Shri Deepak Gupta, Ghaziabad V. ACIT, Noida

ITA 1708/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61724 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-03-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 08-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEV JYOTI DAS; C B SINGH
• Keywords: Opportunity of being heard; Competent authority; Reassessment proceedings
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI T.S. KAPOOR ITA NOS. 1708 TO 1713/DEL/11 ASSTT. YRS: 1996-97 TO 2001-02 DEEPAK GUPTA VS. ACIT, CIRCLE NOIDA. 6/110, SECTOR-2, RAJINDER NAGAR, SAHIBABAD, DISTT. GHAZIABAD. PAN/ GIR NO.AFCPG9026R AND ITA NO. 1562/DEL/11 ASSTT. YR: 2002-03 SMT. ALKA TIWARI VS. ACIT, CIRCLE NOIDA. E-58, SECTOR 39, NOIDA. PAN/ GIR NO.ACGPT6725M ( APPELLANT ) ( RESPONDENT ) APPELLANTS BY : SHRI T.R. TALWAR ADV. SHRI SALIL AGARWAL ADV. SHRI R.P. MALL ADV. RESPONDENT BY : SHRI DEV JYOTI DAS CIT (DR) & SHRI C.B. SINGH SR. DR O R D E R PER R.P. TOLANI, J.M: : THIS IS A GROUP OF APPEALS IN THE CASES OF TWO ASSE SSEES. ITA NOS. 1708 TO 1713/DEL/2011 HAVE BEEN FILED BY SHRI DEEPAK GUP TA AGAINST SEPARATE ORDERS OF LD. CIT(APPEALS) RELATING TO A.Y. 1996-97 TO 2001-02. ITA NO. 1562/DEL/11 HAS BEEN PREFERRED BY SMT. ALKA TIWARI AGAINST LD. 2 CIT(APPEALS)S ORDER DATED 4-2-2011 RELATING TO A. Y. 2002-03. ALL THESE APPEALS ARE HEARD TOGETHER AND DISPOSED OF BY A CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE FIRST TAKE UP THE APPEALS BY SHRI DEEPAK GUP TA. ONE COMMON GROUND RAISED CHALLENGES THE VALIDITY OF JURISDICTI ON OF REASSESSMENT PROCEEDINGS BY ACIT, NOIDA U/S 147/148. THE ORDERS ARE ASSAILED , MAINLY ON THE GROUND THAT ASSESSEE WAS ALREADY ASSESSED BY ITO WARD-32(2), NEW DELHI AND ACIT NOIDA HAS NO JURISDICTION TO ISSUE T HESE NOTICES U/S 147/148 AND THE SUBSEQUENT TRANSFER OF JURISDICTION DATED 9 -3-2004, IS IN CONTRAVENTION OF SEC. 127, AS STATUTORY OPPORTUNI TY OF HEARING WAS NOT GIVEN TO ASSESSEE. THESE ISSUES HAVE BEEN RAISED BY FOLLOWING GROUNDS: ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEA RNED CIT(A) HAS ERRED:- 1. IN CONFIRMING THE ORDER OF THE ACIT CIRCLE NOIDA PASSED U/S 144/147 WHO LACKED JURISDICTION TO ISSUE NOTICE U/S 148 DATED 27-3-2003 FOR A.Y. 1996-97 TO 2001-02 & 31-3- 2003 FOR A.Y. 2002-03 AND SUBSEQUENT PROCEEDINGS U/S 142(1) IN PURSUANCE THERETO, BEFORE THE TRANSFER OF JURISDICT ION OVER THE ASSESSEE FROM DELHI TO NOIDA W.E.F. 9-3-2004, THUS MAKING THE ORDER OF REASSESSMENT PASSED BY THE AO NOIDA ILLEGA L/ AB INITIO VOID, AS NO NOTICES U/S 148 WERE ISSUED TO THE ASSE SSEES AFTER 9- 3-2004 WHEN THE JURISDICTION OVER THE ASSESSEES CA SE WAS TRANSFERRED FROM ITO WARD 33(2) TO ACIT NOIDA. 2. IN IGNORING THE CHIEF COMMISSIONER OF INCOME TAX MEERUT LETTER DATED 3-3-2004 REGARDING THE JURISDIC TION STATUS OF THE ASSESSEE IN DELHI & THE NEED TO GET THE JURISD ICTION TRANSFERRED OVER THE ASSESSEE FROM DELHI TO NOIDA U NDER SPECIFIC ORDER U/S 127 BY THE CIT DELHI, WHICH WAS SUBSEQUEN TLY PASSED ON 9-3-2004. 3 3. IN IGNORING THAT THE JURISDICTION OVER THE ASSES SEE LIED WITH ACIT CIRCLE NOIDA BEING THE DIRECTOR OF M/S AU RAM JEWELLERY PVT. LTD., RUNNING ITS BUSINESS ACTIVITIE S FROM 167, NEPZ, PHASE II NOIDA ALTHOUGH THE COMPANY S REGISTE RED WITH ROC DELHI & HARYANA, HAVING REGISTERED OFFICE IN DE LHI, BEING CONTROLLED BY THE DIRECTORS FROM DELHI AND FILING I TS INCOME TAX RETURNS IN DELHI. 4. THE ORDER PASSED U/S 127 OF THE INCOME TAX ACT D ATED 9- 3-2004 BY THE LEARNED CIT-XI, NEW DELHI TRANSFERRIN G JURISDICTION OVER THE APPELLANT FROM ITO WARD 33(2) NEW DELHI TO ACIT NOIDA IS BAD IN LAW FOR LACK OF OPPORTUNITY OF HEARING GIVEN TO THE APPELLANT PRIOR TO THE TRANSFER OF JUR ISDICTION. 5. ON MERITS, THE GROUNDS CHALLENGE FOLLOWING ADDIT IONS: A.Y. ASSESSED BY AO RELIEF GIVEN BY CIT(A) AFTER EFFECT OF CIT(A)S ORDER 1996-97 5,90,000 1,90,971 3,99,029 1997-98 2,03,70,630 NIL 2,03,70,630 1998-99 4,82,000 NIL 4,82,000 1999-2000 8,22,173 7,26,000 96,000 2000-01 2,22,000 96,000 1,26,000 2001-02 4,74,000 96,000 3,78,000 3. LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARG UES THAT FOLLOWING IS THE ORDER U/S 127(2) PASSED BY CIT-XI, DELHI DATED 9-3-2004, AROUND WHOM THE CASES OF BOTH THE ASSESSEE REVOLVE. THIS ORDER WILL DEMONSTRATE THAT ACIT NOIDA HAD NO JURISDICTION WHATSOEVER TO ISSUE NOTICES U/S 147/148 DATED 27-3-2003. AND NO OPPORTUNITY OF HEARING PRES CRIBED BY SEC. 127(2) WAS GIVEN WHILE TRANSFERRING ASSESSEES JURISDICTIO N FROM ONE CITY TO ANOTHER. 4 NO. CIT-XI/CENTRALISATION/2003-04/2607 OFFICE OF THE COMMISSIONER OF INCOME TAX DELHI-XI, NEW DELHI DATED: 9 TH MARCH, 2004. ORDER UNDER SECTION 127(2) OF THE INCOME TAX ACT, 1961 IN EXERCISE OF POWERS CONFERRED BY SECTION 127 OF T HE INCOME TAX ACT, 1961 AND OTHER POWERS ENABLING ME IN THI S BEHALF, I, THE COMMISSIONER OF INCOME-TAX DELHI-XI, NEW DELHI HEREBY TRANSFER THE CASE, THE PARTICULARS OF WHICH ARE MEN TIONED IN COLUMN NOS. 1 AND 2 OF THE SCHEDULE HEREUNDER FROM THE ASSESSING OFFICER MENTIONED IN COLUMN NO. 3 TO THE ASSESSING OFFICER MENTIONED IN COLUMN NO. 4 OF ANNEXURE BELOW :- NAME OF THE ASSESSEE ADDRESS FROM TO SHRI DEEPAK GUPTA 205, KAMAL PLAZA BUILDING, KAROL BAGH, NEW DELHI ITO WARD- 33(2), NEW DELHI. ACIT, NOIDA. THIS ORDER HAS BEEN PASSED FOR COORDINATED POST SEA RCH ASSESSMENT WITH IMMEDIATE EFFECT. SD/- (COMMISSIONER OF INCOME TAX) DELHI-XI, NEW DELHI. 3.1. A PERUSAL OF THE ORDER U/S 127(2) AND RECORD CLEARLY REVEALS THAT: (I) IT HAS NOT BEEN DISPUTED BY DEPARTMENT THAT P RESCRIBED OPPORTUNITY OF HEARING BEFORE TRANSFER WAS NOT GIVE N TO ASSESSEE. (II) EVEN IF UNSUSTAINABLE TRANSFER IS ASSUMED TO B E CORRECT THEN THE JURISDICTION WAS VESTED IN ACIT, NOIDA W.E.F. 19-3- 2004. NOTICE 5 U/S 147/148 WERE ISSUED PRIOR TO THAT DATE I.E. 9-3 -2003 & 31-3- 2003 (AY 2202-03) (III) FROM THE ADDRESS GIVEN IN THE ORDER IT IS CLE ARLY REVEALED THAT SHRI DEEPAK GUPTA WAS ASSESSED BY ITO, DELHI WITH RESIDE NTIAL ADDRESS AT KAROL BAGH, DELHI. THIS ORDER HAS NOT BEEN DISPU TED BY THE DEPARTMENT. (IV) THEREFORE, A PLAIN PERUSAL OF THIS ORDER CLEAR LY REVEALS THAT PRIOR TO 9-3-2004 ASSESSEE WAS ASSESSED BY ITO, WARD-33(2), NEW DELHI. 