Sh. Mahabir Singh, Sirsa V. ITO, Sirsa

ITA 1131/CHANDI/2014

• Counselvise Citation: 113121514 RSA 2014
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEENAKSHI VOHRA
• Assessee Lawyers: VINEET KRISHAN
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 1131/CHD/2014 ASSESSMENT YEAR: 2008-09 SHRI MAHABIR SINGH, VS THE ITO, # 1311, VILLAGE BANI, WARD 2, TEHSIL RANIA, SIRSA. DISTT. SIRSA. PAN: CDVPM5319N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEET KRISHAN RESPONDENT BY : MS. MEENAKSHI VOHRA DATE OF HEARING : 19.10.2015 DATE OF PRONOUNCEMENT : 21.10.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) ROHTAK DATED 08.10.2014 FOR ASSESSMENT YEAR 2008-09. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT AFTER RECORDING THE REASONS FOR RE-OPENING OF THE ASSESSM ENT. THE STATUTORY NOTICES WERE ALSO ISSUED BUT NONE WER E ATTENDED BY THE ASSESSEE. NO RETURN OF INCOME WAS FILED. THE ASSESSING OFFICER, THEREFORE, PASSED EX-PARTE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE ACT. IT MAY BE NOTED HERE THAT AS PER ASSESSMENT ORDER, THO UGH THE ASSESSEE ATTENDED THE PROCEEDINGS BEFORE ASSESS ING 2 OFFICER, BUT NO REPLY OR MATERIAL WAS PRODUCED BEFO RE ASSESSING OFFICER FOR COMPLETION OF THE ASSESSMENT. THE ASSESSING OFFICER, THEREFORE, COMPLETED THE ASSESSM ENT EX-PARTE AND DETERMINED THE INCOME OF THE ASSESSEE VIDE ORDER DATED 22.03.2013 UNDER SECTION 144/147 OF THE ACT. THE ASSESSEE IN ONE OF THE GROUNDS BEFORE LD. CIT(APPEALS) SUBMITTED THAT NOTICE ISSUED BY ASSESS ING OFFICER UNDER SECTION 147/148 OF THE ACT WAS VOID ABINITIO AS THE SAME WAS ISSUED WITHOUT JURISDICTION. THEREFORE, PROCEEDINGS IN REFERENCE TO THAT NOTICE IS ALSO BAD IN LAW AND VOID. 3. THE LD. CIT(APPEALS) REFERRED TO PROVISIONS OF SECTION 120 OF INCOME TAX ACT AND IN CONSIDERING TH E ISSUE, NOTED THAT ASSESSEE HAS FILED COPY OF THE OR DER OF JURISDICTION UNDER SUB SECTION (1) OF SECTION 120 O F INCOME TAX ACT IN RESPECT OF ASSESSING OFFICERS OF RANGE SIRSA, SIRSA, WHEREIN IT IS CLEARLY STATED ON PAGE NO.1 I ADDITIONAL COMMISSIONER OF INCOME TAX, SIRSA, RANGE SIRSA, HEREBY ORDER THAT THE ADDITIONAL COMMISSIONE R OF INCOME TAX, SIRSA RANGE, SIRSA, DCIT/ACIT, SIRSA RA NGE, ITO WARD-1 & 2 AND ITO WARD 1 & 2, FATEHABAD OF SIR SA RANGE, SIRSA SHALL PERFORM CONCURRENT JURISDICTION OVER ALL PERSONS, CLASSES OF PERSONS RESIDING IN REVENUE DIS TRICT OF SIRSA AND FATEHABAD. THE LD. CIT(APPEALS), THEREFORE, HELD THAT ASSESSING OFFICER HAS RIGHTLY ISSUED NOTI CE UNDER SECTION 147/148 OF INCOME TAX ACT AS HE HAS T HE 3 CONCURRENT JURISDICTION OVER THE ASSESSEE, THEREFOR E, THIS GROUND WAS DISMISSED. 4. THE ASSESSEE IN THE PRESENT APPEAL HAS RAISED TH E SOLE GROUND OF APPEAL CHALLENGING THE NOTICE ISSUED UNDER SECTION 147/148 BY ASSESSING OFFICER WITHOUT JURISDICTION. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSING OFFICER WAS, THOUGH HAVING CONCURRENT JURISDICTION BUT HE COULD NOT PASS THE ASSESSMENT O RDER BECAUSE HE WAS HAVING NO MONETARY JURISDICTION TO I SSUE NOTICE UNDER SECTION 147/148 OF THE ACT THEREFORE, ENTIRE RE-ASSESSMENT ORDER IS BAD IN LAW. 5(I) ON THE OTHER HAND, LD. DR RELIED UPON ORDERS O F THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN ASSESSING OFFICER HAS CONCURRENT JURISDICTION WITH HIM ALONGW ITH OTHER OFFICERS, AS PER NOTIFICATION REFERRED TO BY LD. CIT(APPEALS), THEREFORE, ASSESSMENT ORDER IS PASSED BY THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN TH IS CASE, THE ITO WARD-2 SIRSA RECORDED THE REASONS FOR RE- OPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT. IT IS ADMITTED FACT THAT THE ASSESSEE, THOUGH ATTENDED TH E PROCEEDINGS BEFORE ASSESSING OFFICER BUT NO RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148 OF T HE ACT 4 WAS FILED AS WELL AS DID NOT FILE ANY REPLY BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFOR E, PASSED EX-PARTE ORDER UNDER SECTION 144/147 OF THE ACT ON DATED 22.03.2013. THE ASSESSMENT ORDER IS PASSE D BY ITO WARD-2 SIRSA. ACCORDING TO THE FINDINGS OF THE LD. CIT(APPEALS), AND COPY OF JURISDICTION ORDER PRODUC ED BY ASSESSEE, IT WAS CLEAR THAT AS PER ORDER OF THE ADD L. CIT, SIRSA, DCIT, ACIT AND ITO WARD 1 & 2 OF SIRSA RANGE , SHALL HAVE CONCURRENT JURISDICTION MEANING THEREBY THE ASSESSING OFFICER I.E. ITO WARD-2 SIRSA WAS HAVING JURISDICTION OVER THE ASSESSEE TO ISSUE THE NOTICE UNDER SECTION 148 OF THE ACT. THE COUNSEL FOR ASSESSEE O NLY CONTENDED THAT THE ASSESSING OFFICER OF THE ASSESSE E WAS HAVING NO JURISDICTION AS VALUE WAS MORE OF THE JURISDICTION. THE CONTENTION RAISED BY THE LD. COU NSEL FOR THE ASSESSEE HAS NO FORCE IN LAW. FURTHER, THE ASSE SSEE HAS NOT RAISED THE ISSUE OF JURISDICTION BEFORE ASS ESSING OFFICER ON RECEIPT OF NOTICE UNDER SECTION 148 OF T HE ACT AS WELL AS BEFORE COMPLETION OF THE ASSESSMENT UNDE R SECTION 144/147 OF THE ACT. SECTION 124 OF THE INC OME TAX ACT PROVIDES JURISDICTION OF THE ASSESSING OFFI CERS AND READS AS UNDER : 124. (1) WHERE BY VIRTUE OF ANY DIRECTION OR ORDER ISSU ED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 120, THE ASSESSING OFFIC ER HAS BEEN VESTED WITH JURISDICTION OVER ANY AREA, WITHIN THE LIMITS OF SU CH AREA, HE SHALL HAVE JURISDICTION (A) IN RESPECT OF ANY PERSON CARRYING ON A BUSINESS OR PROFESSION, IF THE PLACE AT WHICH HE CARRIES ON HIS BUSINESS OR PROFESSION IS S ITUATE WITHIN THE AREA, OR WHERE 5 HIS BUSINESS OR PROFESSION IS CARRIED ON IN MORE PL ACES THAN ONE, IF THE PRINCIPAL PLACE OF HIS BUSINESS OR PROFESSION