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Income Tax Appellate Tribunal, DELHI BENCH ‘H’, NEW DELHI
Before: SH. N. K. BILLAIYA & SH. ANUBHAV SHARMA
ORDER
PER N. K. BILLAIYA, AM:
This appeal by the revenue is preferred against the order of the CIT(A), Noida dated 31.12.2018 pertaining to A.Y. 2009-10.
2. The grievance of the revenue read as under :- 1. Because Sh. S.K. Srivastava, the then CIT(A)-Noida had been compulsorily retired by the Government of India with effect from 11.06.2019 and accordingly, he had become functus officio w.e.f. 11.06.2019. Accordingly, any discharge of function by an officer who has become functus officio is a nullity in law and without jurisdiction.
In this regard, reliance is placed on the decision of the Hon'ble High Court of Karnataka in the case of Rudragouda v. The University of Agricultural Sciences and Ors., Writ Petition No. 31734/2016 (S-RES), wherein it was held that: - "The petitioner/officer after his retirement becomes functus officio. No officer can continue to discharge his functions subsequent to his retirement and more particularly, to take action against the subordinate officer or to seek such direction from this Court." [emphasis added)
It is to be noted that the term functus officio has been defined to mean the following: - Black's Law Dictionary [Sixth Edition Page 673) gives its meaning as follows: Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority. Accordingly, it is submitted that once the then CIT[A)-Noida has been compulsorily retired i.e., with effect from 11.06.2019, any order prima facie passed by him or acted upon by him after the date of his compulsory retirement is without jurisdiction.
3. Because a vigilance inspection for the work carried out by Sh. Sanjay Kumar Srivastava IRS (Retd.),who was posted as CIT(A)-1 Noida with the additional charge of CIT(A)-2 Noida, prior to his compulsory retirement w.e.f 11.06.2019 was conducted on 19.06.2019 by the Vigilance Team of Income Tax (Vigilance), which revealed that orders purpoted to have been passed by Sh. Srivastava in the month of December, 2018 were prima-facie passed in the month of June, 2019. In majority of these orders liable to have been uploaded on the ITBA system were uploaded on 11th June to 13th June, 2019 i.e. after his demitting the office, as per the charge sheet filed by CBI.
As per the CBI’s charge sheet there are also indications of falsification of recc towards dispatch of these orders on 7th June, 2019, whereas they were dispatched on 14th June, 2019 It was further revealed that 104 orders were claimed to be passed by Sh. S.K. Srivastava during December, 2018, however, many of them were uploaded to the central server using his RSA token only after his retirement.
4. Because Ld. CIT(A)-1, Noida has committed a jurisdictional error by deciding the appeal beyond fifteen days of the last hearing in contravention of Instruction no. 20/2003 dated 23.12.2003 issued by the CBDT and the order was uploaded on the ITBA after an inordinate delay of time, as it was uploaded after he was compulsorily retired under provisions of Fundamental Rules (FR) 56(J) leading to a jurisdictional defect.
5. Because the order of the CIT(A)-1, Noida, being a nullity in the eyes of law, may be set aside for fresh adjudication to the jurisdictional Ld. CIT(A), Noida. 6. Because any orders, instructions or directions issued under Section 268A(1) by the Board to other income tax authorities for fixing monetary limits would not apply to orders passed without jurisdiction when the officer himself had no jurisdiction to grant relief or pass any order whatsoever.
Because the monetary limits fixed pursuant to Section 268A will only apply to orders passed by authorities with jurisdiction and not to authorities without jurisdiction. Section 268A(1) of the Act reads as follows: - "Section 268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter”
The Appellant craves leave to modify any of the grounds above and/or to add any fresh ground or grounds as and when it is required to do so.
An identical quarrel arose earlier for identical reasons as mentioned in the grounds of appeal. This Tribunal vide order dated 18.01.2021 in 6614/Del/2019, 1228/Del/2020, 1187/Del/2020, 1179/Del/2020, 6945/Del/2019, 6823/Del/2019 and 6387/Del/2019 has extensively discussed the impugned issues and has restored the appeals to the respective jurisdictional CIT(A). The relevant findings of the coordinate Bench read as under :-
“5. Undisputedly Sri S.K. Srivastava Ld. CIT(A)-1 Noida was having jurisdiction over appeals filed under Income Tax Act pertaining to Noida-1 and Noida-2; it is also not in dispute that CIT(A)-1, Noida was having no jurisdiction over the appeals pertaining to Ghaziabad Jurisdiction.
It is also not in dispute that Sri S.K. Srivastava got compulsorily retired with effect from 1 1.06.2019. It is also not in dispute that on the complaint filed by Ms. Anuja Sarangi, Directorate General of Income Tax (DGIT-Vigilance) FIR bearing no. RC 1202019A0004 dated 04.07.2019 was registered by Central Bureau of Investigation (CBI), Anti Corruption Branch (ACB), Ghaziabad against Sh. S.K.Srivastava then CIT(A)- 1 and 2 Noida u/s 120-B, 420, 468 IPC and Section-7 of the Prevention of Corruption Act, 1988 (as amended in 2018) for having indulged in Acts of Omission and Commission adversarial to the interest of revenue. It is also one of the allegation in the FIR that Sri S.K. Srivastava claimed to have passed 104 orders as CIT(A)-1 and CIT(A)-2, Noida during December, 2018 but prima facie passed in the Month of June, 2019. In the backdrop of the aforesaid facts and circumstances of the captioned cases the sole question arises for determination in this cases is :
“as to whether impugned orders passed by Ld. CIT(A)-1 and 2 Noida are illegal, bad in law and non-est having been passed without jurisdiction in violation of CBDT notification and after his compulsory retirement {with effect from 11.06.2019 ?).
7. So far as appeals bearing A.Y.2015-16, CO No. 49/Del/2020, A.Y. 2010-11. 6623/Del/2019.A.Y. 2015-16, ITA No. 6945/Del/20, A.Y. 2009-10. CO No. 152/Del/2019, A.Y. 2009-10 are concerned they are pertaining to Ghaziabad jurisdiction and only CIT(A)- Kanpur is having the jurisdiction to try and entertain the same as per CBDT notification no. 66/2014 dated 13/1 1/2014 read with order no. C.C IT/CCA, Kanpur-III. It is beyond comprehension as to how and under what circumstances CIT(A)-1 Noida has dealt with and disposed of these appeals pertaining to Ghaziabad which are apparently beyond his jurisdiction.
8. From the copy of notification dated 13lh November, 2014 issued by Central Board of Direct Taxes (CBDT) copy of order dated 15.11.2014 passed by the Chief Commissioner of Income Tax, Kanpur specifying the jurisdiction of CIT(A)s, copy of FIR No. RC 1202019A0004 dated 04.07.2019 and report on the basis of vigilance inspection qua the work and conduct of Sh.S.K. Srivastava CIT(A)-1 Noida conducted by D.G.I.T(Vigilance), New Delhi, it is proved on record that Sri S.K.Srivastava CIT(A)- 1, Noida who was compulsorily retired w.e.f 11.06.2019 and vigilance team of Income Tax conducted vigilance inspection qua his work and conduct found following illegalities and irregularities committed by him:- “a. Sh.Sanjay Kumar Srivastava, IRS (Retd.) (87052) while posted as / CIT(A)-, Noida with additional charge of CIT(A)-2, Noida, prior to his compulsory retirement w.e.f 11.6,2019 indulged in acts of omission and commission adversarial to the interest of revenue. b. Orders reported to have been passed by Sh.Srivastava in the month of December, 2018, were prima-facie passed in the month of June, 2019. c. All these orders liable 10 have been uploaded on ITBA system were uploaded between 11th June to i3lh June, 2019. after his demitting the office. d. There are also indications of falsification of records to allude towards dispatch of these orders on 7th June, 2019, whereas they were dispatched on 14th June, 2019. e. Sh.Sanjay Kumar Srivastava passed 13 orders which were outside his jurisdiction. f. It was claimed that 104 orders were passed by Sh.Sanjay Kumar Srivastava during December, 2018, however many of them were uploaded to the central server using his RSA token only after his retirement. g. It is apprehended that either the orders were not passed by Sh.Sanjay Kumar Srivastava during December, 2018, or if the orders were indeed passed during . December, 2018, then the possibility of undue financial gains by delaying the issue of orders cannot be ruled out, h. It is apprehended that role of private players like contractual engages/outsourced staff in the above activities was very evident and requires in depth investigation.”
From the aforesaid illegalities and irregularities brought on 9. record by the Vigilance Inspection Team of Income Tax Department qua the work and conduct of CIT(A)-Noida it has come on record CIT(A)-I, Noida has decided Income Tax Appeals referred to in preceding para no. 7 pertaining to Ghaziabad Jurisdiction over which he has no jurisdiction purportedly on 31.12.2018 whereas it is proved on record that all these appeals were disposed of in the month of June, 2019 after his compulsory retirement. It is also proved on record that all the impugned orders have been uploaded on ITBA system between 11th June to 13th June, 2019 after his demitting the office by Sri S.K.Srivastava, CIT(A)-1 and2 Noida. It is also proved that he has uploaded the impugned orders to the Central Server using his RSA token only after his retirement. All these facts to go to prove that the impugned orders have been passed by Sri S.K.Srivastava CIT(A)-1 and 2 Noida after his compulsory retirement with effect from 11.06.2019, because the moment he ceases to hold his office he has become functus officio.
Hon’ble Supreme Court in case of United Commercial Bank Ltd. vs. workman 1951 SCR 380 in the identical situation held that jurisdictional defect strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of the parties. 10A. Hon’ble Supreme Court of India in case cited as Kanwar Singh Saini vs. High Court of Delhi held that order/ decree passed by court having no jurisdiction is a nullity by returning following findings:
“There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. [Vide United Commercial Bank Ltd. v. Workmen, Nai Bahu v. Lala Ramnarayan, Natraj Studios (P) Ltd. v. Navrang Studios, Sardar Hasan Siddiqui v. STAT, A.R. Antulay v. R.S. Nayak Union of India v. Deoki Nandan Aggarwal, Karnal Improvement Trust v. Parkash Wantft, U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., Slate of Gujarat v. Rajesh Kumar Chimanlal Barot, Kesar Singh v. Sadhu, Kondiba Dagadu Kadam v. Savitribai Supan Gujar and CCE v. Flock (India) (P) Ltd.]
Hon’ble Supreme Court in case of Fatma Bibi Ahmed Patel & Anrs (2008) 6 SCC 789 held that jurisdictional issue goes to the root of the matter and the entire proceedings having been initiated illegally and without jurisdiction, and thus are nullities.
In view of what has been discussed above and following the decisions rendered by Hon'ble Supreme Court in case of Fatima Bibi (supra), United Commercial Bank (supra) and Kanwar Singh Saini (supra) without entering into the merits of the captioned appeals, we are of the considered view that the impugned orders suffer from jurisdictional defect which is not curable having been passed by Ld. CIT(A)-1 and 2 Noida after his compulsory retirements with effect from 11.06.2019, when he was functus officio, are not sustainable in the eyes of law. hence, nullities. So question framed is answered in affirmative.
Consequently, impugned orders passed in the captioned appeals 13. by CIT(A)-1 and 2 Noida are set aside to the files of the respective jurisdictional CIT(A)-1 and 2 Noida and CIT(A) Ghaziabad to decide afresh in accordance with law by providing an opportunity of being heard to the assessee / revenue. Consequently aforesaid appeals / cross objections are allowed for statistical purposes.
On finding parity in the dispute, respectfully following the decision of the coordinate Bench we set aside the captioned appeal to the files of the CIT(A) having jurisdiction over the captioned assessee and decide the issue afresh expediously after affording a reasonable opportunity of being heard to the assessee.
In the result, the captioned appeal is allowed for statistical purpose. 6. Decision announced in the open court in the presence of CIT DR on 19.04.2023.