3.2. THESE IMPUGNED 148 NOTICES IN THIS CASE WERE I SSUED BY THE ACIT NOIDA ON 27-3-2003 FOR A.Y. 1996-97 TO 2001-02 & ON 31-3-2003 FOR A.Y. 2002-03, WHICH ARE PRIOR TO THE PURPORTED DATE OF T RANSFER OF THE JURISDICTION FROM DELHI TO NOIDA. THIS 127(2) ORDER IS ALSO UNSU STAINABLE BECAUSE NO STATUTORY OPPORTUNITY OF HEARING BEFORE TRANSFER WA S ACCORDED AND THESE INCOME-TAX OFFICES ARE SITUATE IN 2 DIFFERENT CITIE S. 3.3. SECTION 127 IS A MANDATORY SECTION WHICH CONFE RS JURISDICTION ON THE AO, VESTING HIM WITH THE POWER OF ASSESSMENT, REASS ESSMENT AND OTHER PROCEEDINGS. IF THE ASSESSEE IS ALREADY ASSESSED AT ANY CITY I.E. DELHI THE JURISDICTION FOR ISSUING 148 NOTICES VESTS WITH ITO , DELHI AND NOT ACIT, NOIDA. 3.4. FROM THE RECORD AND DEPARTMENTAL STAND, THERE IS NO ROOM FOR ANY DOUBT THAT, TILL THE PURPORTED ORDER U/S 127(2), TH E JURISDICTION VALIDLY VESTED WITH ITO, DELHI. IN THE INSTANT CASE, NOTICES U/S 1 48 UNDISPUTEDLY WERE ISSUED BY ACIT, NOIDA ON 27-3-2003 I.E. PRIOR TO TH E PURPORTED TRANSFER OF JURISDICTION. THESE NOTICES ISSUED WITHOUT LAWFUL A UTHORITY ARE AB INITIO VOID AND ALL THE CONSEQUENT PROCEEDINGS ARE ALSO BAD IN LAW. 6 3.5. BESIDES THE 127(2) ORDER ALSO IS INVALID AS NO OPPORTUNITY OF HEARING WAS GIVEN FOR TRANSFER OF JURISDICTION FROM DELHI T O NOIDA. 3.6. IT IS PLEADED THAT THE ASSESSEE OBJECTED TO 14 8 NOTICES IN WRITING BY LETTER DATED 21-7-2003, REPRESENTING THAT THAT HE WAS ASSESSED AT DELHI AND ACIT, NOIDA HAD NO JURISDICTION TO ISSUE NOTICES U/ S 148. NO COGNIZANCE OF SEC. 124(4) ALSO WAS TAKEN. THE SAME OBJECTIONS WER E SENT TO CIT, GHAZIABAD ON 27-7-2003 AND 21-1-2004. NEITHER THE A CIT NOIDA NOR CIT TOOK ANY FURTHER STEPS TO REDEEM THE PROCEEDINGS BY REQUESTING CIT, NEW DELHI FOR A VALID TRANSFER OF JURISDICTION FROM DEL HI TO NOIDA. SIMILARLY THEY DID NOT SEND THE INFORMATION IN THEIR POSSESSION TO AO/CIT, NEW DELHI TO INITIATE VALID PROCEEDINGS U/S 147/148. THUS FOR U NKNOWN REASONS ACIT, NOIDA WANTONLY VESTED HIMSELF WITH JURISDICTION IN DISREGARD OF LAW. 3.7. THE ASSESSEES CASE GETS STRENGTH FROM THE FAC T THAT CIT, MEERUT IN HIS LETTER DATED 3-3-04 TO CIT NOIDA EMPHASIZED THE NEE D FOR A VALID ORDER FOR TRANSFER OF INTER CHARGE JURISDICTION, WHICH IS AS UNDER: F.NO. CIT-TECH./APPROVAL/2003-04/SCRUTINY/V-1529 OFFICE OF THE CHIEF COMMISSIOENR OF INCOME TAX, MEERUT VAISHALI, GHAZIABAD. DATED: 03-03-2004. TO THE COMMISSIOENR OF INCOME TAX GHAZIABAD. SIR, SUB:- JURISDICTION- PROPOSAL FOR TRANSFER OF RECORD S OF M/S AURAM JEWELLERY EXPORT PVT. LTD., 167, NEPZ, NOIDA AND SH. DEEPAK GUPTA & SMT. URMILA GUPTA REG. KINDLY REFER TO YOUR LETTER DATED 20-01-2004 AND TH E QUERIES RAISED BY THIS OFFICE DATED 25-01-2004 TO ACIT, NOI DA. IN THIS REGARD, I AM DIRECTED TO CONVEY THE FOLLOWI NG:- 7 ACIT, NOIDA ASSUMED JURISDICTION OVER M/S AURUM JEW ELLERY EXPORT PVT. LTD., 167, NEPZ NOIDA BY VIRTUE OF ISSU E OF NOTICE U/S 148 DATED 27-03-2002 FOR A.Y. 95-96. THEREAFTER IN CASE OF MR. DEEPAK GUPTA NOTICE U/S 1 48 FOR THE A.Y. 1996-97 TO 2001-02 AND NOTICE U/S 142(1) FOR A .Y. 2002- 03 WERE ISSUED ON 27-3-2003 AND IN THE CASE OF SMT. URMILA GUPTA ALSO NOTICE U/S 142(1) FOR THE A.Y. 2002-03 W AS ISSUED ON 27-03-2003. FROM THE PERUSAL OF THE RECORD IT IS SEEN THAT THESE NOTICES WERE SERVED BY AFFIXTURE AND THERE WA S NO REGULAR SERVICE OF NOTICES. HOWEVER PRIOR TO THIS, AS REPORTED BY ACIT NOIDA, S H. DEEPAK GUPTA AND SMT. URMILA GUPTA HAVE BEEN FILING RETURN S REGULARLY IN THE RESPECTIVE WARDS AT DELHI. THE INFORMATION I N THIS REGARD WAS COMMUNICATED TO ACIT, NOIDA AND THE SAME IS AS FOLLOWS: NAME OF THE A.Y. DATE OF FILING WARD/ CIRCLE ASSESSEE THE RETURN SH. DEEPAK GUPTA 00-01 26-09-2000 WARD-33(2),DELH I -DO- 01-02 20-09-2001 -DO- -DO- 02-03 10-09-2002 -DO- SMT.URMILA GUPTA 00-01 29-09-2000 WARD-27(4),DELH I -DO- 01-02 26-09-2001 -DO- -DO- 02-03 08-10-2002 -DO- FROM THE ABOVE FACTS IT IS OBVIOUS THAT SH. DEEPAK GUPTA & SMT. URMILA GUPTA HAD VOLUNTARILY SUBMITTED THEMSEL VES TO THE JURISDICTION OF DELHI CHARGE MUCH BEFORE ACIT, NOID A ASSUMED JURISDICTION OVER THE CASE OF AURAM JEWELLERY PVT. LTD. THE REPORT OF ACIT, NOIDA ALSO CONFIRMS THE FACTS T HAT ITO WARD 33(2), DELHI AND WARD-27(4), DELHI HAVE CONFIR MED THEIR JURISDICTION OVER THE CASE OF SH. DEEPAK GUPTA & SM T. URMILA GUPTA RESPECTIVELY. MOREOVER, AS OF NOW THERE IS NO BUSINESS ACTIVITY IN THE COMPANY AND THE DIRECTORS ARE NOT R ECEIVING ANY REMUNERATION. THEREFORE AUTOMATIC ASSUMPTION OF JUR ISDICTION OF THE DIRECTORS ONLY BY VIRTUE OF FACTS THAT COMPA NY IS ASSESSED IN NOIDA, DOES NOT HOLD GOOD GROUND. CONSIDERING THESE FACTS THE ACIT, CIRCLE NOIDA SHOU LD NOT AUTOMATICALLY ASSUME JURISDICTION OVER THE CASE OF SH. DEEPAK GUPTA & SMT. URMILA GUPTA. THE INTER CHARGE CHANGE OF JURISDICTION BETWEEN TWO REGIONS REQUIRES CONCURREN CE OF THE CONCERNED COMMISSIONERS AND SPECIFIC ORDER U/S 127 OF INCOME 8 TAX ACT, 1961 BY THE CONCERNED CCIOT HAVING PRESEN T JURISDICTION OF THE CASE IN DELHI, NEEDS TO BE PASS ED. YOURS FAITHFULLY, SD/- (TARUN KUMAR) ADDL. COMMISSIONER OF INCOME TAX (HQ) MEERUT. COPY TO THE ADDL. COMMISSIONER OF INCOME TAX NOIDA FOR INFORMATION AND NECESSARY ACTION. SD/- ADDL. COMMISSIONER OF INCOME TAX (HQ) 3.8. ACIT NOIDA, SUBSEQUENT TO THIS LETTER REQUESTE D CIT GHAZIABAD FOR TRANSFER THE JURISDICTION OF THE ASSESSEES CASE F ROM CIT, NEW DELHI TO CIT, GHAZIABAD AND ASSIGN THE JURISDICTION TO THE ACIT C IRCLE, NOIDA. IT CLEARLY DEMONSTRATES THAT TRANSFER OF JURISDICTION WAS BELA TEDLY REQUESTED BY ACIT, NOIDA HIMSELF AFTER 3-3-2004. THE JURISDICTION WAS THEREAFTER TRANSFERRED WITHIN 5 DAYS BY ABOVE ORDER U/S 127(2) ON 9-3-2004 FROM ONE CITY TO ANOTHER WITHOUT GIVING OPPORTUNITY OF HEARING PRESC RIBED BY SEC. 127(2)(A). 3.9. IT IS FURTHER EMPHASIZED THAT DESPITE THIS LEG AL POSITION, ACIT, NOIDA ARBITRARILY PROCEEDED WITH INVALID 148 NOTICES AND FRAMED THE IMPUGNED EX PARTE ASSESSMENTS ON 22-3-2004 IN THE CASE OF DEEPA K GUPTA AND ON 29-3- 2005 IN THE CASE OF SMT. ALKA TIWARI. 3.10. THUS ALL THE 148 NOTICES ISSUED ON THE ASSESS EE ARE PRIOR TO THE DATE OF THE PURPORTED TRANSFER OF JURISDICTION AND AB INITI O VOID AND ACIT NOIDA HAD NO JURISDICTION TO ISSUE SUCH NOTICES U/S 148 AND F RAME THE IMPUGNED EX PARTE ASSESSMENTS. CONSEQUENTLY, ALL THESE NOTICES AND AS SESSMENTS BEING BAD IN LAW AB INITIO VOID DESERVE TO BE QUASHED. IN THIS B ACKDROP LD. COUNSEL CONTENDS THAT ASSESSEE WAS FILING HIS RETURN OF INC OME FOR FOLLOWING YEARS WITH ITO DELHI. 9 S.NO. ASSTT. YR. DATE OF FILING OF RETURN IN DELHI. 1. 1993-94 28-3-1994 2. 1994-95 18-2-1995 3. 1995-96 15-11-95 4. 1996-97 17-1-1997 5. 1997-98 22-2-1998 6. 2000-01 26-9-2000 7. 2001-02 20-9-2001 8. 2002-03 10-9-2002. 3.11. THE ASSESSEE WAS CONSECUTIVELY ASSESSED AT DE LHI FOR NUMBER OF YEARS, IS DEMONSTRATED BY THESE UNDISPUTED FACTS. UNFORTUN ATELY SORT OF DISPUTE ERUPTED BETWEEN ASSESSEE AND ONE HIGH RANK OFFICER OF THE INCOME-TAX DEPARTMENT SHRI BANI SINGH S/O RAM LAL. DUE TO IMP ENDING DISPUTES OFFICER STARTED CAUSING TROUBLE FOR THE ASSESSEE A ND AS HE COULD NOT INFLUENCE THE INCOME-TAX AUTHORITIES AT DELHI, EFFORTS WERE M ADE THROUGH NOIDA CIT BY ISSUING THESE NOTICES U/S 148. THE ASSESSEE WE NT ON OBJECTING TO THE JURISDICTION AND COMMUNICATING TO THE DEPARTMENTAL AUTHORITIES ABOUT THE ARBITRARY ACTS OF ACIT, NOIDA AND HIS INABILITY TO SUBMIT TO THIS ILLEGAL JURISDICTION. ASSESSEES OBJECTIONS WERE IGNORED AN D THIS LED TO ARBITRARY EX PARTE ASSESSMENTS, CREATING HUGE DEMAND. SINCE THE ASSESSEE COULD NOT GET THE JUSTICE FROM THE DEPARTMENT, HE WAS CONSTRAINED TO APPROACH THE HONBLE ALLAHABAD HIGH COURT BY WAY OF CIVIL WRIT P ETITIONS NO. 1023 OF 2004/ 6295 OF 2004 AGAINST VARIOUS INCOME-TAX AUTHO RITIES, INCLUDING THE SAID SHRI BANI SINGH. HONBLE ALLAHABAD HIGH COURT DIRECTED THE DIRECTOR GENERAL (INV.) AND DIRECTOR GENERAL (VIGILANCE) BY RESPECTIVE ORDERS TO DISPOSE OF THE ASSESSEES REPRESENTATION CONTAINING OBJECTIONS FOR THE TRANSFER OF JURISDICTION AND THE HARASSMENT BEING M ET TO THE ASSESSEE. THE DIRECTOR GENERAL (INV.) VIDE ORDER DATED 19-10-2004 THOUGH TOOK A STAND THAT 10 HE WAS NOT SUPERVISING/ CONTROLLING OFFICER AND REP ORTING ONLY TO THE MEMBER (INV.) CBDT AND HAD NO CONTROL OVER THIS MA TTER; HOWEVER, WITHOUT REFERRING TO THE ASSESSEES OBJECTIONS, IT WAS HELD , THE PETITIONERS ASSESSMENTS ARE BEING PROPERLY FRAMED BY THE OFFIC ERS OF NOIDA FALLING IN THE JURISDICTION OF CIT, GHAZIABAD. IT WAS FURTHER HELD THAT DG((INV.) HAD NO REASONABLE GROUND TO SET UP INQUIRY AGAINST ANY OF THE OFFICERS I.E. ACIT NOIDA AND OTHER RESPONDENTS IN THE WRIT PETITION AS THEY WERE NOT UNDER HIS CONTROL AND SUPERVISION. THEREAFTER, HONBLE ALLAHA BAD HIGH COURT BY AN ORDER DATED 30 TH MARCH 2010 AGAIN DIRECTED THE CIT(A) TO CONSIDER A ND DECIDE PETITIONERS APPEALS EXPEDITIOUSLY AND PREFE RABLY WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF RECEIPT OF THE CERTIFIE D COPY OF THE ORDER. CIT(A) WAS SPECIFICALLY DIRECTED TO CONSIDER AND AD JUDICATE THE QUESTION WITH REFERENCE TO THE JURISDICTION OF THE ACIT, NOI DA, AS RAISED BY THE ASSESSEE. 3.12. ASSESSEE AGAIN VIDE LETTER DATED 12-1-2004 RE QUESTED ACIT, NOIDA TO TRANSFER HIS CASE TO CORRECT JURISDICTION I.E. AO, NEW DELHI, WHICH IS AS UNDER:- DATE: 12/01/2004 TO, THE ASSISTANT COMMISSIONER INCOME TAX SECTOR 20, NOIDA. SUBJECT: TRANSFER MY CASE FROM NOIDA TO DELHI INCOM E TAX DEPARTMENT AND ALSO RELEASE THE SEIZED PROPERTI ES. RESPECTED SIR, IN REFERENCE TO THE ABOVE CAPTIONED MATTER, I WISH TO STATE THAT MY ACCOUNT OF THE CITIZEN BANK, NOIDA WAS SEIZED AN D FURTHER ISSUED A NOTICED UNDER SECTION 148 TO THE INCOME TA X ACT, IN 11 WHICH YOU HAVE ASKED FOR COPY OF INCOME TAX RETURN AND VARIOUS OTHER DETAILS. IN COMPLIANCE OF THAT NOTICE I PROVIDED THE COPY OF THE INCOME TAX RETURN DULY FILED AT DELHI I N WARD NO. 33(2) WITH A REQUEST THAT SINCE I AM FILING MY INCO ME TAX RETURN AT DELHI REGULARLY THEREFORE, TRANSFER MY CASE TO D ELHI INCOME TAX DEPARTMENT. ON SUBSEQUENT HEARING YOU INFORMED TO MY COUNSEL TH AT YOU HAVE SENT YOUR RECOMMENDATIONS TO TRANSFER THE CAS E FROM NOIDA TO DELHI FOR APPROVAL OF COMMISSIONER OF INCO ME TAX BUT TILL DATE I HAVE NOT RECEIVED ANY INFORMATION REGAR DING THAT. AS PER THE LAW OF INCOME TAX ACT PREVAILING IN INDI A, THE ASSESSEE HAS TO FILE THE INCOME TAX RETURN AT ONE PLACE AND THE DEPARTMENT HAS TO ASSESS HIM AT THAT PLACE ONLY. AC CORDING TO THIS ALSO THE ASSESSMENT OF MY CASE SHOULD BE DONE BY THE ASSESSING OFFICER OF WARD NO. 33(2), WHERE I AM REG ULARLY FILING MY INCOME TAX RETURN. SINCE I AM FILING MY INCOME TAX RETURN AND ASSESSED AT DELHI IN WARD NO. 33(2), THE COPY OF SAME IS AGAIN ATTACHED FOR YOUR KIND REFERENCE THEREFORE ONCE AGAIN YOU BARE REQUESTED TO SEND MY CASE TO DELHI WHERE I AM FILING MY INCOME TAX RETUR N AND ASSESSED REGULARLY, OTHERWISE I HA NO CHOICE TO MOV E TO THE HIGH COURT FOR TRANSFER OF MY CASE, RELEASE THE SEI ZED PROPERTIES AS WELL AS AGAINST ILLEGAL HARASSMENT MADE TO ME BY THE INCOME TAX DEPARTMENT, NOIDA. THANKING YOU YOURS FAITHFULLY, SD/- (DEEPAK GUPTA) 6/110, SECTOR-2, RAJENDER NAGAR, GHAZIABAD (UP) COPY TO : 1. THE COMMISSIONER INCOME TAX GHAZIABAD. 2. THE DIRECTOR GENERAL INCOME TAX INVESTIGATION, I NCOME TAX OFFICE (AYKAR BHAWAN) 5 TH ASHOSSSSSSSSK ROAD, LUCKNOW. 12 3.13. INTERESTINGLY FOR A.Y. 2002-03, ACIT, NOIDA H IMSELF DROPPED ASSESSMENT PROCEEDINGS BY FOLLOWING ORDER DATED 29- 12-2004: 29-12-2004: IN THIS CASE, THE PROCEEDINGS U/S 142( 1) WERE INITIATED ON 27-3-2003 ON THE BASIS OF THE INFORMAT ION RECEIVED FROM ADIAT (INVESTIGATION), GHAZIABAD VIDE HIS LETT ER DATED 24-3-2003. AFTER ISSUE OF ABOVE NOTICE, THE QUERY L ETTERS ASKING CERTAIN DETAILS AS WELL AS EVIDENCE FOR FILING THE INCOME TAX RETURN WERE ISSUED FROM TIME TO TIME AS THE ASSESSE E COULD NOT COMPLY THE REQUIREMENT OF THE NOTICE U/S 142(1) DAT ED 27-3- 2003. SUBSEQUENTLY, IT HAS BEEN INFORMED BY THE ASS ESSEE THAT HE USED TO FILE THE RETURN OF INCOME WITH ITO, WARD -33(2), DELHI VIDE ACKNOWLEDGEMENT NO. 8046 DATED 10-9-2002 AT THE INCOME OF RS. 1,02,540/-. THE JURISDICTION OVER THE ASSESSEE HAS BEEN ASSIGNED U/S 127 OF THE INCOME TAX ACT FROM IT O, WARD- 33(2), NEW DELHI TO THE UNDERSIGNED (ACIT, CIRCLE, NOIDA) VIDE ORDER DATED 29 TH MARCH 2004 BY THE COMMISSIONER OF INCOME TAX, DELHI-XI, NEW DELHI. SINCE THE RETURN W AS FILED BY THE ASSESSEE PRIOR TO ISSUE OF NOTICE U/S 142(1) , THEREFORE, THE PROCEEDINGS INITIATED VIDE NOTICE DATED 27-3-2002 A RE HEREBY DROPPED AS THE SAME BECOME INFRUCTUOUS. HOWEVER, TH E PROCEEDINGS U/S 147 IF REQUIRED SHALL BE INITIATED SEPARATELY. SD/- (C.B. SINGH) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE, NOIDA. 3.14. CIT(A) THEREAFTER BY ORDER DATED 7-2-2011 THO UGH ADMITTED THAT THE ASSESSEE HAS BEEN FILING THE RETURNS OF INCOME TILL A.Y. 2002-03 WITH WARD 33(2), NEW DELHI. NEVERTHELESS IT WAS ARBITRARILY HELD THAT ITO, WARD 33(2) ASSUMED JURISDICTION ON WRONG REPRESENTATION OF FAC TS BY ASSESSEE, THEREFORE, THE JURISDICTION OF AO, DELHI WAS AB INITIO ILLEGAL AND THAT OF ACIT, NOIDA VALID. WHILE LD. CIT(APPEALS) PROJECTED AS IF ASSES SEE WAS NON COOPERATIVE WITH ACIT, NOIDA AND MISREPRESENTED FACTS BEFORE HO NBLE HIGH COURT, 13 WITHOUT APPRECIATING THAT ASSESSEE WAS CONSISTENTLY OBJECTING TO ILLEGAL JURISDICTION, HAD NO LEGAL OBLIGATION TO SURRENDER HIMSELF TO IT IN ORDER TO AVOID ANTICIPATED HARASSMENT. 3.15. THOUGH ON ONE HAND IN ASSESSEES CASE IT IS B EING HELD THAT: (I) THERE IS NO NECESSITY OF GIVING OPPORTUNITY OF HEARING TO ASSESSEE FOR TRANSFER OF CASE RECORD FROM ONE CITY TO ANOTHE R; (II) DELHI AND GHAZIABAD ARE PRACTICALLY SAME CITY. ON THE OTHER HAND WHILE TRANSFERRING THE JURISDICTION OF ASSESSEES W IFE SMT. URMILA GUPTA IN SIMILAR ORDER U/ 127(2) DATED 16-3-2004, C IT DELHI NOTICE OF HEARING WAS GIVEN WHICH IS EVIDENT FROM THE ORDE R. 3.16. CIT(A) IN THE APPELLATE ORDER DATED 7-2-2011 HELD THAT ACIT, NOIDA HAD VALID JURISDICTION OVER THE ASSESSEE ON FOLLOWI NG CONSIDEWRA TIONS: (I) WITHOUT REFUTING ASSESSEES CLAIM THAT NO 148 N OTICE DATED 27- 3-2003 WAS NOT SERVED ON HIM. IT HAS BEEN HELD THAT AS PER I.T. LAW AND CIVIL PROCEDURE CODE, NOTICE U/S 148 IS DE EMED TO BE SERVED ON 27-3-2003 ON THE ASSESSEE; AND SHRI DEEPA K GUPTA SHOULD HAVE OBJECTED ON THE ISSUE OF JURISDICTION A T THE MOST BY 27 TH APRIL, 2003. AS NO SUCH OBJECTION WAS RAISED BY HI M WITHIN THE STIPULATED TIME, JURISDICTION OF ACIT, NOIDA CA N NOT BE CHALLENGED. (II) AS AN ABUNDANT PRECAUTION, THE AO TOOK ALL PAI NS TO GET THE ASSESSEES CASE TRANSFERRED FROM ITO WARD 33(2) DEL HI TO HIM. IN EXERCISE OF POWER CONFERRED BY SUB-SECTION (2) O F SECTION 127 OF THE I.T. ACT, 1961 AND OTHER POWERS ENABLING HIM IN THIS BEHALF THE COMMISSIONER OF INCOME TAX DELHI XI, NEW DELHI HAS TRANSFERRED THE CASE OF SHRI DEEPAK GUPTA UNDER THE JURISDICTION OF THE PRESENT AO W.E.F. 9-3-2004. 14 (III) THE EXERCISE OF TRANSFERRING THE JURISDICTION OF THE ASSESSEE WITH THE PRESENT AO WAS DONE BEFORE PASSING OF THE ASSES SMENT ORDER ALTHOUGH IT WAS NOT REQUIRED. FURTHER THE CON TENTION OF THE APPELLANT THAT HE WAS NOT GIVEN AN OPPORTUNITY BEFO RE PASSING OF ORDER U/S 127 OF ACT DATED 09-03-2004 BY CIT XI, NE W DELHI FOR FILING OBJECTIONS TO THE TRANSFER OF HIS CASE F ROM DELHI TO NOIDA HAS NO RELEVANCE PARTICULARLY IN LIGHT OF THE FACT THAT THE APPELLANT WAS ADMITTEDLY HAVING ITS PRINCIPAL PLACE OF BUSINESS ACTIVITIES AT GHAZIABAD ONLY AND NO BUSINESS WAS CO NDUCTED FROM DELHI. (IV) IT IS ALSO OBSERVED THAT THE APPELLANT WAS FUL LY AWARE OF THE FACT THAT ACIT, NOIDA WAS PROCEEDING TO COMPLETE APPELLA NTS ASSESSMENT AND IT WAS IN APPELLANTS KNOWLEDGE THAT HIS CASE WOULD BE CENTRALIZED WITH HIM BUT HE COULD NOT FURN ISH ANY JUSTIFICATION OF ASSUMING JURISDICTION IN DELHI EIT HER BEFORE THE ADIT(INV.) OR AO OR EVEN DURING APPELLATE PROCEEDIN GS. (V) FURTHER, OPPORTUNITY IS NOT NEEDED EVEN IN VIEW OF SECTION 127(3), WHICH READS AS UNDER:- 127(3) NOTHING IN SUB-SECTION (1) OR SUB-SECTION ( 2) SHALL BE DEEMED TO REQUIRE ANY SUCH OPPORTUNITY TO BE GIVEN WHERE THE TRANSFER IS FROM ANY ASSESSING OFFI CER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) TO ANY OTHER ASSESSING OFF ICER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) AND THE OFFICES OF ALL SUC H OFFICERS ARE SITUATED IN THE SAME CITY, LOCALITY OR PLACE. NOIDA AND DELHI ARE, FOR ALL PRACTICAL PURPOSES, SA ME LOCALITY OR PLACE AND HENCE, IN SPIRIT, IF NOT IN L ETTERS, THE ASSESSEES JURISDICTION WAS BEING TRANSFERRED FROM ONE AO TO ANOTHER AT SAME PLACE. FROM THIS ANGLE ALSO, 15 OPPORTUNITY WAS NOT REALLY NEEDED TO BE GIVEN TO TH E ASSESSEE. THUS THE CONTENTION RAISED BY THE APPELLANT REGARDI NG THE SAME HAS NO FORCE AND IS HEREBY REJECTED. (VI) TWO FACTS ARE GIVEN IMPORTANCE, NAMELY, THE AO NOIDA WAS HAVING TERRITORIAL JURISDICTION OVER THE AREA WHERE THE ASSESSEE WAS CONDUCTING HIS BUSINESS AND SECONDLY IN VIEW OF SECTION 124(3)(B), THE ASSESSEE, SHRI DEEPAK GUPTA, COULD H AVE QUESTIONED THE JURISDICTION OF ACIT, NOIDA WITHIN T HE TIME LIMIT OF 30 DAYS FROM THE SERVICE OF NOTICE U/S 148 I.E. LATEST BY 27- 04-2003. HOWEVER, SHRI DEEPAK GUPTA NEITHER FILED A NY RETURN NOR FILED ANY LETTER OF OBJECTION REGARDING JURISDI CTION WITHIN THE STIPULATED PERIOD. (VII) ORDER OF DGIT (INV.) LUCKNOW CLEARLY HELD TH AT ACIT, NOIDA HAD VALID JURISDICTION OVER ASSESSEE. (VIII) ASSESSEES BANK A/CS HAVE NOIDA ADDRESS AND ASSESSEE HAD USED NOIDA ADDRESS ALSO. (IX) RELIANCE WAS PLACED ON M/S AMULYA GENERAL TRAD ING & AGENCIES LTD. VS. ACIT (1998) 65 ITD 329 (DEL.), OB SERVING AS UNDER: SECTION 124, READ WITH SECTION 120, OF THE INCOME TAX ACT, 1961 INCOME-TAX AUTHORITIES JURISDICTION O F ASSESSMENT YEARS 1988-89 TO 1992-93 ASSESSEE COMPANY WAS NOT ONLY CARRYING ON BUSINESS AT DELHI BUT ALSO HAD ITS HEAD OFFICE THERE. NO MATERIAL WAS AVA ILABLE TO SHOW THAT IT HAD EARNED ANY PART OF ITS INCOME A T GHAZIABAD IT FILED RETURNS BEFORE ASSESSING OFFIC ERS AT DELHI AND GHAZIABAD PM 14-02-1996, ORDER U/S 124( 2) WAS PASSED BY CHIEF COMMISSIONER, DELHI IN CONNECTI ON WITH ASSESSMENT YEAR 1986-87 ASSESSING JURISDICTION OVER 16 ASSESSEE COMPANY TO ASSESSING OFFICER, DELHI- FOR Y EARS UNDER CONSIDERATION. ASSESSING OFFICER, DELHI PASSE D ASSESSMENT ORDERS ON 08-03-1996 IN PURSUANCE TO NOT ICE U/S 148 ISSUED ON 17-01-1994, THAT IS PRIOR TO PASS ING OF JURISDICTION ORDER. ASSESSEE CHALLENGED ASSESSMENT ORDERS ON GROUNDS THAT (I) PRIOR TO PASSING OF JURISDICTIO N ORDER ASSESSING OFFICER, DELHI HAD NO JURISDICTION TO ISS UE NOTICES U/S 148 AND COMPLETE ASSESSMENTS, (II) ASSE SSMENT ORDERS FOR SOME ASSESSMENT YEARS HAD ALREADY BEEN PASSED AT GHAZIABAD LONG BEFORE 14-02-1996, AND (II I) JURISDICTION ORDER WAS INVALID AS IT WAS PASSED WIT HOUT CONSENT ORDER BY CHIEF COMMISSIONER, KANPUR- WHETHE R, SINCE ASSESSEE CARRIED ON BUSINESS ACTIVITIES AND H AD HEAD OFFICE AT DELHI, TERRITORIAL JURISDICTION OVER ITS CASE VEST ED WITH ASSESSING OFFICER, DELHI ESPECIALLY WHEN ASSES SEE HAD CHALLENGED JURISDICTION AT GHAZIABAD AND HAD REQUESTED CHIEF COMMISSIONER, KANPUR FOR TRANSFER O F TIS CASE FROM GHAZIABAD TO DELHI HELD YES. WHETHER, THEREFORE, ANY SPECIFIC ORDER OF CHIEF COMMISSIONER, KANPUR TRANSFERRING CASE OF ASSESSEE TO DELHI WAS REQUIRED HELD, NO- WHETHER JURISDICTION ORDER U/S 124(2) DATED 10-04-1996 WAS A VALID ORDER AS ORAL CONSENT FROM CHIEF COMMISSIONER, KANPUR HAD BE EN OBTAINED HELD, YES- WHETHER, IN VIEW OF FACT THAT ASSESSING OFFICER, DELHI HAD ALREADY GOT TERRITORIA L JURISDICTION OVER ASSESSEE, NOTICES U/S 148 ISSUED PRIOR TO PASSING OF SAID ORDER WERE NOT INVALID AND, THEREFO RE, ASSESSMENT ORDERS PASSED 08-03-1996 AT DELHI WERE T HE ONLY VALID ASSESSMENT ORDERS- HELD, YES. 3.17. LD. COUNSEL CONTENDS THAT THE FINDINGS GIVEN BY AO & CIT(A) ARE CONTRARY TO LAW AND FACTS ON RECORD AS: (I) ASSESSEE WAS NOT SERVED WITH NOTICE U/S 148 DAT ED 27-3-2003. NO PROOF OF SERVICE IS EVER PRODUCED BY DEPARTMENT. TH US ASSESSEE AT THE FIRST AVAILABLE OPPORTUNITY ON THE KNOWLEDGE AB OUT 148 NOTICE 17 SUBMITTED THAT FIRST NOTICE DATED 27-3-2003 WAS NOT SERVED ON THE ASSESSEE. THIS IS CLEAR FROM THE RECORD THAT AGAIN NOTICE U/S 148 WAS ISSUED ON ASSESSEE ON 17-7-2003 THROUGH INSPECT OR, WHICH WAS ALSO NOT RECEIVED BY IT. IF THERE WAS A PROPERLY SE RVED NOTICE U/S 147, WHY WOULD AO ISSUE ANOTHER 148 NOTICE ON 17-7- 2003. ON COMING TO THE KNOWLEDGE OF THESE PROCEEDINGS, ASSES SEE OBJECTED ON 21-7-2003 ITSELF POINTING OUT THAT HE WAS ASSESS ED AT DELHI AND ACIT, NOIDA HAD NO JURISDICTION. THE SAME OBJECTION WAS SENT TO CIT, GHAZIABAD ALSO. NONE OF THE AUTHORITIES EVER E XAMINED THESE OBJECTIONS. IT IS WRONG ON THE PART OF LD. CIT(APP EALS) TO HOLD THAT 148 NOTICE DATED 27-3-2003 WAS RECEIVED BY THE ASSE SSEE. WITHOUT VERIFYING THE FACT ABOUT SERVICE ON THE ASSESSEE, T HE SERVICE HAS BEEN DEEMED BECAUSE NOTICES WERE ISSUED. IT HAS BEE N HELD THAT ASSESSEE SHOULD HAVE OBJECTED TO THE JURISDICTION B Y 27-4-2003, IGNORING THAT ASSESSEE HAD FILED PROPER OBJECTIONS WITH ALL THE DETAILS ABOUT THE NON SERVICE OF NOTICE BEFORE VARI OUS COMPETENT AUTHORITIES. AUTHORITIES KNEW THAT THE ASSESSEE WAS ASSESSED AT DELHI, HOWEVER DELIBERATELY DID NOT EVEN CONSIDER T HE STATUTORY OBJECTIONS RAISED BY THE ASSESSEE AND NO STEP WAS T AKEN TO CORRECT THEIR MISTAKE BY EITHER TRANSFERRING THE MATERIAL A VAILABLE WITH THEM TO AO, DELHI OR IMMEDIATELY ASKING THE CIT, DE LHI TO TRANSFER JURISDICTION TO ACID, NOIDA. (II) IT IS A CASE WHERE DEPARTMENT IS SITTING SILE NT OVER THE SPECIFIC OBJECTIONS RAISED BY THE ASSESSEE AND TO RUB SALT T O THE INJURY IT IS BEING ACCUSED, THAT ASSESSEE DID NOT OBJECT TO TH E JURISDICTION BY 27-4-2003, THUS ACIT, NOIDA IS VESTED WITH THE JURI SDICTION. IT IS BEING CONVENIENTLY FORGOTTEN THAT EVEN IN CASE AS SESSEE DOES NOT 18 OBJECT, SEC. 124(3) IS NOT APPLICABLE TO ASSESSEE I NASMUCH AS THE ASSESSEE HAS ALREADY SUBMITTED HIS RETURN OF INCOME FOR A.Y. 1996- 97 ON 17-1-1977 AND FOR SUBSEQUENT YEARS AS MENTION ED ABOVE. IN SUCH CASES EVEN SEC. 124(3) DOES NOT POSTULATE 148 BEING ISSUED BY ANOTHER OFFICE. LOOKING FROM ANY ANGLE THIS FINDING OF LD. CIT(APPEALS) ABOUT DEEMED SERVICE AND BELATED OBJEC TIONS ARE UNJUSTIFIED. IN THE ABSENCE OF A VALID TRANSFER ORD ER BY COMPETENT AUTHORITY AND WITHOUT CONSIDERING THE ASSESSEES OB JECTIONS, ACIT, NOIDA ON HIS OWN COULD NOT HAVE PROCEEDED AGAINST A SSESSEE. 3.18. THE REFERENCE TO SEC. 127(4) IS TOTALLY IRREL EVANT INASMUCH AS THERE IS NO WHISPER OF TRANSFER OF THE ASSESSEES RECORD FRO M ITO DELHI PRIOR TO 9 TH MARCH 2004 AND WITHOUT A VALID TRANSFER ORDER, ALBE IT WRONG ORDER ALSO ACIT, NOIDA COULD NOT HAVE ISSUED IMPUGNED NOTICES U/S 148 DATED 27-3- 2003 AND WILY INLY VESTED HIMSELF ASSESSING JURISDI CTION THAT TOO IGNORING THE OBJECTIONS OF THE ASSESSEE. 3.19. APROPOS THIRD FINDING, LD. COUNSEL CONTENDS T HAT ACIT, NOIDA TOOK NO PAINS FOR VALID TRANSFER OF JURISDICTION. RATHER HE SLEPT ON THE LEGAL PROCEDURE AND ASSESSEES OBJECTIONS. THE TRANSFER ORDER AGAIN IS BAD IN LAW AS MANDATORY REQUIREMENT OF OPPORTUNITY OF BEING HEARD WS NOT GIVEN RELIANCE IS PLACED ON: - MELCO INDIA PVT. LTD. & OTHERS V. CIT (2003) 260 ITR 450 (DEL); - ANAND KUMAR ARYA V. CIT (2009) 314 ITR 324 (CAL) - SINGHAL ENTERPRISES PVT. LTD. VS. CIT (2009) 315 ITR 246 (CAL) - ANIL KUMAR KOHARI VS. UOI (2010) 39 DTR 19 (GAU). 3.20. THE CLEAR SCHEME OF INCOME-TAX LAW PROVIDES T HAT WHEN AN OFFICER HAS JURISDICTION OVER THE ASSESSEE, THE SAME CANNOT BE TRANSFERRED AND ASSUMED BY ANOTHER OFFICER UNLESS THERE IS AN APPRO PRIATE ORDER PASSED BY THE 19 COMPETENT AUTHORITY TRANSFERRING THE JURISDICTION F ROM ONE CITY TO OTHER AFTER GIVING AN OPPORTUNITY OF HEARING TO ASSESSEE. 3.21. COMING TO THE RELIANCE ON THE ORDER OF DGIT ( INV.), RELIANCE IS WHOLLY MISPLACED AS DGIT (INV.) HIMSELF HAS OBSERVED IN H IS ORDER THAT HE HAD NO ROLE IN DECIDING THE ISSUE OF JURISDICTION AND ON O NE HAND EXPRESSED HIS INABILITY SURPRISINGLY VARIOUS ADVERSE OBSERVATIONS HAVE BEEN MADE AGAINST ASSESSEE . WHEN THE DGIT (INV.) HIMSELF ACCEPTED TH AT HE HAS NO POWER TO DECIDE THE ISSUE OF JURISDICTION AND HE REPORTS ONL Y TO THE MEMBER(INV.), CBDT, ANY ADVERSE REFERENCE OR MENTION IN THE ORDER AGAINST ASSESSEE IS WITHOUT ANY JUSTIFICATION. CIT(A)S RELIANCE ON HIS ORDER IS MISPLACED AND SELF CONTRADICTORY. 3.22. COMING TO THE OBSERVATION THAT NOIDA AND DELH I FOR ALL PRACTICAL PURPOSES ARE SAME LOCALITY AND PLACE, IT IS VEHEMEN TLY ARGUED THAT LD. CIT(A)S FINDINGS HAVE NO LEGS TO STAND AND THEY AR E SELF CONTRADICTORY. INCOME-TAX DEPARTMENT ITSELF REGARDS DELHI AND NOI DA AS TWO DIFFERENT GEOGRAPHICAL LOCATIONS IN TERMS OF CITY AND STATE, AS THE NOIDA COMES UNDER U.P. STATE. AS PER THE DEPARTMENTAL HIERARCHY THERE ARE SEPARATE CCIT AS THEY ARE TREATED AS TWO DIFFERENT CHARGES, THEREFO RE, THERE IS NO MERIT IN CIT(A)S FINDING. THE I.T. ACT HAS A CLEAR STATUTE ON THIS ISSUE WHICH CANNOT BE INTERPRETED ON THE BASIS OF PRACTICAL PURPOSES MEANINGS. WHEN THERE IS A SPECIFIC STATUTE GOVERNING THE ISSUE, THE SAME CANN OT BE WHISHED AWAY ON THE BASIS OF PRACTICAL PURPOSES. 3.23. THE OBSERVATION THAT ASSESSEE HAD A BANK A/C AND ADDRESS IN NOIDA HAS NO RELEVANCE INASMUCH AS ANY ASSESSEE CAN MAIN TAIN BANK A/CS AND ADDRESSES OF DOMICILE AT VARIOUS PLACES DEPENDING O N EXIGENCIES. HOWEVER, FOR THE PURPOSE OF INCOME-TAX THERE IS ALWAYS ONE A SSESSING JURISDICTION AND MERELY BECAUSE THE ASSESSEE HAD NOIDA BANK A/C AND ADDRESS WILL NOT TAKE 20 AWAY THE STARK FACT THAT ASSESSEE WAS UNDISPUTEDLY ASSESSED AT DELHI, WHICH NONE OF THE AUTHORITIES HAS DENIED. 3.24. RELIANCE PLACED BY LD. CIT(APPEALS) ON THE CA SE OF M/S AMULYA GENERAL TRADING & AGENCIES LTD. (SUPRA) IS ALSO MIS PLACED INASMUCH AS IN THIS CASE ASSESSEE FILED RETURNS FOR SAME YEAR AT T WO PLACES I.E. DELHI AND GHAZIABAD AND BOTH AOS PASSED THE ASSESSMENT ORDER S AND DISPUTE PERTAINED TO WHICH ASSESSMENT ORDER WAS TO BE ADOPT ED. 3.25 LD. COUNSEL CONTENDS THAT IN THE CASE OF COL. PARAMJAIT SINGH VS. CIT (1996) 220 ITR 446 (P&H), HONBLE PUNJAB & HARYANA HIGH COURT ON SIMILAR FACTS HELD AS UNDER: 4. WE HAVE HEARD THE COUNSEL FOR THE PARTIES AND IN T HE NORMAL COURSE WE WOULD HAVE ACCEPTED THE PRELIMINARY OBJEC TION RAISED BY THE DEPARTMENT AND DIRECTED THE PETITIONER TO RA ISE ALL THE PLEAS BEFORE THE ITO BUT KEEPING IN VIEW THE FACT T HAT THE PRESENT IS A CASE WHERE THERE IS TOTAL LACK OF JURI SDICTION IN RESPONDENT NO. 2, WE ARE INTERFERING IN THE MATTER. THERE IS NO GAINSAYING THE FACT THAT THE PETITIONER WAS POSTED AT PUNE WHEN HE WAS IN THE SERVICE OF THE ARMY AND FOR THE ASSES SMENT YEAR IN QUESTION HE FILED HIS RETURN OF INCOME WITH THE ITO THERE AND THE SAME STANDS ASSESSED. THE PROCEEDINGS HAD BEEN COMPLETED AND THE TAX FOUND PAYABLE HAD BEEN DEPOSITED/ACCOUN TED FOR. THEREAFTER, IF THE ASSESSMENT PROCEEDINGS ARE TO BE RE-OPENED OR IF THE INCOME FOR THE RELEVANT ASSESSMENT YEAR IS T O BE REASSESSED, IT IS THE ITO WHO ASSESSED THE SAME IN THE FIRST INSTANCE ALONE HAS THE JURISDICTION TO PROCEED IN T HE MATTER UNDER SECTION 147 READ WITH SECTION 148 UNLESS THE CASE HAS BEEN TRANSFERRED BY A COMPETENT AUTHORITY TO ANOTHE R ASSESSING OFFICER UNDER SECTION 127 OF THE ACT AND IN THAT EV ENT THE LATTER WILL HAVE JURISDICTION TO PROCEED. SECTION 127 WHIC H IS RELEVANT FOR OUR PURPOSE IS REPRODUCED HEREUNDER FOR FACILIT Y OF REFERENCE :- 21 'POWER TO TRANSFER CASES - (1) THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER MAY, AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER, WHEREVER IT IS POSSIBLE TO DO SO, AND AFTER RECORDING HIS REASONS FOR DOING SO, TRANSFER ANY CASE FROM ONE OR MORE ASSESSING OFFICERS SUBORDINATE TO HIM (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) TO ANY OTHER ASSESSING OFFICER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) ALSO SUBORDINATE TO HIM. (2) WHERE THE ASSESSING OFFICER OR ASSESSING OFFICE RS FROM WHOM THE CASE IS TO BE TRANSFERRED AND THE ASSESSIN G OFFICER OR ASSESSING OFFICERS TO WHOM THE CASE IS T O BE TRANSFERRED ARE NOT SUBORDINATE TO THE SAME DIRECTO R GENERAL OF CHIEF COMMISSIONER OR COMMISSIONER, - ( A )WHERE THE DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS TO WHOM SUCH ASSESSING OFFICERS ARE SUBORDINATE ARE IN AGREEMENT, THEN THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER FROM WHOSE JURISDICTION THE CASE IS TO BE TRANSFERRED MAY, AFT ER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER, WHEREVER IT IS POSSIBLE TO DO SO, AND AFTER RECORDING HIS REASONS FOR DOING SO , PASS THE ORDER; ( B )WHERE THE DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS AFORESAID ARE NOT IN AGREEMENT, THE ORDER TRANSFER RING THE CASE MAY, SIMILARLY, BE PASSED BY THE BOARD OR ANY SUCH DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER AS THE BOARD MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, AUTHORISE IN THIS BEHALF. (3) NOTHING IN SUB-SECTION (1) OR SUB-SECTION (2) S HALL BE 22 DEEMED TO REQUIRE ANY SUCH OPPORTUNITY TO BE GIVEN WHERE THE TRANSFER IS FROM ANY ASSESSING OFFICER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURR ENT JURISDICTION) TO ANY OTHER ASSESSING OFFICER OR ASS ESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) AND THE OFFICES OF ALL SUCH OFFICERS ARE SITUATED IN THE SAME CITY, LOCALITY OR PLACE. (4) THE TRANSFER OF A CASE UNDER SUB-SECTION (1) OR SUB- SECTION (2) MAY BE MADE AT ANY STAGE OF THE PROCEED INGS, AND SHALL NOT RENDER NECESSARY THE RE-ISSUE OF ANY NOTICE ALREADY ISSUED BY THE ASSESSING OFFICER OR ASSESSIN G OFFICERS FROM WHOM THE CASE IS TRANSFERRED. EXPLANATION - IN SECTION 120 AND THIS SECTION, THE WORD 'CASE', IN RELATION TO ANY PERSON WHOSE NAME IS SPECIFIED IN ANY ORDER OR DIRECTION ISSUED THEREUNDER, MEANS ALL PROCEEDINGS UNDER THIS ACT IN RESPECT OF ANY YEAR WHICH MAY BE PENDING ON THE DATE OF SUCH ORDER OR DIRECTION OR WHICH MAY HAVE BEEN COMPLETED ON OR BEFORE SUCH DATE, AND INCLUDES ALSO ALL PROCEEDINGS UNDER THIS ACT WHICH MAY BE COMMENDED AFTER THE DATE OF SUCH ORDER OR DIRECTION IN RESPECT OF ANY YEAR.' UNDER THE AFORESAID PROVISION, THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER CAN TRANSFER ANY CASE AT ANY STAGE OF THE PROCEEDINGS FROM ONE ASSESSING OFFICER SUBORDINATE TO HIM TO ANOTHER. IF BOTH THE ASSESSING OFFICERS ARE NOT SUBORDINATE TO THE SAME DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER, THEN THE TRANSFER CAN BE MADE ON THE RESPECTIVE DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS AGREEING AND IN THE EVENT OF DISAGREEMENT, BY THE BOARD OR ANY SUCH DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER AUTHORISED BY IT. THE SECTION 23 EXPRESSLY PROVIDES THAT ON SUCH A TRANSFER IT IS NO T NECESSARY TO RE-ISSUE ANY NOTICE WHEN THE SAME HAS ALREADY BEEN ISSUED BY THE ASSESSING OFFICER FROM WHOM THE CASE IS TRANSFERRED AND THE ASSESSING OFFICER TO WHOM THE CASE IS TRANSFERRED IS ENTITLED TO PROCEED FROM THE STAGE AT WHICH HE RECEIVES THE CASE FROM HIS PREDECESSOR. IT IS ALSO PROVIDED THAT WHEREVER IT IS POSSIBLE TO DO SO, THE ASSESSEE SHAL L BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE AN ORDER OF TRANSFER IS PASSED AND THAT THE COMPETENT AUTHORITY WILL RECORD HIS REASONS FOR THE TRANSFER. THE EXPLANATION TO SECTION 127, MAKES IT CLEAR THAT ONCE AN ORDER OF TRANSFER IS MADE UNDER THE SECTION, ALL PENDING PROCEEDINGS FOR DIFFERENT YEARS ARE TRANSFERRED AND THE ASSESSING OFFICER TO WHOM THE CASE IS TRANSFERRED WOULD BE IN A POSITION TO CONTINUE ALL THE PENDING PROCEEDINGS AND TO INSTITUTE FURTHER PROCEEDINGS AGAINST THE ASSESSEE IN RESPECT OF ANY YEAR, PAST OR FUTURE, AN D EVEN TO RE-OPEN THE ASSESSMENT FOR AN EARLIER YEAR WHICH STOOD COMPLETED AT THE DATE OF THE TRANSFER. IT IS CLEAR THAT IN THE ABSENCE OF ANY TRANSFER ORD ER NO ASSESSING OFFICER OTHER THAN THE ONE WHO INITIATED THE PROCEEDINGS OR COMPLETED THE ASSESSMENT SHALL HAVE JURISDICTION TO CONTINUE WITH THE PROCEEDINGS OR EVEN TO RE-OPEN A CONCLUDED ASSESSMENT. IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE FILE OF THE PETITIONER PERTAINING TO THE ASSESSMENT YEAR 1988-89 HAS NOT BEEN TRANSFERRED FROM THE JURISDICTION OF ASSESSING OFFICER, PUNE TO THE ITO, JALANDHAR (RESPONDENT NO. 2) HEREIN. AS A MATTER OF FACT, NO ORDER OF TRANSFER HAS BEEN PASSED BY THE COMPETENT AUTHORITY UNDER SECTION 127 FOR ANY ASSESSMENT YEAR AND, THEREFORE, THE PROCEEDINGS FOR RE- ASSESSMENT INITIATED BY RESPONDENT NO. 2, ARE WHOLLY WITHOUT JURISDICTION. WE HAVE, THEREFORE, NO HESITATION IN QUASHING THE IMPUGNED NOTICE DATED 13-3-1995 (ANNEXURE P-4 WITH THE WRIT PETITION) ISSUED BY RESPONDENT NO. 2 UNDER SECTION 148. 24 5. IT WAS ALSO CONTENDED ON BEHALF OF THE PETITIONER THAT RESPONDENT NO. 2 DID NOT HAVE SUFFICIENT MATERIAL B EFORE HIM FOR RE-OPENING THE ASSESSMENT PROCEEDINGS AND THAT IT W AS A MALA FIDE EXERCISE OF POWER SINCE IT WAS BEING EXERCISED AT T HE BEHEST OF THE FATHER OF THE PETITIONER'S SON-IN-LAW. SINCE WE HAVE HELD THAT THE ITO, JALANDHAR HAS NO JURISDICTION TO RE-O PEN THE CONCLUDED ASSESSMENT OF THE PETITIONER FOR THE ASSE SSMENT YEAR 1988-89, WE ARE NOT EXAMINING THESE CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER. 6. IN THE RESULT, THE WRIT PETITION IS ALLOWED AND TH E PROCEEDINGS FOR REASSESSMENT INITIATED BY RESPONDENT NO. 2 UNDE R SECTION 148 SET ASIDE WITH COSTS WHICH ARE ASSESSED AT RS. 1,000. 3.26. IT IS PLEADED THAT IN THIS CASE ALSO THE ASSE SSEE WAS BEING HARASSED BY ITO JALANDHAR AT THE INSTANCE OF ASSESSEES SAMDHI ( FATHER OF SON-IN-LAW). THOUGH HONBLE HIGH COURT HAS NOT COMMENTED ON THIS ASPECT, IT IS NOTEWORTHY THAT A COST OF RS. ONE THOUSAND HAS BEEN IMPOSED ON THE DEPARTMENT FOR ENFORCING ILLEGAL TRANSFER OF JURISD ICTION. HONBLE COURT HAS HELD THAT UNLESS A PROPER TRANSFER ORDER IS PASSED BY THE COMPETENT AUTHORITY U/S 127, THE JURISDICTION CANNOT BE ASSUM ED BY ANOTHER OFFICER. 3.27. LD. COUNSEL THUS PLEADS THAT 148 NOTICES ISSU ED BY ACIT, NOIDA ARE BAD IN LAW AND THE ORDER OF CIT, DELHI DATED 9-3-20 04, TRANSFERRING JURISDICTION, IS ALSO BAD IN LAW AND THEY SHOULD AC CORDINGLY BE QUASHED. 4. LD. DR RELIES ON THE ORDER OF LOWER AUTHORITIES AND CONTENDS THAT THE JURISDICTION IS DEFINED IN SECTION 124, WHICH IMPLI ES THAT THE PRINCIPAL PLACE OF BUSINESS WILL DETERMINE THE JURISDICTION OF ASSE SSMENT. IN THIS CASE THE ASSESSEES PRINCIPAL PLACE OF BUSINESS WAS AT NOIDA , THEREFORE, THE CIT, NOIDA HAD JURISDICTION TO ISSUE 148 NOTICES. 25 4.1. ASSESSEE HAS OBTAINED PAN NO. FROM NOIDA ONLY AND DELIBERATELY FILED EARLIER RETURNS AT DELHI INSTEAD OF HIS CORRE CT JURISDICTION I.E. NOIDA. 4.2. THE TRANSFER OF JURISDICTION/ RECORD ARE ADMIN ISTRATIVE PROCEEDINGS AND CANNOT BE INTERPRETED IN SUCH A MANNER TO RENDER TH E ASSESSMENT PROCEEDINGS AS INVALID. RELIANCE IS PLACED ON M/S AMULYA GENERA L TRADING & AGENCIES LTD. (SUPRA). 4.3. IN ANY CASE, IF THE ASSESSEE OBJECTED TO THE JURISDICTION OF ACIT, NOIDA, AFTER ONE MONTH OF ISSUE OF NOTICE U/S 148, WHICH IS TIME BARRED AND HAS BEEN , AS RIGHTLY POINTED OUT BY THE LD. CIT(AP PEALS). FURTHER RELIANCE IS PLACED ON HONBLE PUNJAB & HARYANA HIGH COURT DECIS ION IN THE CASE OF SMT. JASWINDER KAUR KOONER VS. CIT (2007) 291 ITR 8 0, FOR THE PROPOSITION THAT ASSESSEE CAN CHALLENGE THE ISSUE OF JURISDICTI ON ONLY BY WAY OF WRIT PETITION AND NOT IN THE ASSESSMENT PROCEEDINGS AND ASSESSEE HAVING NOT RAISED THE OBJECTION AS TO JURISDICTION AT THE APPR OPRIATE TIME BEFORE AO, CANNOT BE PERMITTED TO TAKE THE ISSUE IN APPEAL. 5. IN REJOINDER, LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT LD. DR HAS SO FAR NOT BEEN ABLE TO DEMONSTRATE THE DISPUTED FA CT THAT ASSESSEE WAS ASSESSED AT DELHI AND THE DEPARTMENTAL AUTHORITIES COULD TRANSFER THE JURISDICTION AS PER LAW AND NOT AS PER THEIR WHIMS. PAN NOS. ARE ISSUED UNIVERSALLY BY NOIDA OFFICE OF THE INCOME-TAX DEPAR TMENT, SAME DOES NOT DECIDE THE LAWFUL JURISDICTION AND IN ANY CASE THE PAN NUMBER REQUIREMENT CAME MUCH LATER, THE ASSESSEE WAS BEING ASSESSED A T DELHI MUCH EARLIER, SINCE A.Y. 1996-97, WHICH FACT HAS NOT BEEN DISPUTE D. 26 5.1. LD. DR HAS NOT BEEN ABLE TO DISPUTE THE FACT T HAT WHILE PASSING THE IMPUGNED ORDER U/S 127 DATED 9-3-2004, OPPORTUNITY OF HEARING WAS NOT GIVEN TO THE ASSESSEE BY CIT, DELHI. . 5.2. THE HONBLE PUNJAB & HARYANA HIGH COURTS JUDG MENT IN THE CASE OF SMT. JASVINDER KAUR (SUPRA) IS NOT APPLICABLE AS TH E ISSUE OF JURISDICTION WAS RAISED MUCH LATER. IN THIS CASE ASSESSEE HAS BEEN OBJECTING TO JURISDICTION RIGHT FROM BEGINNING AND CIT(A) PASSED THE ORDER CO NSEQUENT TO HIGH COURTS DIRECTION IN ASSESSEES WRIT PETITION. 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. BOTH THE PARTIES HAVE ARGUED IN DETAILS ON MERITS ALSO. FIRSTLY WE WOULD LIKE TO CONSIDER TO THE VALIDITY OF 148 NOTICES AND THE ISSUE ABOUT THE LEGALITY OF THE TRANSFER OR DER U/S 127(2) DATED 9-3- 2004. 6.1. ADVERTING TO THE FIRST ISSUE, FROM THE ENTIRE RECORD AND PARTICULARLY THE LETTER FROM THE OFFICE OF THE CCIT, MEERUT ADDRESSE D BY ADDL. COMMISSIONER, HEAD QUARTERS, MEERUT DATED 3-3-2004, IT CLEARLY EMERGES THAT TILL 3-3-2004 THE ASSESSEE AND HIS WIFE HAVE B EEN FILING THEIR RETURNS REGULARLY WITH AO, DELHI AND WERE ASSESSED BY ITO D ELHI. THERE IS NO ACCUSITION IN THIS LETTER THAT THE DELHI JURISDICTI ON WAS BASED ON MISREPRESENTATION OF FACTS. THIS LETTER FURTHER CLA RIFIES THAT THE ASSESSMENT OF JURISDICTION ASSUMED BY ACIT NOIDA WAS NOT ON GOOD GROUNDS AND HE SHOULD NOT HAVE ISSUED THE NOTICE WITHOUT THE PRESC RIBED PROCEDURE OF INTER CHARGE CHANGE OF JURISDICTION BETWEEN TWO REGIONS O F INCOME TAX DEPARTMENT WITH THE ENDORSEMENT OF BOTH THE COMMISSIONERS. THI S LETTER CLINCHES THE ISSUE AND BELIES THE OBSERVATIONS OF CIT(A) THAT DE LHI AND NOIDA ARE PRACTICALLY SAME LOCALITY AND THAT THE ASSESSEE WRO NGLY GOT HIMSELF ASSESSED 27 AT DELHI. WITH THIS AUTHORITATIVE COMMUNICATION OF CIT, DELHI ON THE RECORD ISSUED TO ALL THE OFFICERS, WE ARE UNABLE TO SUSTAI N ANY FINDING OF THE AO OR LD. CIT(APPEALS). THERE CANNOT BE ANY HESITATION IN HOLDING THAT BY THE TIME 148 NOTICES WERE ISSUED BY ACIT, NOIDA, HE HAD NO J URISDICTION, WHATSOEVER ON THE ASSESSEE, THEREFORE, ALL THE NOTICES ISSUED /S 148 ARE INVALID AS PER THE PROVISIONS OF INCOME-TAX ACT. THIS GROUND OF THE A SSESSEE IS ALLOWED. 6.2. COMING TO THE ISSUE RAISED BY THE ASSESSEE THA T THE TRANSFER OF JURISDICTION ORDER U/S 127(2) IS ALSO NOT PROPER IN THE EYES OF LAW, IT IS CLEAR THAT THE CCIT, MEERUT ISSUED THE LETTER TO BOTH THE COMMISSIONERS I.E. CIT, GHAZIABAD AND CIT DELHI FOR INTER CHARGE TRANSFER O F JURISDICTION ON 3-3- 2004. THE IMPUGNED 127(4) ORDER HAS BEEN PASSED BY THE CIT, DELHI ON 9-3- 2004 I.E. WITHIN 5 DAYS. THERE IS NO REFERENCE TO A NY OPPORTUNITY OF BEING HEARD GIVEN TO THE ASSESSEE. THERE IS NEITHER ANY R EFERENCE IN THE ORDER NOR LD. DR COULD DISPUTE THIS FACT. LD. DR HAS ONLY ARG UED THAT IT IS AN ADMINISTRATIVE ORDER AND DENIAL OF OPPORTUNITY OF HEARING IS NOT APPEALABLE, THEREFORE, NO PREJUDICE IS CAUSED TO THE ASSESSEE. WE ARE UNABLE TO AGREE WITH LD. DR. STATUTORY REQUIREMENTS ARE ALWAYS MANDATORY IRRESPECTIVE OF THE FACT WHETHER THE SAME IS APPEALABLE OR NOT, THEREFORE, A NY TRANSFER ORDER PASSED U/S 127(2) OF INTER CHARGE JURISDICTION , WITHOUT C OMPLYING WITH THE STATUTORY REQUIREMENT OF GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IS INVALID. 6.3. HONBLE DELHI HIGH COURTS JUDGMENT IN THE CAS E OF MELCO INDIA PVT. LTD. & OTHERS (SUPRA) IS BINDING ON US AND OBSERVAT IONS ARE TO BE FOLLOWED WITH UTMOST RESPECT. RESPECTFULLY FOLLOWING THE HON BLE DELHI HIGH COURT JUDGMENT IN THE CASE OF MELCO INDIA PVT. LTD. & OTH ERS (SUPRA), WHICH IN TURN FOLLOWED VIJAY SHANTI INVESTMENT PASSED BY THE CIT, DELHI, CANNOT BE SUSTAINED AS NO NOTICE WAS ISSUED TO THE PVT. LTD. 187 ITR (DEL), WE HOLD 28 THAT TRANSFER ORDER U/S 127 DATED 9-3-2004 ASSESSEE GIVING OPPORTUNITY OF BEING HEARD ABOUT THE TRANSFER OF JURISDICTION. IN VIEW OF THESE FACTS AND OBSERVATIONS WE HOLD THAT ORDER OF CIT, DELHI DATED 9-3-2004, TRANSFERRING JURISDICTION U/S 127(2) IS BAD IN LAW. CONSEQUENTLY 148 NOTICES, REASSESSMENT AND TRANSFER OF JURISDICTION ORDER U/S 127(2) DATED 9-3-2004 ARE QUASHED. THIS GROUND RAISED BY THE ASSESSEE IS ALSO ALLOWED. 6.4. SINCE WE HAVE HELD THAT THE NOTICES U/S 148, C ONSEQUENTIAL REASSESSMENTS AND TRANSFER ORDER U/S 127(2) TO BE BAD IN LAW, THEREFORE THERE IS NO NEED TO DECIDE MERITS OF ADDITIONS. ITA NO. 1562/DEL/11 SMT. ALKA TIWARI 7. COMING TO THE APPEAL FILED BY SMT. ALKA TIWARI, FACTS AND CIRCUMSTANCES IN THE CASE OF SMT. ALKA TIWARI ARE S IMILAR WITH THE CASE OF SHRI DEEPAK GUPTA, EXCEPT SOME DETAILS. IN THE CASE OF SMT. ALKA TIWARI ACIT NOIDAS REQUEST LETTER FOR TRANSFER OF JURISDI CTION IS DATED 22-3-2004 AND THE TRANSFER ORDER OF JURISDICTION U/S 127(2) W AS PASSED WITHIN THREE DAYS I.E. 26-3-2004. THERE MAY BE SMALL VARIATION IN THE DATE OF NOTICE U/S 148, HOWEVER, FACTS AND CIRCUMSTANCES ARE SIMILAR THAT A CIT, NOIDA ISSUED NOTICE U/S 148 PRIOR TO JURISDICTION TRANSFER. FOLLOWING O UR ORDERS IN THE CASE OF DEEPAK GUPTA (SUPRA), WE ALLOW THE APPEAL IN THE CA SE OF SMT. ALKA TIWARI ALSO QUASHING 148 NOTICE, REASSESSMENT AND 127(2) O RDER. 8. BEFORE PARTING WE MAY MENTION THAT THE ASSESSEE S OBJECTIONS ABOUT JURISDICTION BEEN IGNORED BY THE DEPARTMENTAL AUTHO RITIES WITHOUT ANY LAWFUL JUSTIFICATION. IT IS TRITE LAW THAT INDIA IS GOVERN ED BY RULE OF LAW AND INCOME- TAX ACT IS PART OF OUR SYSTEM OF RULE OF LAW. IF TH E LAW PROVIDES CLEAR STATUTE GOVERNING AN EVENTUALITY IN THAT CASE THE DEPARTMEN TAL AUTHORITIES MUST 29 RESPECTFULLY CARRY OUT THE WORDS OF THE STATUTE. TH E ASSESSEE HAS SEEN PUT TO SEEK MULTIPLE PROCEEDINGS BEFORE VARIOUS AUTHORITIE S AND HAD TO FILE WRIT PETITIONS IN HONBLE ALLAHABAD HIGH COURT. IN OUR H UMBLE OPINION, IT WOULD BE DESIRABLE THAT DEPARTMENTAL AUTHORITIES SHOULD F OLLOW THE PROVISIONS OF INCOME TAX ACT DILIGENTLY AND SHOULD NOT ADOPT A R IGID ATTITUDE AND INSTEAD OF CORRECTING THE MISTAKES, GO AHEAD ON THE BASIS O F SELF CONTRADICTORY OBSERVATIONS AND FINDINGS. ASSESSEE HAS RAISED SO MANY GRIEVANCES ON THIS ISSUE OF HARASSMENT. WE DO NOT WISH TO COMMENT ON T HEM AS HONBLE PUNJAB & HARYANA HIGH COURT HAS DONE IN THE CASE OF LD. CO L. POARAMJIT SINGH (SUPRAW) IN WHICH COST WAS IMPOSED ON THE DEPARTMEN T. WE HOPE THAT THE DEPARTMENTAL AUTHORITIES WILL TAKE PROPER NOTICE OF OUR OBSERVATIONS WHILE DEALING WITH SUCH CASES. 9. IN THE RESULT, ALL THE APPEALS FILED BY BOTH THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31-05-2012. SD/- SD/- ( T.S. KAPOOR ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31-O5-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 30