Capstone Securities Analysis Pvt. Ltd., Pune V. Deputy ssistant Commissioner of Income-tax,

ITA 177/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7745 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KARNA; MAHENDER BISHNOI
• Keywords: Transfer pricing; International transaction; Validity of assessment; Competent authority
• Section: 92C; 143(3); 115JB; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 177 /PUN/201 5 / ASSESSMENT YEAR : 20 10 - 11 CAPSTONE SECURITIES ANALYSIS PVT. LTD., 201, BUILDING NO. 4, COMMERZONE, SAMRAT ASHOK PATH, OFF AIRPORT ROAD, YERWADA, PUNE 411006 PAN : AABCV9569K ....... / APPELLANT / V S. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : S HRI RAHUL KARNA & SHRI MAHENDER BISHNOI / DATE OF HEARING : 11 - 05 - 2017 / DATE OF PRONOUNCEMENT : 09 - 0 8 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH E APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE ASSESSMENT ORDER DATED 24 - 12 - 2014 PASSED U/S. 143(3) R.W.S. 144C(13) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). THE ASSESSEE APART FROM CHALLENGING THE ADDITIONS ON MERIT HAS CHALLENGED 2 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 JURISDICTION OF ASSESSING OFFICER IN PASSING THE IMPUGNED ASSESSMENT ORDER. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS ENGAGED IN PROVIDING IN FORMATION TECHNOLOGY ENABLED SERVICE (ITES). THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 28 - 09 - 2010 DECLARING INCOME OF ` 5,21,524/ - UNDER NORMAL PROVISIONS OF THE ACT AND B OOK PROFIT OF ` 91,86,562/ - U/S. 115JB OF THE ACT. THE RETURN OF ASSESSEE WAS PROCESSED U/S. 143(1) ON 17 - 04 - 2011. ORIGINALLY, THE REGISTERED OFFICE OF THE ASSESSEE COMPANY WAS SITUATED AT MUMBAI. THE ASSESSEE SHIFTED ITS REGISTERED OFFICE FROM MUMBAI TO PUNE. THE REGISTRAR OF COMPANIES, MAHARASHTRA ISS UED CERTIFICATE OF TRANSFER OF REGISTERED OFFICE TO THE ASSESSEE ON 13 - 04 - 2011. THE ASSESSEE VIDE LETTER DATED 05 - 10 - 2012 INFORMED THE INCOME TAX OFFICER, WARD - 3(1)(3), MUMBAI REGARDING CHANGE IN ADDRESS OF THE ASSESSEE COMPANY FROM MUMBAI TO PUNE. 2.1 THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS , STATUTORY NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 26 - 08 - 2011. THE ASSESSEE HA D ENTERED INTO INTERNATIONAL TRANSACTIONS DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2010 - 11, THEREFORE, RE FERENCE U/S. 92CA(1) WAS MADE TO TRANSFER PRICING OFFICER (TPO) BY THE ASSESSING OFFICER TO DETERMINE ARMS LENGTH PRICE (ALP) OF INTERNATIONAL TRANSACTIONS WITH AES. THE TPO VIDE ORDER DATED 30 - 01 - 2014 MADE ADJUSTMENT OF ` 6,36,13,021/ - . 2.2 ON THE BASIS OF ORDER PASSED BY THE TPO , THE ASSESSING OFFICER MADE D RAFT A SSESSMENT O RDER U/S. 144C(1) OF THE ACT ON 10 - 02 - 2014. AGAINST THE SAID ORDER , THE ASSESSEE FILED OBJECTIONS BEFORE THE DISPUTE 3 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 RESOLUTION PANEL (DRP) ON 11 - 03 - 2014. THE DRP VIDE DIRECTIONS D ATED 28 - 10 - 2014 UPHELD THE FINDINGS OF TPO AND DISMISSED THE OBJECTIONS OF THE ASSESSEE. IN THE MEANTIME, THE ASSESSEE REQUESTED THE ASSESSING OFFICER, WARD - 3(1)(3), MUMBAI TO TRANSFER JURISDICTION TO PUNE AS IT IS INCONVENIENT FOR THE ASSESSEE TO PURSUE THE MATTER AT MUMBAI. THE JURISDICTION IN THE CASE OF ASSESSEE WAS PURPORTEDLY TRANSFERRED BY THE COMMISSIONER OF INCOME TAX - 3, MUMBAI ON 19 - 12 - 2014. THE ASSESSING OFFICER VIDE ORDER DATED 24 - 12 - 2014 PASSED THE FINAL ASSESSMENT ORDER MAKING ADDITIONS IN THE INCOME RETURNED BY THE ASSESSEE. AGAINST, THE AFORESAID ASSESSMENT ORDER , THE ASSESSEE IS IN APPEAL BEFORE TRIBUNAL CHALLENGING THE JURISDICTION OF INCOME TAX OFFICER - 3(1)(3), MUMBAI IN PASSING THE ASSESSMENT ORDER , AS WELL AS , ASSAILING THE ADDITIONS ON MERITS. 3. SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IMPUGNED ASSESSMENT ORDER IS INVALID AS THE SAME HAS BEEN PASSED BY THE ASSESSING OFFICER WITHOUT JURISDICTION. THE LD. AR CONTENDED THAT THE J URISDICTION OF ASSESSING OFFICER WAS TRANSFERRED FROM MUMBAI TO PUNE ON 14 - 11 - 2014. THE LD. AR REFERRED TO COMMUNICATION DATED 19 - 12 - 2014 AT PAGE 7 OF THE P APER B OOK - II. THE LD. AR POINTED THAT A PERUSAL OF THE SAID LETTER CLEARLY SHOWS THAT THE JURISDIC TION OF ASSESSING OFFICER IN THE CASE OF ASSESSEE WAS TRANSFERRED FROM MUMBAI TO PUNE IN PURSUANCE TO NOTIFICATION NOS. 50, 51, 52, AND 54 DATED 22 - 10 - 2014 IN ACCORDANCE WITH THE ORDER S OF PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, MUMBAI DATED 14 - 11 - 2014 . THE LD. AR SUBMITTED THAT A PERUSAL OF LETTER DATED 04 - 12 - 2016 (AT PAGE 10 OF PAPER BOOK - II) WRITTEN BY THE ITO, WARD - 3(1)(3), MUMBAI TO COMMISSIONER OF INCOME TAX, ITAT - II , PUNE WOULD SHOW THAT THE ASSESSING OFFICER WAS AWARE THAT THE JURISDICTION IN T HE CASE OF ASSESSEE 4 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 HAS BEEN TRANSFERRED FROM MUMBAI TO PUNE BEFORE PASSING OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER PASSED THE IMPUGNED ORDER ONLY BECAUSE PAN WAS STILL LYING WITH ITO, WARD - 3(1)(3), MUMBAI. THE LD. AR CONTENDED THAT THE PERMANENT ACCOUNT NUMBER (PAN) OF THE ASSESSEE WAS TRANSFERRED FROM WARD - 3(1)(3), MUMBAI TO CIRCLE - 3(1)(1), MUMBAI W.E.F. 18 - 12 - 2014. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR REFERRED TO INFORMATION OBTAINED FROM OFFICIAL WEBSITE OF THE DEPARTMENT PLACED ON RECORD AT PAGE 11 OF THE PAPER BOOK - II. THE LD. AR SUBMITTED THAT D UE TO THE FACT THAT THE PAN OF THE ASSESSEE WAS ALREADY TRANSFERRED FROM ITO, WARD - 3(1)(3), THE COMMUNICATION DATED 19 - 12 - 2014 FROM THE OFFICE OF COMMISSIONER OF INCOME TAX - 3, MUMBAI AT PAGE 7 O F THE PAPER BOOK WAS NEVER COMMUNICATED TO THE ITO, WARD - 3(1)(3). THE LD. AR REFERRED TO THE LIST OF OFFICERS/OFFICIALS TO WHOM THE COPY OF SAID COMMUNICATION WAS SENT. THE LD. AR POINTED THAT THE COPY OF THE COMMUNICATION INDICATING CHANGE IN JURISDICTI ON WAS SENT TO DCIT - 3(1)(1) AND 3(1)(2), MUMBAI AND ITO 3(3)(3), MUMBAI BUT NOT TO ITO 3(1)(3). ONCE, THE ORDER FOR CHANGE IN JURISDICTION HAS BEEN PASSED BY THE COMMISSIONER OF INCOME TAX , THE ITO - 3(1)(3), MUMBAI CEASE S TO HAVE JURISDICTION OVER THE CASE FILE OF THE ASSESSEE. THE ASSESSING OFFICER CANNOT TAKE PLEA THAT HE WAS NOT INFORMED ABOUT THE CHANGE OF JURISDICTION. 