IS SITUATE WITH IN THE AREA, AND (B) IN RESPECT OF ANY OTHER PERSON RESIDING WITHIN THE AREA. (2) WHERE A QUESTION ARISES UNDER THIS SECTION AS T O WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY PERSON, THE QUESTION SHALL BE DETERMINED BY THE [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR THE [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER; OR WHERE THE QUESTION IS ONE RELATIN G TO AREAS WITHIN THE JURISDICTION OF DIFFERENT [ PRINCIPAL DIRECTORS GENERAL OR ] DIRECTORS GENERAL OR [ PRINCIPAL CHIEF COMMISSIONERS OR ] CHIEF COMMISSIONERS OR [ PRINCIPAL COMMISSIONERS OR ] COMMISSIONERS, BY THE [ PRINCIPAL DIRECTORS GENERAL OR ] DIRECTORS GENERAL OR [ PRINCIPAL CHIEF COMMISSIONERS OR ] CHIEF COMMISSIONERS OR [ PRINCIPAL COMMISSIONERS OR ] COMMISSIONERS CONCERNED OR, IF THEY ARE NOT IN AGREEMENT, BY THE BOARD OR BY SUCH [ PRINCIPAL DIRECTOR GENERAL OR ] DIRECTOR GENERAL OR [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [ PRINCIPAL COMMISSIONER OR ] COMMISSIONER AS THE BOARD MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, SPECIFY. (3) NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER (A) WHERE HE HAS MADE A RETURN [UNDER SUB-SECTION (1) OF SECTION 115WD OR] UNDER SUB-SECTION (1) OF SECTION 139, AFTER THE EXP IRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED WITH A NOTICE UNDER SUB-SECT ION (1) OF SECTION 142 OR [SUB-SECTION (2) OF SECTION 115WE OR] SUB-SECTION ( 2) OF SECTION 143 OR AFTER THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER; (B) WHERE HE HAS MADE NO SUCH RETURN, AFTER THE EXP IRY OF THE TIME ALLOWED BY THE NOTICE UNDER [SUB-SECTION (2) OF SECTION 115WD OR SUB-SECTION (1) OF SECTION 142 OR UNDER SUB-SECTION (1) OF SECTION 115WH OR UN DER SECTION 148 FOR THE MAKING OF THE RETURN OR BY THE NOTICE UNDER THE FIR ST PROVISO TO SECTION 115WF OR UNDER THE FIRST PROVISO TO SECTION 144] TO SHOW CAU SE WHY THE ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF THE JUDGMENT OF THE ASSESSING OFFICER, WHICHEVER IS EARLIER. (4) SUBJECT TO THE PROVISIONS OF SUB-SECTION (3), W HERE AN ASSESSEE CALLS IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER, THEN THE ASSESSING OFFICER SHALL, IF NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM, REFER THE MATTER FOR DETERMINATION UNDER SUB-SECTION (2) BEFORE THE ASSESSMENT IS MADE . 6 (5) NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECT ION OR IN ANY DIRECTION OR ORDER ISSUED UNDER SECTION 120, EVERY ASSESSING OFF ICER SHALL HAVE ALL THE POWERS CONFERRED BY OR UNDER THIS ACT ON AN ASSESSING OFFI CER IN RESPECT OF THE INCOME ACCRUING OR ARISING OR RECEIVED WITHIN THE AREA, IF ANY, OVER WHICH HE HAS BEEN VESTED WITH JURISDICTION BY VIRTUE OF THE DIRECTION S OR ORDERS ISSUED UNDER SUB- SECTION (1) OR SUB-SECTION (2) OF SECTION 120.] 7. HON'BLE ALLAHABAD HIGH COURT IN THE MATTER OF HINDUSTAN TRANSPORT CO. V IAC OF IT REPORTED IN (19 91) 189 ITR 326 CONSIDERING THE OBJECTION TO THE JURISD ICTION OF THE ASSESSING OFFICER HELD THAT OBJECTION CANNOT BE RAISED AFTER THE ASSESSMENT IS COMPLETED. IN THIS CASE, THE ASSESSMENT YEAR UNDER CONSIDERATION WAS 1985-86 AND THE HON'BLE ALLAHABAD HIGH COURT CONSIDERING TH E PROVISIONS OF SECTION 124 OF THE INCOME TAX ACT AND CONSIDERED THE FOLLOWING POINTS : (I) WHAT IS THE NATURE OF POWER OF TRANSFER CONFERRED BY THE ACT ? AND (II) HOW THE ACT ITSELF VIEWS A DEFECT OF THE NATURE INVOLVED IN THE PRESENT CASE ? WE MAY MENTION THAT THE PROVISIONS OF SECTION 124(5 ) AS WERE APPLICABLE IN THE ASSESSMENT YEAR 1985-86 ARE ALMOST SIMILAR TO THE PROVISIONS CONTAINED IN SECTI ON 124(3) OF THE INCOME-TAX ACT AFTER AMENDMENT WHICH ARE APPLICABLE TO THE PRESENT CASE. THE HON'BLE ALLAHAB AD HIGH COURT FURTHER HELD : 'BEING AN ENACTMENT AIMED AT COLLECTING REVENUE, TH E 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 PR OVIDED IN SECTION 124(5) (A), THE RIGHT IS LOST AS SOON AS THE ASSESS MENT HAS BEEN COM- PLETED. EVEN WHERE THE RIGHT IS EXERCISED BEFORE TH E ASSESSMENT IS 7 COMPLETED, THE QUESTION IS TO BE DECIDED BY THE COM MISSIONER OR BY THE BOARD. COURTS DO NOT COME INTO THE PICTURE. FROM THE ABOVE PROVISIONS OF THE ACT, IT IS APPAREN T THAT THE ACT DOES NOT TREAT THE ALLOCATION OF FUNCTIONS TO VARIOUS AU THORITIES OR OFFICERS AS ONE OF SUBSTANCE. IT TREATS THE MATTER AS ONE OF PROCEDURE AND A DEFECT OF PROCEDURE DOES NOT INVALIDATE THE E ND ACTION. THE ANSWER TO THE FIRST QUESTION, THEREFORE, IS THAT TH E POWER IS ADMINIS- TRATIVE AND PROCEDURAL AND IS TO BE EXERCISED IN TH E INTEREST OF EXI- GENCIES OF TAX COLLECTION AND THE ANSWER TO THE SEC OND QUESTION IS THAT, UNDER THE ACT, A DEFECT ARISING FROM ALLOCATI ON OF FUNCTIONS IS A MERE IRREGULARITY WHICH DOES NOT AFFECT THE RESULTA NT ACTION. 8. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT ASSESSING OFFICER HAS JURISDICTION TO ISS UE NOTICE UNDER SECTION 147/148 OF THE INCOME TAX ACT. SINCE THE ASSESSEE DID NOT RAISE OBJECTION REGARDIN G JURISDICTION OF THE ASSESSING OFFICER ON RECEIPT OF THE NOTICE UNDER SECTION 148 AS WELL AS BEFORE COMPLETI ON OF ASSESSMENT, THEREFORE, SAID OBJECTION IS NOT VALID NOW AND ASSESSEE IS NOT ENTITLED TO CALL IN QUESTION TH E JURISDICTION OF A.O. UNDER SECTION 124(3) OF IT ACT . ASSESSEE'S APPEAL HAS NO MERIT. THE SAME IS, THERE FORE, LIABLE TO BE DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNES H SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST OCT., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD