Amit Kumar v. Income-tax Officer, Ward-19(1), New Delhi
[Citation -2016-LL-0929-60]

Citation 2016-LL-0929-60
Appellant Name Amit Kumar
Respondent Name Income-tax Officer, Ward-19(1), New Delhi
Court ITAT-Delhi
Relevant Act Income-tax
Date of Order 29/09/2016
Assessment Year 2003-04
Judgment View Judgment
Keyword Tags unexplained credit • public interest
Bot Summary: Vide Ground No. 1, the grievance of the assessee relates to the jurisdiction exercised by the AO of Ward-19(1), when the assessee was regularly assessed with Ward-20(4). The AO of Ward-19(1) wrongly assumed jurisdiction of the assessee s case. CIT(A) after considering the submissions of the assessee observed that as per the provisions of Section 124(3) of the Act, if the assessee had any objection to the jurisdiction, he was required to raise the same within one month of the 4 ITA No. 877/Del/2016 Amit Kumar receipt of notice. The Hon'ble Supreme Court in the case of Dasa Muni Reddy v Appa Rao AIR 1974 SC 2089 has pointed out that want of Jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. Provisions which confer jurisdiction or such mandatory provisions as are enacted in public interest or on grounds of public policy cannot be waived, because of the underlying principle that jurisdiction could neither be waived nor created by consent. A proceeding is a nullity when the authority taking it up has no jurisdiction either because of want of pecuniary jurisdiction or of territorial jurisdiction or of jurisdiction over the subject matter of the proceeding. The clear scheme of Income-tax Act provides that when an Officer has jurisdiction over the assessee, the same cannot be transferred and assumed by another Officer unless there is an appropriate order passed by the Competent Authority transferring the jurisdiction from one city to other after giving an opportunity of hearing to assessee.


IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1, NEW DELHI Before Sh. N. K. Saini, Accountant Member ITA No. 877/Del/2016 : Asstt. Year : 2003-04 Sh. Amit Kumar, Vs Income Tax Officer, AK-15, Shalimar Bagh, Ward-19(1), Delhi-110088 New Delhi (APPELLANT) (RESPONDENT) PAN No. AAVPK0217C Assessee by : Sh. V. K. Tulsiyan, CA Revenue by : Sh. F. R. Meena, Sr. DR Date of Hearing : 22.09.2016 Date of Pronouncement : 29.09.2016 ORDER This is appeal by assessee against order dated 21.01.2016 of ld. CIT(A)-XII, New Delhi. 2. Following grounds have been raised in this appeal: 1. Whether Ld. CIT(A) was justified in law and facts by suo-moto holding that since appellant has not objected to jurisdiction exercised by ward 19(1), admittedly appellant is regular assessee with ward 20(4), and there are no any accord of higher officer to effect for transfer order. 2. Whether Ld. CIT (A) was justified in law and facts by holding that jurisdiction u/s 147/148 has rightly been exercised by Assessing Officer after recording reasons and proper approval obtained as per section 151(2) and there are no requirement 2 ITA No. 877/Del/2016 Amit Kumar for exercise same on single day and no need to serve reasons on same date. 3. Whether Ld. CIT (A) was justified by holding that section 147/148, was not wrongly invoked, and it is based on complete information and reasons were recorded and approval obtained as per law as well as by holding that exercise of jurisdiction are not for roving and fishing enquiry. 4. Whether Ld. CIT(A) was justified in law and facts by holding that A.O. made addition of Rs. 5,00,000/- as unexplained credit based on reasons but Ld. CIT (A) as well as Ld. A.O. has not disputed evidence paced on records even in his remand report. 5. Whether Ld. CIT (A) was justified in law and facts by ignoring various submissions/ Rebuttal of Remand Report, as well as remand report and particularly in remand report Ld. AO has not disputed submissions on legal issues as well as no dispute on material in support of Rs. 5,00,000/- placed on records. That appellant craves leaves to amend, alter or to raise any other ground at time of hearing. 3. Vide Ground No. 1, grievance of assessee relates to jurisdiction exercised by AO of Ward-19(1), when assessee was regularly assessed with Ward-20(4). 3 ITA No. 877/Del/2016 Amit Kumar 4. Facts of case in brief are that AO issued notice u/s 148 of Income Tax, 1961 (hereinafter referred to as Act) on 31.03.2010 after recording reasons of reopening case. assessee submitted that its original return filed on 28.11.2003 declaring income of Rs.1,49,175/- may be treated as return filed in response to notice u/s 148 of Act. AO completed assessment u/s 147 r.w.s. 143(3) of Act vide order dated 29.12.2010 at income of Rs.6,49,175/- by making addition of Rs.5,00,000/- u/s 68 of Act. 5. Being aggrieved assessee carried matter to ld. CIT(A) and questioned jurisdiction of AO by stating that assessee had been filing his return in Ward-20(4), New Delhi, which was regular in nature and there was no intimation from department for transfer of assessee s case to Ward-19(1) nor was any approval of higher authorities with respect to transfer. Therefore, AO of Ward-19(1) wrongly assumed jurisdiction of assessee s case. 6. ld. CIT(A) after considering submissions of assessee observed that as per provisions of Section 124(3) of Act, if assessee had any objection to jurisdiction, he was required to raise same within one month of 4 ITA No. 877/Del/2016 Amit Kumar receipt of notice. However, assessee had not raised any objection before AO. He was of view that ground of territorial jurisdiction was not maintainable before ld. CIT(A) as appeal to him lie only on grounds enumerated in Section 246 of Act. reliance was placed on decision of Hon ble Allahabad High Court in case of British India Corporation Ltd. reported at 337 ITR 64. 7. Being aggrieved assessee is in appeal. ld. Counsel for assessee reiterated submission made before authorities below and further submitted that this issue is squarely covered vide order dated 16.05.2016 in ITA No.6487/Del/2012 for assessment year 2009-10 in case of ACIT, Circle, Saharanpur Vs M/s Abhay Pigments (P) Ltd., Dehradun (copy of said order was furnished which is placed on record). 8. In his rival submissions ld. DR strongly supported impugned order and reiterated observations made by ld. CIT(A). 9. I have considered submissions of both parties and carefully gone through material available on record. It is noticed that identical issue having similar facts has been 5 ITA No. 877/Del/2016 Amit Kumar adjudicated by ITAT Delhi Bench , in case of ACIT, Circule, Saharanpur Vs M/s Abhay Pigments (P) Ltd., Dehradun (supra) wherein relevant findings have been given in paras 6 to 8 which read as under: 6. Hon'ble Supreme Court in case of Dasa Muni Reddy v Appa Rao AIR 1974 SC 2089 has pointed out that want of Jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction whole proceeding is coram-non judice. absence of condition necessary to find jurisdiction to make order or give decision deprives order or decision of any conclusive effect. distinction between invalidity and nullity is well established in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh AIR 1964 SC 1300. It was pointed out that whether provision fell under one category or other was not easy of discernment as, in ultimate analysis, it depended upon nature, scope and object of particular provision. workable test propounded in case of Holmes v. Russel (1841) 9 Dowl 487 extracted below, was approved:- "It is difficult sometimes to distinguish between irregularity and nullity; but safest rule to determine what is irregularity and what is nullity is to see whether party can waive objections; if he can waive it, it amounts to irregularity, if he cannot, it is nullity." 7. This test involves distinction being drawn between provisions which confer jurisdiction and 6 ITA No. 877/Del/2016 Amit Kumar provisions which merely regulate procedure. Provisions which confer jurisdiction or such mandatory provisions as are enacted in public interest or on grounds of public policy cannot be waived, because of underlying principle that jurisdiction could neither be waived nor created by consent. Hon'ble Allahabad High Court in case of Sant Baba Mohan Singh vs. CIT (1973) 90 ITR 197 (All.) has held that proceeding is nullity where AO has no jurisdiction ab initio to take up proceeding. proceeding is nullity when authority taking it up has no jurisdiction either because of want of pecuniary jurisdiction or of territorial jurisdiction or of jurisdiction over subject matter of proceeding. proceeding is nullity when authority taking it has no power to assess case. Thus jurisdiction assumed by AO has rendered assessment proceedings to nullity and in any case it is not irregularity. 8. clear scheme of Income-tax Act provides that when Officer has jurisdiction over assessee, same cannot be transferred and assumed by another Officer unless there is appropriate order passed by Competent Authority transferring jurisdiction from one city to other after giving opportunity of hearing to assessee. In assessee's case no order u/s 127 of Act has been passed by Competent Authority, Therefore, entire assessment proceedings are rendered to nullity. Hence, in light of facts and circumstances of case we find no reason to interfere with findings of Ld. CIT (A) and we uphold same. 7 ITA No. 877/Del/2016 Amit Kumar 10. In present case also nothing was brought on record to substantiate that any order u/s 127 of Act was passed by competent authority for change of jurisdiction. Therefore, notice issued u/s 148 of Act by AO of Ward-19(1) was without jurisdiction since assessee was regularly filing return of income which were also accepted by department in Ward-20(4), New Delhi. 11. In that view of matter impugned order is set aside and assessment framed on basis of notice issued u/s 148 of Act by AO who was not having jurisdiction over assessee is held to be invalid. 12. In result, appeal of assessee is allowed. (Order Pronounced in Court on 29/09/2016) Sd/- (N. K. Saini) ACCOUNTANT MEMBER Dated: 29/09/2016 Subodh Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR Amit Kumar v. Income-tax Officer, Ward-19(1), New Delhi
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