3.1 THE LD. AR FURTHER CONTENDED THAT THE ASSESSEE COULD NOT RAISE OBJECTION WITH RESPECT TO JURISDICTION OF ASSESSING OFFICER BEFORE THE DRP, AS THE JURISDICTION WAS TRANSFERRED AFTER THE DRP HAS PASSED DIRECTIONS ON 28 - 10 - 2014. HENCE, THE OBJECTION IS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. THE LD. AR SUBMITTED THAT SINCE, THE IMPUGNED ORDER HAS BEEN PASSED WITH OUT JURISDICTION , THE SAME IS NULL AND INVALID. IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE 5 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. BHARATKUMAR MODI REPORTED AS 246 ITR 693 . 3.2 THE LD. A R FURTHER CONTENDED THAT WHERE THE JURISDICTION HAS BEEN TRANSFERRED U/S. 127 OF THE ACT , THE JURISDICTION RELATES TO PROCEEDINGS PAST, PRESENT AND FUTURE IN RESPECT OF A PERSON WHOSE NAME IN SPECIFIE D IN THE ORDER OR DIRECTIONS ISSUED U/S. 127 OF THE ACT. TO SUPPORT HIS CONTENTIONS THE LD. AR PLACED RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SAHARA INDIA FINANCIAL CORPORATION LTD. REPORTED AS 294 ITR 363. 4. AU CONTRAIRE SHRI RAHUL KARNA REPRESENTING THE DEPARTMENT SUBMITTED AT THE OUTSET THAT THE TRIBUNAL IS NOT COMPETENT TO ENTERTAIN THE PRESENT APPEAL AND ADJUDICATE THE ISSUE RELATING TO JURISDICTION OF ASSESSING OFFICER WHEN THE ISSUE HAS NOT BEEN AGITATED BEFORE THE ASSESSING OFFICER BY THE ASSESSEE . IN SUPPORT OF HIS CONTENTIONS THE LD. DR PLACED RELIANCE ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALL INDIA CHILDREN CARE & EDUCATIONAL DEVELOPMENT SOCIETY REPORTED AS 357 ITR 134. 4 .1 THE LD. DR FURTHER SUBMITTED THAT IN THE PRESENT CASE , THE JURISDICTION OF ASSESSING OFFICER WAS TRANSFERRED AFTER PASSING OF THE ASSESSMENT ORDER. THE BENCHES OF THE TRIBUNAL ASSUME JURISDICTION DEPENDING ON THE LOCATION OF OFFICE OF ASSESSING OFFICER . IN THE INSTANT CASE, THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER LOCATED AT MUMBAI, THE PUNE BENCHES OF THE TRIBUNAL DO ES NOT HAVE JURISDICTION TO ENTERTAIN THE APPEAL OF THE ASSESSEE. IN SUPPORT OF HIS SUBMISSIONS, THE LD. DR PLACED RELIANCE ON THE DECISION OF LUCKNOW 6 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 BENCH OF THE TRIBUNAL IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX VS. SMT. LATA JAIN REPORTED AS 56 SOT 102. THE LD. DR SUBMITTED THAT IN THE PRESENT CASE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAD TRANSFERRE D THE JURISDICTION U/S. 120 OF THE ACT AND NOT U/S. 127 . THE LD. DR REFERRED TO THE LETTER DATED 03 - 05 - 2016 AT PAGE 13 OF THE P APER B OOK - II, WHEREIN THE ITO 3(1)(3), MUMBAI HAD CLARIFIED THAT SECTION 127 WAS WRONGLY MENTIONED IN THE PREVIOUS LETTER . IN FACT THE ORDER REGARDING CHANGE IN JURISDICTION WAS PASSED IN THE CASE OF ASSESSEE U/S. 120 OF THE ACT. THE LD. DR FURTHER SUBMITTED THAT NORMALLY EFFECTIVE DATE OF TRANSFER IS MENTIONED IN THE LETTER WHERE THE JURISDICTION IS TRANSFERRED. HOWEVER, IN C ERTAIN CASES EFFECTIVE DATE IS NOT MENTIONED IN THE ORDER OF TRANSFER OF JURISDICTION TO ENABLE THE ITO TO PERFORM HIS STATUTORY DUTIES WHICH MAY BECOME TIME BARRED IF JURISDICTION IS TRANSFERRED IN BETWEEN . IN THE PRESENT CASE , THE ASSESSMENT PROCEEDINGS WERE AT FAG END WHEN THE JURISDICTION WAS TO BE TRANSFERRED. THE TPO HAD ALREADY PASSED ORDER U/S. 92C OF THE ACT. THE DRAFT ASSESSMENT ORDER WAS MADE, THE DRP HAD PASSED THE DIRECTIONS AND THE PROCEEDING BEFORE ASSESSING OFFICER HAD CONCLUDED. IF IN BETWEEN THE JURISDICTION WOULD HAVE BEEN TRANSFERRED , THE ASSESSMENT WOULD HAVE BECOME TIME BARRED AFTER 31 - 12 - 2014. THEREFORE, NO EFFECTIVE DATE WAS MENTIONED IN THE ORDER TRANSFERRING THE JURISDICTION. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER ON 24 - 12 - 2014 AND IT WAS THEREAFTER THAT THE JURISDICTION OF THE CASE WAS TRANSFERRED TO ITO AT PUNE. 4.2 REFERRING TO INFORMATION OBTAINED BY ASSESSEE FROM OFFICIAL WEBSITE OF THE DEPARTMENT AT PAGE 11 OF THE PAPER BOOK - II, THE LD. DR POINTED THAT TRANS FER OF PAN WITHIN RANGE DOES NOT MEAN THAT THE JURISDICTION OF ASSESSING OFFICER IS TRANSFERRED. IN THE INCOME TAX 7 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 DEPARTMENT THE OFFICERS HAVE CONCURRENT JURISDICTION OVER THE CASE IN A PARTICULAR C IRCLE. THE LD. DR REFERRED TO THE ORDER OF PRINCIPAL CO MMISSIONER OF INCOME TAX, MUMBAI DATED 15 - 11 - 2014 (REF. NO. CIT - 3/RESTRUCTURING - 2014/JURISDICTION/2014 - 15) TO SHOW THAT THE ITO IN THE CASE OF ASSESSEE HAD JURISDICTION OVER THE CASE OF ASSESSEE ON THE DATE OF PASSING OF THE ASSESSMENT ORDER. THE LD. DR F URTHER REFERR ING TO THE PROVISIONS OF SECTION 124(5) OF THE ACT CONTENDED THAT EVERY ASSESSING OFFICER SHALL HAVE ALL THE POWERS UNDER THE ACT IN RESPECT OF THE INCOME ACCRUING OR ARISING OR RECEIV ED WITHIN THE AREA, IF ANY , OVER WHICH HE HAS BEEN VESTED W ITH JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDER ISSUED UNDER SUB - SECTION (1) OR (2) OF SECTION 120 OF THE ACT. 4. 3 THE LD. DR ASSERTED THAT THE ASSESSEE HAD NOT FILED ANY OBJECTION BEFORE THE ASSESSING OFFICER QUESTIONING HIS JURISDICTION OVER THE CASE FILE OF ASSESSEE. FURTHER, THE ASSESSEE HAD NOT FILED ANY OBJECTION BEFORE THE CONCERNED PRINCIPAL COMMISSIONER OF INCOME TAX OR COMMISSIONER OF INCOME TAX AFTER HAVING COM E TO KNOW THAT THE JURISDICTION OF THE ASSESSING OFFICER HAS BEEN TRANSFERRED. TH E LD. DR CONTENDED THAT ASSUMING BUT NOT ADMITTING THAT EVEN IF THE ORDER OF TRANSFER OF JURISDICTION WAS PASSED PRIOR TO THE PASSING OF THE ASSESSMENT ORDER , THE SAME WAS NOT COMMUNICATED TO THE ASSESSING OFFICER TILL THE PASSING OF THE ASSESSMENT ORDER. THEREFORE, THE ASSESSING OFFICER WAS NOT AWARE OF ANY SUCH ORDER OF TRANSFER OF JURISDICTION. THUS, THE ASSESSING OFFICER WAS JUSTIFIED IN PASSING THE ASSESSMENT ORDER. 5. THE LD. DR C ONTROVERTING THE CONTENTIONS OF THE ASSESSEE THAT THE ORDER TRANSFERRING THE JURISDICTION IN THE CASE OF ASSESSEE WAS PASSED ON 14 - 11 - 2014 SUBMITTED THAT THE ORDER NO. MUM/PR. CCIT / ADMN / 8 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 CADRE RESTRUCTURING/2014 - 15 DATED 14 - 11 - 2014 WAS WITH RESPECT TO ALLOCATION OF POST S AS PER C ADRE R ESTRU CTURING P LAN ISSUED BY THE DIRECTORATE OF INCOME TAX, ( HRD ) . THE LD. DR PLACED ON RECORD A COPY OF THE ORDER DATED 14 - 11 - 2014. 6. REBUTTING THE SUBMISSIONS MADE ON BEHALF OF THE DEPARTMENT , THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS BEEN DEFINED IN SECTION 2 (7)(A ) OF THE ACT. A PERUSAL OF DEFINITION OF ASSESSING OFFICER WOULD MAKE IT CLEAR THAT THE ASSESSING OFFICER MEANS THE OFFICER WHO IS VESTED WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED U/S. 120(1) OR (2) OR ANY OTHER PROVISIONS OF THE ACT. THUS, THE ASSESSMENT ORDER CAN BE PASSED BY THE OFFICER WHO IS VESTED WITH THE JURISDICTION TO PASS THE ASSESSMENT ORDER AND NOT ANY OTHER OFFICER OF THE DEPARTMENT , WHO IS NOT HAVING JURISDICTION OVER THE CASE FILE. THE LD. AR CONTENDED THAT A PERUSAL OF LETTER DATED 19 - 12 - 2014 AT PAGE 7 OF THE P APER B OOK - II CLEARLY SHOWS THAT THE JURISDICTION IN THE CASE OF ASSESSEE WAS TRANSFERRED PRIOR TO THE DATE OF PASSING OF THE ASSESSMENT ORDER. 6.1 THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE COULD N OT RAISE OBJECTION REGARDING LACK OF JURISDICTION OF THE ASSESSING OFFICER IN PASSING THE ASSESSMENT ORDER, AS BY THE TIME THE ASSESSEE RECEIVED THE LETTER INFORMING ABOUT THE CHANGE IN JURISDICTION , THE ASSESSING OFFICER HAD ALREADY PASSED THE ASSESSMENT ORDER ON 24 - 12 - 2014. THUS, THERE WAS NO OCCASION FOR THE ASSESSEE TO RAISE OBJECTION WITH REGARD TO LACK OF JURISDICTION BEFORE THE ASSESSING OFFICER . THE LD. AR FURTHER SUBMITTED THAT A PERUSAL OF SUB - SECTION (6) TO SECTION 120 OF THE ACT SHOWS THAT SEC TION 120 OVERRIDES THE PROVISIONS OF SECTION 124 OF THE ACT. 9 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 6.2 THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER CEASES TO HAVE JURISDICTION OVER ASSESSEE, AS SOON AS COMMISSIONER OF INCOME TAX PASSES THE ORDER REGARDING CHANGE OF JURISDICTION. SHIFTING OF PAN AND HANDING OVER OF FILES FROM EXISTING ASSESSING OFFICER TO NEW ASSESSING OFFICER IS CONSEQUENTIAL TO CHANGE OF JURISDICTION. THE PAN FOLLOWS THE JURISDICTION. TO SUBSTANTIATE HIS CONTENTIONS, THE LD. AR PLACED RELIANCE ON THE LETTER OF DIRECTOR OF INCOME TAX (SYSTEMS) DATED 16 - 09 - 2014. TO FURTHER FORTIFY HIS POINT THE LD. AR DRAWS SUPPORT FROM FOLLOWING DECISIONS : I . FIAT INDIA AUTOMOBILES LTD. VS. VIRENDRA SINGH, ASSTT. COMMISSIONER OF INCOME TAX, 254 CTR 345 (BOM); II . CHANAKYA FINVEST (P.) LTD. VS. ITO, 34 TAXMANN.COM 206 (KOLKATA - TRIB.). THE LD. AR VEHEMENTLY PRAYED FOR SETTING ASIDE THE ASSESSMENT ORDER BEING NULL AND VOID AND ALLOWING THE APPEAL OF THE ASSESSEE ON THE GROUND OF JURISDICTION ALONE. 7. W E HAVE HEARD EXTENSIVE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . WE HAVE ALSO CONSIDERED VARIOUS DOCUMENTS AND DECISIONS RELIED ON BY BOTH THE SIDES. THE ASSESSEE IN APPEAL HAS ASSAILED THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 144C(13) OF THE ACT ON THE GROUND OF JURISDICTION , AS WELL AS , ON MERITS. WHILE MAKING SUBMISSIONS THE LD. AR OF ASSESSEE HAS CONFINED HIS ARGUMENTS IN CHALLENGING THE JURISDICTION OF ASSESSING OFFICER TO PASS THE IMPUGNED ASSESSMENT ORDER ALONE . 10 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 8. THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSMENT ORDER HAS BEEN PASSED AFTER THE JURISDICTION OF ASSESSING OFFICER WAS TRANSFERRED BY THE COMPETENT AUTHORITY FROM MUMBAI TO PUNE. THE ASSESSE E HAD ORIGINALLY FILED ITS RETURN OF INCOME AT MUMBAI. AFTER SHIFTING OF ITS REGISTERED OFFICE FROM MUMBAI TO PUNE, THE ASSESSEE SOUGHT TRANSFER OF JURISDICTION OF ASSESSING OFFICER FROM MUMBAI TO PUNE. 9. THE ASSESSEE HA D ENTERED INTO VARIOUS INTERNATI ONAL TRANSACTIONS DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. REFERENCE U/S. 92CA WAS MADE TO TPO BY THE ASSESSING OFFICER. ON THE BASIS OF ORDER PASSED BY TPO , THE ASSESSING OFFICER PASSED D RAFT A SSESSMENT O RDER ON 10 - 02 - 2014. THE A S SESSEE FILED OBJECTIONS BEFORE THE DRP. THE OBJECTIONS OF THE ASSESSEE WERE DISPOSE D OF BY DRP VIDE DIRECTIONS DATED 28 - 10 - 2014. THE IMPUGNED FINAL A SSESSMENT O RDER IN THE CASE OF ASSESSEE WAS PASSED ON 24 - 12 - 2014. THE CONTENTION OF THE ASSESSEE IS THA T THE JURISDICTION OF ASSESSING OFFICER IN THE CASE OF ASSESSEE WAS CHANGED BY PR. CHIEF COMMISSIONER OF INCOME TAX, MUMBAI FROM MUMBAI TO PUNE ON 14 - 11 - 2014. IN PURSUANCE TO THE ORDER OF PR. CHIEF COMMISSIONER OF INCOME TAX , THE COMMISSIONER OF INCOME TA X - 3, MUMBAI VIDE ORDER DATED 19 - 12 - 2014 TRANSFERRED THE JURISDICTION OF ASSESSEE FROM MUMBAI TO PUNE. THE LD. DR HAS PLACED ON RECORD A COPY OF THE ORDER DATED 14 - 11 - 2014 PASSED BY PR. CHIEF COMMISSIONER OF INCOME TAX, MUMBAI . A PERUSAL OF THE ORDER S HOWS THAT THAT THE SAID ORDER RELATES TO ALLOCATION OF POSTS AS PER CADRE RESTRUCTURING PLAN ISSUED BY THE DIRECTORATE OF INCOME TAX, (HRD) . IT DOES NOT PERTAIN TO TRANSFER OF JURISDICTION OF ASSESSING OFFICER IN THE CASE OF ASSESSEE. 11 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 THE LD. AR HAS FURTHER CONTENDED THAT JURISDICTION AND PAN OF THE ASSESSEE WAS TRANSFERRED ON 18 - 12 - 2014 TO CIRCLE 3(1)(3) I.E. BEFORE PASSING OF ASSESSMENT ORDER BY ITO, WARD - 3(1)(3), MUMBAI . THUS, ON THE DATE OF PASSING OF THE ASSESSMENT ORDER THE ITO, WARD - 3(1)(3), M UMBAI HAD NO JURISDICTION OVER THE CASE FILE OF THE ASSESSEE. 10. BOTH THE SIDES HAVE PLACED RELIANCE ON JURISDICTION HISTORY DETAILS DRAWN FROM OFFICIAL WEBSITE OF THE DEPARTMENT AND PLACED ON RECORD AT PAGE 11 OF THE PAPER BOOK - II FILED BY THE ASSESSEE. THE RELEVANT EXTRACT OF SAME IS REPRODUCED HERE - IN - BELOW : JURISDICTION HISTORY DETAILS S. NO. PAN TRANSFER FROM TRANSFER TO TRANSFER ORDER NO. TRANSFER DATE 1 AABCV9569K CIRCLE 3(1)(1), MUMBAI CIRCLE 1(1), PUNE 104002957102 29/DEC/2014 2 AABCV9569K WARD 3(1)( 3 ), MUMBAI CIRCLE 3(1)(1), MUMBAI 104002931447 18/DEC/2014 3 AABCV9569K WARD 3(1)(4), MUMBAI WARD 3(1)(3), MUMBAI 104000647839 26/FEB/2009 4 AABCV9569K OLD WD 15(1) - 3 MUMBAI WARD 3(1)(4), MUMBAI 10200069694 18/JUN/2008 A PERUSAL OF THE ABOVE CHART SHOWS THAT BEFORE THE DATE OF PASSING OF THE IMPUGNED ORDER PAN OF ASSESSEE WAS TRANSFERRED FROM WARD 3(1)(3), MUMBAI TO CIRCLE 3(1)(3), MUMBAI ON 18 - 12 - 2014. THEREAFTER, PAN OF ASSESSEE WAS TRANSFERRED FROM CIRCLE 3(1)(1), MU MBAI TO CIRCLE 1(1), PUNE ON 29 - 12 - 2014. THE STAND OF THE DEPARTMENT IS THAT JURISDICTION OF THE ASSESSING OFFICER CHANGES WHEN PAN IS TRANSFERRED. WE DO NOT AGREE WITH THIS PROPOSITION OF THE LD. DR. THE JURISDICTION IS TRANSFERRED WHEN THE 12 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 ORDER IS PASSED BY THE COMPETENT AUTHORITY TO TRANSFER JURISDICTION. THEREAFTER, STEPS ARE TAKEN TO TRANSFER PAN AND FILES. THERE WOULD ALWAYS BE SOME TIME GAP BETWEEN THE ORDER OF TRANSFER OF JURISDICTION AND CONSEQUENT EVENTS VIZ. TRANSFER OF PAN AND FILES. TH E ASSESSING OFFICER CEASES TO HAVE JURISDICTION OVER ASSESSEE IMMEDIATELY AFTER ORDER TRANSFERRING JURISDICTION IS PASSED BY THE COMPETENT AUTHORITY. 11. IN THE PRESENT CASE, THE JURISDICTION IS TRANSFERRED BY COMMISSIONER OF INCOME TAX - 3, MUMBAI ON 19 - 12 - 2014. THE COPY OF ORDER TRANSFERRING JURISDICTION WAS SENT TO THE DCIT 3(1)(1), MUMBAI AND TO OTHER CONCERNED OFFICIALS BUT NOT TO ITO 3(1)(3) WHO PASSED ASSESSMENT ORDER IN THE CASE OF ASSESSEE. IF THE INFORMATION GIVEN IN JURISDICTION HISTORY DETAILS AVAILABLE ON OFFICIAL WEBSITE OF THE DEPARTMENT IS CO - RELATED WITH THE ORDER OF COMMISSIONER OF INCOME TAX - 3, MUMBAI, IT WOULD BE CLEARLY EVIDENT THAT EVEN ON 19 - 12 - 2014 THE ASSESSING OFFICER WHO PASSED THE ASSESSMENT ORDER HAD NO JURISDICTION OVER THE FILE OF ASSESSEE. EVEN IF IT IS PRESUMED THAT HE HAD CONCURRENT JURISDICTION, HE CEASES TO HAVE JURISDICTION AFTER PASSING OF THE ORDER BY COMMISSIONER OF IN COME TAX - 3, MUMBAI ON 19 - 12 - 2014, TRANSFERRING THE JURISDICTION FROM CIRCLE 3(1)(3), MUMBAI TO CIRCLE 1(1), PUNE. TRANSFER OF PAN ON 29 - 12 - 2014 IS CONSEQUENTIAL TO THE ORDER TRANSFERRING JURISDICTION. THE PAN FOLLOWS THE JURISDICTION. IT IS NOT THE JURI SDICTION THAT FOLLOWS THE PAN. 12. IN THE CASE OF FIAT INDIA AUTOMOBILES LIMITED VS. VIRENDRA SINGH, ASSISTANT COMMISSIONER OF INCOME TAX & ORS. (SUPRA) THE HONBLE JURISDICTIONAL HIGH COURT OBSERVED THAT , ONCE THE JURISDICTION TO ASSESS THE PETITIONER WA S TRANSFERRED BY THE CIT 10 MUMBAI VIDE ORDER DATED 22 - 11 - 2011 FROM ACIT 10(1) MUMBAI TO DCIT CIRCLE 1(2) PUNE , THE 13 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 ACIT 10(1) MUMBAI HAVE NO POWER TO ASSESS OR REASSESS THE PETITIONER. THUS, FROM THE OBSERVATIONS OF HONBLE HIGH COURT IT CAN BE SAFELY CONSTRUED THAT THE EFFECTIVE DATE OF TRANSFER OF JURISDICTION IS THE DATE OF ORDER PASSED BY COMMISSIONER OF INCOME TAX AND NOT THE TRANSFER OF PAN. 13 . IT IS A FUNDAMENTAL PRINCIPLE ACKNOWLEDGED BY HONBLE APEX COURT THAT ANY ORDER OR DECREE PASSED BY ANY COURT OR QUASI JUDICIAL AUTHORITY WITHOUT JURISDICTION IS A NULLITY. A DEFECT OF JURISDICTION, WHETHER IT IS PECUNIARY OR TERRITORIAL STRIKES AT THE VERY AUTHORITY OF COURT PASSING SUCH ORDER. THE DEFECT IN JURISDICTION IS AN INCURABLE DEFECT WHICH CANNOT BE CURED BY CONSENT OF BOTH THE PARTIES TO LIS. IN THE PRESENT CASE THE EFFECTIVE DATE OF TRANSFER OF JURISDICTION IS 19 - 12 - 2014 I.E. THE DATE OF ORDER BY COMMISSIONER OF INCOME TAX - 3, MUMBAI TRANSFERRING THE JURISDICTION. THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AT MUMBAI ON 24 - 12 - 2014 I.E. AFTER THE DATE OF TRANSFER OF JURISDICTION , HENCE IT SUFFERS FROM LACK OF JURISDICTION AND HENCE , IS NULL AND VOID. 14. THE LD. DR HAS RAISED OBJECTION THAT THE TRIBUNAL CANNOT ADJUDICATE UPON JURISDICTION OF ASSESSING OFFICER WHEN IT IS NOT RAISED BEFORE ASSESSING OFFICER. RELIANCE WAS PLACED ON THE DECISION RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALL INDIA CHILDREN CARE & EDUCATIONAL DEVELOPMENT SOCIETY (SUPRA). WE FIND THAT THE AFORESAID DECISION WAS RENDERED BY THE HONBLE HIGH COURT WHERE THE JURISDICTION ISSUE WAS RAISED U/S. 124 OF THE ACT. IN THE PRESENT CASE THE JURISDICT ION OF ASSESSING OFFICER WAS TRANSFERRED UNDER THE PROVISIONS OF SECTION 127 R.W.S. 120 OF THE ACT. FURTHER, THE FACTS IN THE PRESENT CASE ARE ENTIRELY DIFFERENT. THUS, THE DECISION RENDERED IN THE AFORESAID CASE 14 ITA NO . 177/PUN/2015, A.Y. 2010 - 11 WOULD NOT APPLY IN THE FACTS OF PRESENT C ASE. AS SUCH, THE OBJECTION OF THE LD. DR IS UNSUSTAINABLE AND IS THEREFORE, REJECTED. THE OTHER DECISIONS ON WHICH THE LD. DR HAS PLACED RELIANCE ARE ALSO DISTINGUISHABLE. ALL THE CASES LAWS CITED BY THE LD. DR ARE IN RESPECT OF JURISDICTION OF ASSES SING OFFICER U/S. 124 OF THE ACT AND THUS DOES NOT APPLY IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 15. IN VIEW OF THE REASONS GIVEN ABOVE THE IMPUGNED ORDER IS HELD TO BE NULL AND VOID AS IT SUFFERS FROM LACK OF JURISDICTION AND THE APPEAL OF ASSESSEE IS ALLOWED. 16 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 09 TH DAY OF AUGUST, 201 7 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 09 TH AUGUST, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. DISPUTE RESOLUTION PANEL III, MUMBAI 4. THE CIT/DIT CONCERNED 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE