Sh. Deepak Gupta, Ghaziabad V. DCIT, Noida

ITA 3326/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65986 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-08-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 23-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR PRABHA KANT
• Assessee Lawyers: T R TALWAR S
• Keywords: Unexplained investment; Unexplained expenditure; Income from undisclosed sources; Opportunity of being heard; Reassessment proceedings
• Section: 147; 148; 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.3326/DEL/2011 ASSESSMENT YEAR : 2002-03 DEEPAK GUPTA, 6/110, SECTOR-2, RAJENDRA NAGAR, SAHIBABAD, GHAZIABAD. PAN : AGSPG4546M VS. DCIT, CIRCLE, NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SALIL AGARWAL & SHRI T.R. TALWAR, ADVOCATES REVENUE BY : DR. PRABHA KANT, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2002-03 AGAINST THE ORDER DATED 24.3.2011 PASSED BY THE CIT (A), MUZA FFARNAGAR. THE FOLLOWING EFFECTIVE GROUNDS HAVE BEEN RAISED BY THE A SSESSEE:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS BY UPHOLDI NG THE ORDER OF ASSESSMENT FRAMED UNDER SECTION 147/144 OF TH E IT ACT BY FAILING TO APPRECIATE THAT THE PRE-CONDITIONS FOR INV OCATION OF PROCEEDINGS UNDER SECTION 147 OF THE IT ACT WERE NOT SA TISFIED AND AS SUCH, ASSESSMENT SO FRAMED WAS WHOLLY UNTENABL E IN LAW AND IS THUS BEYOND JURISDICTION. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN COMING TO A CONCLUSI ON THAT ASSESSEES JURISDICTION FALLS WITH ACIT, NOIDA RELYI NG ON HIS OWN ORDER FOR A.Y. 1996-97. IN DOING SO, THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) OVERLOOKED THE FACT THAT THE ORDER PASSED ITA NO.3326/DEL/2011 2 UNDER SECTION 127 OF THE IT ACT BY CIT DELHI DATED 09. 03.2004 WAS IN COMPLETE VIOLATION OF THE PROVISIONS OF THE IT A CT. AS NO REASONABLE OPPORTUNITY WAS PROVIDED TO THE ASSESSEE BEF ORE TRANSFER OF JURISDICTION FROM DELHI TO NOIDA. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AN ADDITIO N OF RS.33,90,038/- BEING CASH DEPOSITS IN BANK ACCOUNT O F MS BHAWANA MAKHIJANI, AS ALLEGED UNACCOUNTED INCOME OF THE APPELLANT. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AN ADDITIO N OF A SUM OF RS.21,21,300 OUT OF RS.21,97,400/- ON ACCOUNT OF ALLEGED INVESTMENT IN PROPERTY NO.E-58, SECTOR 39, NOIDA. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING THE ADDITI ON OF A SUM OF RS.13,75,000/- ON ACCOUNT OF ALLEGED UNEXPLAI NED INVESTMENT IN BANK ACCOUNT OF SH. NARPAT SINGH. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION O F RS.4,14,000/- OUR OF 19,54,000/- ON ACCOUNT OF ALLEG ED UNEXPLAINED INVESTMENT IN HOUSE NO.6/111, SECTOR 2, R AJINDER NAGAR, SAHIBABAD, IN THE NAME OF ASSESSEES MINOR SO N MASTER SUNNY GUPTA. 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING THE ADDITIO N OF RS.59,01,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED INV ESTMENTS FOR THE AMOUNTS DEPOSITED IN THE BANK ACCOUNTS OF M/S VI JAY RAJESHWARI EXPORTS PVT. LTD. 8. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AN ADDITIO N OF RS.11,55,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED INV ESTMENT MADE IN THE BANK ACCOUNT OF M/S XANADU EXPORTS, A 100% EOU IN NOIDA. 9. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING IN ADDITIO N OF RS.9,24,000/- ON ACCOUNT OF UNEXPLAINED EXPENDITURE B EING ALLEGED PAYMENT OF RENT. 10. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AN ADDITIO N OF RS.42,77,467/- ON ACCOUNT OF CASH DEPOSITS IN ASSESSE ES OWN BANK ACCOUNT. ITA NO.3326/DEL/2011 3 2. APROPOS GROUND NOS.1 &2, THE FACTS ARE THAT NOTICE U/S 148 OF THE IT ACT WAS ISSUED TO THE ASSESSEE ON 6.3.07 BY THE DCIT, CIRCLE, NOIDA. IN THE REASSESSMENT PROCEEDINGS, THE ASSESSEE CHALLENGED THE JURISDICTION OF THE DCIT, CIRCLE, NOIDA, CONTENDING THAT HE HAD ALL THROUGH BEEN ASSESSED IN DELHI AND HIS JURISDICTION TO BE ASSESSED FELL IN DELHI, RATHER THAN AT NOIDA. 3. THE ASSESSING OFFICER, HOWEVER, REFERRED TO AN ORDER DATED 9.3.04, PASSED U/S 127 (2) OF THE IT ACT, TRANSFERRING THE ASSESSEES CASE FROM NEW DELHI TO NOIDA. THE ASSESSING OFFICER OB SERVED THAT THE SAID ORDER WAS A VALID ORDER, SINCE THE ASSESSEE HAD NOT SUCCESSFULLY CHALLENGED THE SAME. IT WAS, THUS, HELD THAT THE JURISD ICTION OF THE ASSESSEE STOOD TRANSFERRED FROM DELHI TO NOIDA. IN THIS MA NNER, THE ASSESSEES CHALLENGE TO THE TRANSFER OF JURISDICTION WAS RE JECTED BY THE ASSESSING OFFICER. 4. BY VIRTUE OF THE IMPUGNED ORDER, THE LD CIT (A) UPHELD THE ASSESSING OFFICERS ORDER ON THIS ISSUE, FOLLOWING HIS ORDER FOR ASSESSMENT YEAR 1996-97. 5. BEFORE US, CHALLENGING THE IMPUGNED ORDER, THE LD . COUNSEL FOR THE ASSESSEE HAS ARGUED THAT THE ISSUE IS SQUARELY COVERED I N FAVOUR OF THE ASSESSEE BY THE CONSOLIDATED TRIBUNAL ORDER DATED 31 .5.12, PASSED IN THE ASSESSEES CASE FOR ASSESSMENT YEARS 1996-97 TO 2001-02 IN ITA NOS.1708 TO 1713/DEL/11 AND IN THE CASE OF SMT. ALKA TIWARI, FOR ASSESSMENT YEAR 2002-03, IN ITA NO.1562/DEL/11. COPIES O F THE SAID TRIBUNAL ORDER HAVE BEEN PLACED ON RECORD. IT HAS B EEN POINTED OUT FROM THE SAID ORDER THAT THEREIN, THE ORDER DATED 9. 3.04 (SUPRA), PASSED U/S 127 (2) OF THE IT ACT, TRANSFERRING THE ASSESSEES JUR ISDICTION FOR ASSESSMENT FROM NEW DELHI TO NOIDA, HAS BEEN HELD TO BE BAD IN LAW. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT DUE T O THIS FACT, ALL ITA NO.3326/DEL/2011 4 THE NOTICES U/S 148 OF THE ACT, WHETHER ISSUED TO THE A SSESSEE PRIOR TO THE DATE OF ISSUANCE OF THE AFORESAID ORDER PASSED U/S 12 7(2) OF THE ACT, I.E., 9.3.04, OR ISSUED SUBSEQUENTLY, ARE BAD IN L AW, REQUIRING TO BE CANCELLED, AS BY VIRTUE OF THE TRIBUNAL ORDER DATED 31.5.12, CANCELLING THE ORDER DATED 9.3.04 (SUPRA), THE JURISDICTION OF T HE ASSESSEE STILL VESTS IN NEW DELHI AND NOT AT NOIDA. 6. ON THE OTHER HAND, THE LD. DR HAS CONTENDED THAT THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE DIFFERENT FROM THOSE PRESENT BEFORE THE TRIBUNAL WHILE PASSING THE ORDER DATED 31.5.12 (SU PRA). IT HAS BEEN SUBMITTED THAT THE ORDER DATED 9.3.04, TRANSFERRING T HE ASSESSEES JURISDICTION FROM NEW DELHI TO NOIDA IS A VALID ORDER , THE SAME HAVING NOT BEEN CHALLENGED BY THE ASSESSEE. THE LD. DR HAS ARG UED THAT AS HELD IN MRS. UMA LOOMBA VS. COMMISSIONER OF INCOME-TAX 160 CTR 392 (DEL), IT IS THE ASSESSING AUTHORITY HAVING NATURAL JURISDICTION OVER THE AREA WHERE THE BUSINESS OR PROFESSION OF AN ASSESSEE IS SITUATED, WHICH WOULD HAVE JURISDICTION TO ASSESS SUCH ASSESSEE. HE H AS CONTENDED THAT IN THE PRESENT CASE, THE ASSESSEE, DURING THE YEAR UNDER CONSIDERATION, RESIDED AT GHAZIABAD AND CARRIED ON BUSINESS AT NOIDA ALSO, BESIDES DELHI, AND SO, HIS NATURAL JURISDICTI ON WAS RIGHTLY TRANSFERRED TO NOIDA. 7. THE LD. DR HAS FURTHER SUBMITTED THAT IN KEEPING W ITH SUBHASH CHANDER VS. COMMISSIONER OF INCOME TAX, ROHTAK, 166 T AXMAN 307 (P&H), IN TERMS OF SECTION 124 (3) (B) OF THE ACT, T HE JURISDICTION OF AN ASSESSING OFFICER CANNOT BE CALLED IN QUESTION BY AN ASSE SSEE AFTER EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SE RVED WITH A NOTICE UNDER SECTION 142 (1), OR AFTER COMPLETION OF ASSESSMENT, WHICHEVER IS EARLIER; AND THAT HEREIN, THE NOTICE UN DER SECTION 142 (1) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 31.10.07, WHEREA S THE ASSESSEE FOR THE FIRST TIME CHALLENGED THE ASSESSING OFFICER S ITA NO.3326/DEL/2011 5 JURISDICTION ONLY ON 14.12.07, WHICH CHALLENGE WAS NU LL AND VOID IN ACCORDANCE WITH SUBHASH CHANDER. 8. THE LD. DR HAS FURTHER AVERRED THAT AS HELD IN J .L. SINGHANIA VS. ASSISTANT COMMISSIONER OF INCOME-TAX/WEALTH TAX, 65 TAX MAN 479 (DEL), WHERE, LIKE IN THE CASE OF THE PRESENT ASSESSEE, T HE CASE IS TRANSFERRED FROM ONE ASSESSING OFFICER TO ANOTHER ON THE SAME FLOOR, IN THE SAME BUILDING AND IN THE SAME CITY, IT IS NOT NECE SSARY TO RECORD REASONS FOR ORDERING THE TRANSFER AND TO GIVE AN OPPOR TUNITY TO THE ASSESSEE, AND THAT THEREFORE, THERE WAS NO INFIRMITY IN THE TRANSFER OF THE ASSESSEES CASE FROM THE ASSESSING OFFICER AT NEW DELHI TO THE ASSESSING OFFICER AT NOIDA. 9. THE LD. DR HAS FURTHER STATED THAT IN KANJI MAL & SONS VS. COMMISSIONER OF INCOME TAX, 12 TAXMAN 34 (DEL), IT H AS BEEN LAID DOWN THAT IF THE ASSESSING OFFICER OTHERWISE HAS TERRITO RIAL JURISDICTION OVER AN ASSESSEE UNDER SECTION 124 (7) OF THE ACT, AN A SSESSMENT COMPLETED WITHOUT DECIDING THE ASSESSEES OBJECTION TO THE ASSESSING OFFICERS JURISDICTION UNDER SECTION 124 (4) WILL BE V ALID. IT HAS BEEN CONTENDED THAT IN THE PRESENT CASE, SINCE THE ASSESSING OF FICER, AT NOIDA DID HAVE TERRITORIAL JURISDICTION OVER THE ASSESSEE, COMPLE TION OF ASSESSMENT SANS DECISION ON THE ASSESSEES OBJECTION TO THE ASSESSI NG OFFICERS JURISDICTION IS NOT FATAL TO THE ASSESSMENT ORDE R, AND THAT THOUGH ONE WAS ISSUED, NO ORDER UNDER SECTION 124 OF THE ACT WAS REQUIRED. 10. THE LD. DR HAS ALSO CONTENDED THAT THE TRIBUNAL O RDER DATED 31.5.12 (SUPRA) IS NOT BINDING ON US. RELIANCE HAS BEE N SOUGHT TO BE PLACED ON COMMISSIONER OF INCOME-TAX VS. B.R. CONSTRU CTIONS, 220 ITR 200 (AP) (FB). ITA NO.3326/DEL/2011 6 11. THE LD. DR HAS THEN PLEADED THAT THE TRIBUNAL, W HILE PASSING THE ORDER DATED 31.5.12 (SUPRA), DID NOT TAKE INTO CONSID ERATION THE ABOVE CASE LAWS. 12. IN HIS COUNTER, THE LD. COUNSEL FOR THE ASSESSEE HAS SU BMITTED THAT THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE EXACTLY SIMILAR TO THE ONES PRESENT BEFORE THE TRIBUNAL WHILE PASSING THE ORDER DATED 31.5.12 (SUPRA); THAT THE FACTUM OF SUCH PARITY OF FA CTS IS ALSO EVIDENT FROM THE ORDER UNDER APPEAL, WHEREIN THE CIT (A) HA S FOLLOWED HIS ORDER FOR ASSESSMENT YEAR 1996-97, WHICH COULD NOT HAVE BEEN POSSIBLE BUT FOR THE SIMILARITY IN THE FACTS; THAT OTHERWISE TOO, T HE DEPARTMENT HAS NOT POINTED OUT ANY SINGLE FACT PRESENT FOR THE YEAR UNDER CONSIDERATION TO BE A FRESH FACT ABSENT IN THE OTHER C ASES; THAT THE CASE LAWS CITED BY THE DEPARTMENT APROPOS THE ISSUE OF JURISD ICTION ARE NOT APPLICABLE, SINCE IN THOSE CASES, THE ASSESSING OFFICERS HAD NATURAL JURISDICTION OVER THE ASSESSEES, WHEREAS IN THE CASE AT HAN D, THE ASSESSING OFFICER AT NOIDA NEVER HAD JURISDICTION OVER THE ASSESSEE, AS HELD BY THE TRIBUNAL IN ITS ORDER DATED 31.5.12 (SUPR A); AND THAT B.R. CONSTRUCTION DOES NOT AID THE CAUSE OF THE DEPARTMENT , SINCE IT IS SETTLED LAW THAT WHERE THE FACTS IN THE SUBSEQUENT YEAR ARE SIMILAR TO THE FACTS IN THE EARLIER YEAR/S, THE ORDER PASSED FOR THE EARLIER YEAR/S REQUIRES TO BE FOLLOWED. 13. WE HAVE HEARD THE PARTIES ON THE ISSUE OF JURISDICT ION, AS RAISED BY THE ASSESSEE BY WAY OF GROUNDS OF APPEAL NOS.1 AND 2. WE HAVE ALSO EXAMINED THE MATERIAL PLACED ON RECORD QUA THIS MATTER. THE SHORT QUESTION UP FOR DETERMINATION IS AS TO WHETHER TH E TRIBUNAL ORDER DATED 31.5.12 IS OR IS NOT TO BE FOLLOWED FOR THE YEA R UNDER CONSIDERATION IN THE CASE OF THE ASSESSEE. ITA NO.3326/DEL/2011 7 14. IT IS SEEN THAT THE ASSESSEE WAS ASSESSED WITH ITO, WARD 3 3 (2), NEW DELHI. THE CIT-XI, DELHI, ON 9.3.04, PASSED AN O RDER UNDER SECTION 127 (2) OF THE ACT, TRANSFERRING THE JURISDICTION OF THE ASSESSEE TO THE ACIT, NOIDA. THIS ORDER STANDS REPRODUCED AT PAGE 4 OF THE TRIBUNAL ORDER DATED 31.5.12. THE DCIT, NOIDA ISSUED TO AND SER VED ON THE ASSESSEE, A NOTICE UNDER SECTION 148 OF THE ACT, ON 6.3. 07. IT IS THIS NOTICE WHICH RESULTED IN THE ASSESSMENT ORDER DATED 28.1 2.07, WHICH IS UNDER CHALLENGE HEREIN. SIMILAR NOTICES IN THE CASES OF THE ASSESSEE, FOR ASSESSMENT YEARS 1996-97 TO 2001-02 AND IN THE CASE O F SMT. ALKA TIWARI, FOR ASSESSMENT YEAR 2002-03 (THE SAME YEAR AS TH AT PRESENTLY UNDER CONSIDERATION IN THE CASE OF THE ASSESSEE), ALONG W ITH THE TRANSFER ORDER DATED 9.3.04 (SUPRA), AS WELL AS THE RES PECTIVE RE- ASSESSMENT ORDERS, WERE HELD TO BE HAD IN LAW AND WERE QUASHED. 15. THE TRIBUNAL, IN THE ORDER DATED 31.5.07, HELD AS FOLLOWS:- 6.1. ADVERTING TO THE FIRST ISSUE, FROM THE ENTIRE REC ORD AND PARTICULARLY THE LETTER FROM THE OFFICE OF THE CCIT, MEE RUT ADDRESSED BY ADDL. COMMISSIONER, HEAD QUARTERS, MEER UT DATED 3-3-2004, IT CLEARLY EMERGES THAT TILL 3-3-2004 THE ASSESSEE AND HIS WIFE HAVE BEEN FILING THEIR RETURNS REGULARLY WITH AO, DELHI AND WERE ASSESSED BY ITO DELHI. THER E IS NO ACCUSITION IN THIS LETTER THAT THE DELHI JURISDICTION WAS BASED ON MISREPRESENTATION OF FACTS. THIS LETTER FURTHER CLARIFI ES THAT THE ASSESSMENT OF JURISDICTION ASSUMED BY ACIT NOIDA WAS NOT ON GOOD GROUNDS AND HE SHOULD NOT HAVE ISSUED THE NOTIC E WITHOUT THE PRESCRIBED PROCEDURE OF INTER CHARGE CHANGE OF JURISDICTION BETWEEN TWO REGIONS OF INCOME TAX DEPARTM ENT WITH THE ENDORSEMENT OF BOTH THE COMMISSIONERS. THIS LETTE R CLINCHES THE ISSUE AND BELIES THE OBSERVATIONS OF CIT( A) THAT DELHI AND NOIDA ARE PRACTICALLY SAME LOCALITY AND THAT THE ASSESSEE WRONGLY GOT HIMSELF ASSESSED AT DELHI. WITH THIS AUTHORITATIVE COMMUNICATION OF CIT, DELHI ON THE RECORD ISSUED TO ALL THE OFFICERS, WE ARE UNABLE TO SUSTAIN ANY FINDI NG OF THE AO OR LD. CIT(APPEALS). THERE CANNOT BE ANY HESITATIO N IN HOLDING THAT BY THE TIME 148 NOTICES WERE ISSUED BY ACI T, NOIDA, HE HAD NO JURISDICTION, WHATSOEVER ON THE ASSE SSEE, THEREFORE, ALL THE NOTICES ISSUED /S 148 ARE INVALID A S PER THE PROVISIONS OF INCOME-TAX ACT. THIS GROUND OF THE ASSE SSEE IS ALLOWED. ITA NO.3326/DEL/2011 8 6.2. COMING TO THE ISSUE RAISED BY THE ASSESSEE THAT THE TRANSFER OF JURISDICTION ORDER U/S 127(2) IS ALSO NO T 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 DE LHI FOR INTER CHARGE TRANSFER OF JURISDICTION ON 3-3-2004. TH E 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 ANY OPPORTUNITY OF BEING HEARD GIVEN TO THE ASSESSEE. THERE IS NEITHER ANY REF ERENCE IN THE ORDER NOR LD. DR COULD DISPUTE THIS FACT. LD. DR HA S ONLY ARGUED THAT IT IS AN ADMINISTRATIVE ORDER AND DENIAL OF OPPORTUNITY OF HEARING IS NOT APPEALABLE, THEREFORE, N O 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, ANY TRANSFER ORDER PASSED U/S 127(2) OF IN TER CHARGE JURISDICTION , WITHOUT COMPLYING WITH THE STATUTORY REQUI REMENT OF GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IS INVALID. 6.3. HONBLE DELHI HIGH COURTS JUDGMENT IN THE CASE OF MELCO INDIA PVT. LTD. & OTHERS (SUPRA) IS BINDING ON US AND OBSERVATIONS ARE TO BE FOLLOWED WITH UTMOST RESPECT. RESPECTFULLY FOLLOWING THE HONBLE DELHI HIGH COURT JU DGMENT IN THE CASE OF MELCO INDIA PVT. LTD. & OTHERS (SUPRA), WHI CH IN TURN FOLLOWED VIJAY SHANTI INVESTMENT PASSED BY THE CIT, DEL HI, CANNOT BE SUSTAINED AS NO NOTICE WAS ISSUED TO THE PVT. L TD. 187 ITR (DEL), WE HOLD THAT TRANSFER ORDER U/S 127 DA TED 9-3- 2004 ASSESSEE GIVING OPPORTUNITY OF BEING HEARD ABOUT THE TRANSFER OF JURISDICTION. IN VIEW OF THESE FACTS AND O BSERVATIONS WE HOLD THAT ORDER OF CIT, DELHI DATED 9-3-2004, TRANSF ERRING 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, CONSE QUENTIAL 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, FA CTS AND CIRCUMSTANCES IN THE CASE OF SMT. ALKA TIWARI ARE SIMI LAR WITH THE CASE OF SHRI DEEPAK GUPTA, EXCEPT SOME DETAILS. IN THE CASE OF SMT. ALKA TIWARI ACIT NOIDAS REQUEST LETTER F OR TRANSFER OF JURISDICTION IS DATED 22-3-2004 AND THE TRANSFER ORD ER OF JURISDICTION U/S 127(2) WAS PASSED WITHIN THREE DAYS I.E. 26-3- 2004. THERE MAY BE SMALL VARIATION IN THE DATE OF NOTI CE U/S 148, HOWEVER, FACTS AND CIRCUMSTANCES ARE SIMILAR THAT ACIT, NOIDA ISSUED NOTICE U/S 148 PRIOR TO JURISDICTION TRANS FER. FOLLOWING OUR ORDERS IN THE CASE OF DEEPAK GUPTA (SUP RA), WE ITA NO.3326/DEL/2011 9 ALLOW THE APPEAL IN THE CASE OF SMT. ALKA TIWARI ALSO QUASHING 148 NOTICE, REASSESSMENT AND 127(2) ORDER. 16. SECTION 127 OF THE ACT READS AS FOLLOWS:- POWER TO TRANSFER CASES. POWER TO TRANSFER CASES. POWER TO TRANSFER CASES. POWER TO TRANSFER CASES. 127. 127. 127. 127. (1) THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER MAY, AFTER GIVING THE ASSESSEE A REASONA BLE OPPORTUNITY OF BEING HEARD IN THE MATTER, WHEREVER IT I S POSSIBLE TO DO SO, AND AFTER RECORDING HIS REASONS FO R DOING SO, TRANSFER ANY CASE FROM ONE OR MORE ASSESSING OFFICER S SUBORDINATE TO HIM (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) TO ANY OTHER ASSESSING OFFICER OR ASSE SSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) ALSO SUBORDINATE TO HIM. (2) WHERE THE ASSESSING OFFICER OR ASSESSING OFFICER S FROM WHOM THE CASE IS TO BE TRANSFERRED AND THE ASSESSING OF FICER OR ASSESSING OFFICERS TO WHOM THE CASE IS TO BE TRANSFERR ED ARE NOT SUBORDINATE TO THE SAME DIRECTOR GENERAL OR 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 JURIS DICTION THE CASE IS TO BE TRANSFERRED MAY, AFTER GIVING THE ASS ESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER, W HEREVER IT IS POSSIBLE TO DO SO, AND AFTER RECORDING HIS REASO NS FOR DOING SO, PASS THE ORDER; ( B ) WHERE THE DIRECTORS GENERAL OR CHIEF COMMISSIONERS OR COMMISSIONERS AFORESAID ARE NOT IN AGREEMENT, THE ORDE R TRANSFERRING 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 O FFICIAL GAZETTE, AUTHORISE IN THIS BEHALF. (3) NOTHING IN SUB-SECTION (1) OR SUB-SECTION (2) SH ALL BE DEEMED TO REQUIRE ANY SUCH OPPORTUNITY TO BE GIVEN WHER E THE TRANSFER IS FROM ANY ASSESSING OFFICER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) TO ANY OTHER ASSESSING OFFICER OR ASSESSING OFFICERS (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) AND THE OFFICES OF ALL SUCH OFFICERS ARE SITUATED IN THE SAME CITY, LOCALITY OR PLACE. ITA NO.3326/DEL/2011 10 (4) THE TRANSFER OF A CASE UNDER SUB-SECTION (1) OR S UB-SECTION (2) MAY BE MADE AT ANY STAGE OF THE PROCEEDINGS, AND S HALL NOT RENDER NECESSARY THE RE-ISSUE OF ANY NOTICE ALREADY I SSUED BY THE ASSESSING OFFICER OR ASSESSING OFFICERS FROM WHO M 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 PROCEEDING S UNDER THIS ACT IN RESPECT OF ANY YEAR WHICH MAY BE PENDING O N THE DATE OF SUCH ORDER OR DIRECTION OR WHICH MAY HAVE BE EN COMPLETED ON OR BEFORE SUCH DATE, AND INCLUDES ALSO ALL PROCEEDINGS UNDER THIS ACT WHICH MAY BE COMMENCED AFTE R THE DATE OF SUCH ORDER OR DIRECTION IN RESPECT OF ANY YEAR . 17. THUS, SECTION 127 OF THE ACT, IN BOTH THE SITUATI ONS ENVISAGED THEREIN, REQUIRES THE GRANT OF OPPORTUNITY OF HEARIN G TO THE ASSESSEE BEFORE PASSING OF AN ORDER OF TRANSFER OF JURISDICTION. 18. THE TRIBUNAL, IT IS SEEN, HELD, INTER ALIA, THAT THE ORDER DATED 9.3.04, PASSED UNDER SECTION 127 (4) OF THE ACT, TRAN SFERRING THE JURISDICTION OF THE ASSESSEE FROM NEW DELHI TO NOIDA DID NOT CONTAIN ANY REFERENCE OF ANY OPPORTUNITY OF HEARING HAVING BEEN GRANTED TO THE ASSESSEE BEFORE THE PASSING THEREOF. THE TRIBUNAL FU RTHER OBSERVED THAT THE DEPARTMENT ALSO REMAINED UNABLE TO REFUTE THE FACTUM OF SUCH NON-GRANT OF OPPORTUNITY TO THE ASSESSEE, AND THAT IT WAS ARGUED ON BEHALF OF THE DEPARTMENT MERELY THAT T HE ORDER DATED 9.3.04 WAS AN ADMINISTRATIVE ORDER, QUA WHICH, THE ISSU E OF DENIAL OF OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE PASSING THE REOF WAS NOT AN APPEALABLE ISSUE. THE TRIBUNAL REFUSED TO BE AT ON E WITH THIS ARGUMENT OF THE DEPARTMENT, ON THE BASIS OF THEIR REA SONING THAT STATUTORY REQUIREMENTS ARE ALWAYS MANDATORY. THE TRIB UNAL HELD THE ORDER DATED 9.3.04 TO BE HAD IN LAW FOR WANT OF COM PLIANCE OF THE STATUTORY MANDATE OF GRANT OF OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE THE PASSING OF THAT ORDER. THE NOTICES ISSUED TO THE ASSESSEE UNDER SECTION 148 OF THE ACT BY THE ASSESSING OFFICER AT NOIDA AND THE ITA NO.3326/DEL/2011 11 ASSESSMENT ORDERS FRAMED BY HIM WERE ALSO CONSEQUENTLY HEL D BY THE TRIBUNAL TO BE BAD IN LAW AND WERE QUASHED. 19. SIMILAR WAS THE FATE OF THE APPEAL FILED BEFORE THE TRIBUNAL BY SMT. ALKA TIWARI, FOR ASSESSMENT YEAR 2002-03, HER FAC TS BEING, MUTATIS MUTANDIS, IN PARI MATERIA WITH THOSE OF THE ASSE SSEE. 20. UNDISPUTEDLY, IN THE CASE AT HAND TOO, IT REMAINS THE VERY SAME ORDER DATED 9.3.04, WHICH IS THE GENESIS OF THE BONE O F CONTENTION BETWEEN THE PARTIES. IT IS ONLY PURSUANT TO THIS ORDER TRANSFERRING THE JURISDICTION OF THE ASSESSEE TO THE ASSESSING OFFICER AT NOI DA FROM THE ASSESSING OFFICER AT NEW DELHI, THAT THE ASSESSING OFFICER AT NOIDA ISSUED THE NOTICE DATED 6.3.07 UNDER SECTION 148 OF TH E ACT TO THE ASSESSEE AND PASSED THE CONSEQUENTIAL REASSESSMENT ORDER DATE D 28.12.07 UNDER SECTIONS 143 (3)/147. IF THE ORDER D ATED 9.3.04 NO LONGER STANDS, AS HAS BEEN ORDERED BY THE TRIBUNAL, NOT HING CARRIED OUT IN PURSUANCE THEREOF ALSO REMAINS. IN OTHER WORDS, NEI THER THE RE- ASSESSMENT NOTICE DATED 6.3.07, NOR THE RE-ASSESSMENT ORDER DATED 28.12.07 CAN BE SUSTAINED IN FACE OF THE TRANSFER OF J URISDICTION ORDER DATED 9.3.04 HAVING BEEN NULLIFIED AND SET AT NAUGHT BY THE TRIBUNAL. 21. AS FOR THE PARITY OF THE FACTS OF THE PRESENT CASE WITH THOSE BEFORE THE TRIBUNAL WHILE PASSING THE ORDER DATED 31. 5.12, BUT FOR THE FACTUM OF ISSUANCE OF RE-ASSESSMENT NOTICE ON 6.3.07 POST THE PASSING OF THE ORDER OF TRANSFER OF JURISDICTION ON 9.3.04, NOT EVEN A SINGLE MATERIAL FACT HAS BEEN POINTED OUT BY THE DEPARTMEN T TO BE A FRESH FACT NOT AVAILABLE BEFORE THE TRIBUNAL AT THE TIME OF THE PASSING OF ITS EARLIER ORDER. AN THE FACTUM OF THE ISSUANCE OF THE R E-ASSESSMENT NOTICE HAVING BEEN ORDERED POSTERIOR TO THE ISSUANCE O F THE ORDER OF TRANSFER OF JURISDICTION WEIGHS IN FAVOUR OF THE ASSESSEE RATHER THAN IN ITA NO.3326/DEL/2011 12 FAVOUR OF THE DEPARTMENT. ALL ACTS DONE IN PURSUANCE OF AN INVALID ORDER ARE ALSO INVALID, WHICH IS INDISPUTABLY THE LAW. 22. IN VIEW OF WHAT WE HAVE CONSIDERED ABOVE, NONE O F THE CASE LAWS RELIED ON BY THE DEPARTMENT PERTAINING TO THE ISSUE O F JURISDICTION IS APPLICABLE. IN THOSE CASES, AS RIGHTLY AVERRED ON BEHA LF OF THE ASSESSEE, THE RESPECTIVE TRANSFEREE ASSESSING OFFICERS HAD NAT URAL JURISDICTION OVER THE RESPECTIVE ASSESSEES. HEREIN, ON TH E OTHER HAND, THE TRIBUNAL HAS ALREADY, ON FACTS SIMILAR TO THE PRESE NT CASE, HELD THE ORDER OF TRANSFER OF JURISDICTION TO BE BAD IN LAW. THAT TRIBUNAL ORDER HAS NOT BEEN SHOWN TO HAVE BEEN UPSET, OR EVEN AD INTE RIM STAYED, ON FURTHER CHALLENGE BY THE DEPARTMENT. 23. SO FAR AS REGARDS B.R. CONSTRUCTIONS (SUPRA), THA T DECISION HOLDS, INTER ALIA, THAT WHEN AN HONBLE SINGLE JUDGE OR AN HONBLE DIVISION BENCH OF A HIGH COURT DOUBTS THE CORRECTNESS O F AN OTHERWISE BINDING PRECEDENT, THE APPROPRIATE COURSE WOULD BE T O REFER THE CASE TO A DIVISION BENCH OR A FULL BENCH, AS THE CASE MAY B E. THE DEPARTMENT SEEKS TO HOLD OUT THAT IT IS A SIMILAR SITUA TION HERE AND SO, THE CASE BE REFERRED TO A LARGER BENCH. WE ARE AFRA ID, IT IS NOT SO AT ALL. FIRSTLY, THE EXPRESSION OTHERWISE BINDING PRECEDENT I N B.R. CONSTRUCTION WHEN READ IN THE CONTEXT OF THE PRESENT CASE AB INITIO RECOGNIZES THE MANDATORY FORCE THE TRIBUNAL ORDER DA TED 31.5.12 HOLDS OVER THIS BENCH, FOR THE EXACT SIMILARITY OF FACTS IN THE CASES INTER SE , AS DISCUSSED. AND THE DEPARTMENT ITSELF, WHILE CITING T HIS DECISION, MUST, OBVIOUSLY, BE CONSCIOUS OF THE USE OF SUCH EXPRESSIO N THEREIN. THEREBY, IT EFFECTIVELY REALIZES THE PRECEDENCE VALU E OF THE TRIBUNAL ORDER DATED 31.5.12. THUS, TO STATE THAT THE FACTS AR E DIFFERENT AND SO THE EARLIER TRIBUNAL ORDER BE NOT FOLLOWED, WHILE I TSELF ADMITTING THE OTHERWISE BINDING PRECEDENT VALUE THEREOF SPEAKS VOL UMES OF THE ITA NO.3326/DEL/2011 13 HOLLOWNESS OF THE CLAIM OF THE DEPARTMENT AND ITS SELF- KNOWLEDGE ABOUT IT. 24. THEN, AS DELIBERATED UPON AT LENGTH ABOVE, THIS B ENCH DOES NOT HARBOUR EVEN A SHADOW OF A DOUBT ABOUT THE CORRECTN ESS OF THE TRIBUNAL ORDER DATED 31.5.12. IF THE DEPARTMENT EN TERTAINS ANY SUCH DOUBT, IT IS FOR THE DEPARTMENT TO GET THE MATTER SET AT REST BY ADOPTING APPROPRIATE LEGAL RECOURSE, AS ADVISED. THIS, AS OBSERVED, HAS NOT BEEN SHOWN TO HAVE BEEN DONE. NOW ONCE THIS B ENCH DOES NOT DOUBT THE CORRECTNESS OF THE SAID TRIBUNAL ORDER, EVEN AS PER B.R. CONSTRUCTIONS (SUPRA), AND WHICH IS EVEN OTHERWISE THE SETTLED LEGAL POSITION, THERE IS NO OCCASION, REASON OR CAUSE TO REFER THE MATTER FOR DECISION TO A LARGER BENCH. ALL CONSIDERED, RELIANCE BY THE DEPARTMENT ON B.R. CONSTRUCTIONS, TOO, IS INAPPROPRIATE. 25. IN SO FAR AS REGARDS SUBHASH CHANDER (SUPRA), ONCE THE ORDER OF TRANSFER OF JURISDICTION HAS ITSELF BEEN CANCELLED BY T HE TRIBUNAL, NEITHER THE NOTICE UNDER SECTION 148 OF THE ACT, NO R THE ONE UNDER SECTION 142 (1) OF THE ACT, ISSUED IN PURSUANCE OF THA T TRANSFER ORDER ALSO CAN STAND. SO, THE ASSESSEES CHALLENGE TO THE JURI SDICTION OF THE NOIDA ASSESSING OFFICER CANNOT BE SAID TO BE IN CONTRAV ENTION OF SECTION 124 (3)(B) OF THE ACT. SUBHASH CHANDER, T HEREFORE, IS ALSO OF NO HELP TO THE DEPARTMENT. 26. FOR THE ABOVE DISCUSSION, WE ARE IN RESPECTFUL AGRE EMENT WITH THE TRIBUNAL ORDER DATED 31.5.12 AND WE FOLLOW THE SAME. THE ORDER OF TRANSFER OF JURISDICTION DATED 9.3.04 STANDS ALREADY CA NCELLED/QUASHED THEREIN, LETTING THE JURISDICTION FOR ASSESSMENT OF THE ASSESSEE REMAIN WITH THE ITO, WARD 33 (2), NEW DELHI, WHILE DIVESTIN G THE ASSESSING OFFICER AT NOIDA OF SUCH JURISDICTION. THIS BEING SO, W E HOLD THAT THE ASSESSING OFFICER AT NOIDA WAS NOT COMPETENT TO PERFORM ANY ACT IN ITA NO.3326/DEL/2011 14 PURSUANCE OF THE INVALIDATED TRANSFER ORDER DATED 9.3 .04. AS SUCH, THE NOTICE DATED 6.3.07, ISSUED TO THE ASSESSEE UNDER SECTIO N 148 OF THE ACT AND THE CONSEQUENTIAL RE-ASSESSMENT ORDER DATED 28. 12.07, PASSED UNDER SECTIONS 143 (3)/147 OF THE ACT ARE BAD IN LAW AND ARE HEREBY CANCELLED. CONSEQUENTLY, THE CIT (A)S ORDER ON THIS ISSUE IS ALSO CANCELLED AS INVALID. 27. SINCE THIS JURISDICTIONAL ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF THE ASSESSEE, THE ADDITIONS MADE CONSEQUENTLY DO NOT SURVI VE ANY LONGER AND THE MERITS THEREOF ARE NOT REQUIRED TO BE GONE INTO. ANY ARGUMENT ON SUCH MERITS WAS ALSO NOT ADDRESSED BEFORE US BY EITHER PARTY. 28. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED, AS INDICATED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.20 12. SD/- SD/- [SHAMIM YAHYA] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30.11.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES