176/CTK/2016 of the assessee. The procedural defect occurred when the JCIT, Rourkela Range, Rourkela transferred the file of the assessee from the ACIT, Rourkela Circle, Rourkela to the ITO Ward-2, Rourkela. This procedural defect is incurable and at the point of defect the proceedings would have to be cut. However, as valid proceeding had been initiated by the ACT, Rourkela Range, Rourkela, the assessment order is being set aside and the assessment is restored to the file of ACIT, Rourkela Circle, Rourkela for completion of the assessment insofar as the proceedings had been validly initiated but the proceedings had been disposed off by an officer having no jurisdiction. This does not mean that proceedings came to an end. The proceedings can validly be completed and finalized by an officer who has valid jurisdiction and who had initiated the proceedings. This view of ours find support from the decision of the Hon’ble Jurisdictional High Court in the case of Shivkumar Agrawal [1990] 186 ITR 734 (Orissa). 15. Under such circumstances, the assessment order passed by the ITO, Ward-2, Rourkela in the case of the assessee for the A.Y.2010-2011 is set aside. Consequently, the order of the ld. CIT(A), who was adjudicated the appeal against the said assessment order passed by the ITO Ward-2, Rourkela, is also set aside. As the proceedings have been validly initiated by the ACIT, Rourkela Circle, Rourkela in the case of the assessee for the assessment year 2010-2011, the issues in the present appeal are restored to the file of ACIT, Rourkela Circle, Rourkela for de novo assessment in accordance with law.

17 ITA No.176/CTK/2016 16. In the result, appeal of the assessee is partly allowed for statistical purposes. Order dictated and pronounced in the open court on 31/05/2022. Sd/- Sd/- (अरुण खोड़पऩया) (जाजज माथन) (ARUN KHODPIA) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 31/05/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant- M/s Ekalavya Career Academy Trust, Unitech House, Udit Nagar, Rourkela-769012 Sundargarh, Odisha 2. प्रत्यथी / The Respondent- ITO, Ward-2, Rourkela आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. आयकर आयुक्त / CIT 4. पिभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, 5. ITAT, Cuttack गार्ज पाईऱ / Guard file. 6. सत्यापऩत प्रयत //True Copy// आदेशािुसार/ BY ORDER,

(Assistant Registrar) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack