Ojasvi Motor Finance Pvt. Ltd., , Howrah V. ITO, Ward - 1(4), Kolkata , Kolkata

ITA 400/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7079 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: S M SURANA
• Keywords: Set aside
• Section: 143(2); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH KO LKATA BEFORE SHRI S. S. GODARA, JM & DR. A.L. SAINI, AM ITA NO.400/KOL/2018 (ASSESSMENT YEAR: 2008-09) OJASVI MOTOR FINANCE PVT. LTD. 6/13, NORTH AVENUE KESAVA PERUMAL PURAM CHENNAI-600028. VS. ITO, WARD-1(4), KOLKATA ./ ./PAN/GIR NO. : AAACO2343M ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI S.M. SURANA, ADVOCATE RESPONDENT BY : SHRI RADHEY SHYAM, CIT / DATE OF HEARING : 11/11/2019 /DATE OF PRONOUNCEMENT : 05/02/2020 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2008-09, IS DIRECTED AGAINST THE ORDER PASSED BY CO MMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA, IN APPEAL NO.11111/CIT(A)-6/K OL/2014-15, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY ASSESSI NG OFFICER U/S 143(3)/147/263/144 OF THE INCOME TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT), DATED 24.03.2014. 2. HOWEVER, IN THIS APPEAL THE ASSESSEE HAS RAISED A MULTIPLE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE SOLITARY GRI EVANCE OF THE ASSESSEE HAS BEEN CONFINED TO GROUND NO.2, WHICH READS AS FOLLOWS: 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE A.O WHEN THE A.O HAD NO JURISDICTION TO COMPLETE THE ASSESSMENT SINCE THE J URISDICTION OVER THE ASSESSEE WAS DULY TRANSFERRED U/S 127 TO ACIT, CENTRAL CIRCLE -2(3), CHENNAI. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3)/ 147/263/144 OF THE ACT ON 24.03.2014 WITHOUT ANY JURISDICTION. THE LD. COUNSE L SUBMITTED THAT THE ASSESSING ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 2 OFFICER HAD NO JURISDICTION TO COMPLETE THE ASSESSM ENT IN KOLKATA, SINCE THE JURISDICTION OVER THE ASSESSEE WAS DULY TRANSFERRED U/S 127 TO ACIT, CENTRAL CIRCLE 2(3), CHENNAI, CIT CENTRAL-II, CHENNAI ON 15 .03.2013, THEREFORE, ASSESSMENT FRAMED BY THE ASSESSING OFFICER [ITO,WD- 1(4), KOLKATA], DATED 24.03.2014 U/S 143(3)/147/263/144 OF THE ACT IS WIT HOUT JURISDICTION AND THEREFORE SHOULD BE QUASHED. 4. ON THE OTHER HAND, LD DR FOR THE REVENUE SUBMITT ED BEFORE THE BENCH THAT FOR ADMINISTRATIVE CONVENIENCE THE ASSESSMENT WAS FRAME D BY INCOME TAX OFFICER KOLKATA . THE LD DR FOR THE REVENUE FILED WRITTEN S UBMISSIONS BEFORE THE BENCH, THE IMPORTANT PART OF THE WRITTEN SUBMISSION IS REP RODUCED BELOW: THE ORDER OF CALCUTTA HIGH COURT IN THE CASE OF RA MSHILA ENTERPRISES (P) LTD IS NOT APPLICABLE IN THE INSTANT CASE. IN THE SAID CAS E, THE JURISDICTION OF THE [RAMSHILA ENTERPRISES (P) LTD] WAS TRANSFERRED ON 03.09.2012 MUCH BEFORE THE ISSUANCE OF NOTICE U/S 263 ON 18.03.2013 AND PASSING THE ORDER U/S 263 ON 26.03.2013. SO ISSUANCE OF NOTICE UNDER SEC 263 AND CONSEQUENT ORD ER PASSED U/S 263 BY CIT, KOL- II WERE HELD WITHOUT JURISDICTION. WHILE IN THE OJASVI MOTOR FINANCE PVT. LTD THE JURI SDICTION OF THIS ASSESSEE WAS TRANSFERRED ON 15.03.2013 FROM ITO WD-1(4), KOLKATA TO ACIT CC-II(3), CHENNAI BUT THE NOTICES U/S 263 WERE ISSUED TO ASSESSEE ON 21.12.2012 & 15.01.2013 AND ALSO THE ORDER U/S 263 WAS PASSED ON 07.03.2013 MUC H BEFORE THE ORDER U/S 127 OF IT ACT FOR TRANSFERRING THE JURISDICTION. THEREFORE NO ANY QUESTION ARISES REGARDING THE JURISDICTION ISSUE. 5. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD. WE NO TE THAT ORDER UNDER SECTION 127 OF THE INCOME TAX ACT WAS ISSUED BY THE COMMISS IONER OF INCOME TAX, KOLKATA-1, ON 15.03.2013 WHEREBY THE COMMISSIONER T RANSFERRED THE JURISDICTION FROM ITO,WD-1(4), KOLKATA TO ACIT CENTRAL CIRCLE-II (3), CHENNAI. THE ORDER WAS PASSED BY THE ASSESSING OFFICER WARD-1(4) KOLKA TA ON 24.03.2014, WHICH IS ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 3 WITHOUT JURISDICTION. FOR THAT WE RELY ON THE JUDGM ENT OF THE HON`BLE HIGH COURT OF CALCUTTA IN THE CASE OF RAMSHILA ENTERPRISES PRIVATE LTD, 383 ITR 546 (CAL-HC), WHEREIN IT WAS HELD AS FOLLOWS: 15. MR. PODDAR, LEARNED SENIOR ADVOCATE, DREW OUR ATTENTION TO AN ORDER DATED 3 RD SEPTEMBER, 2012 APPEARING AT PAGE 584 OF THE ADDITI ONAL PAPERS FILED BY HIM, WHICH IS AN ORDER PASSED UNDER SECTION 127 OF THE INCOME TAX ACT BY NO OTHER THAN THE CIT, KOLKATA-II , KOLKATA, WHO PASSED THE IMPUGNED ORDER UNDER SECTIO N 263, TRANSFERRING THE JURISDICTION OVER FIVE ASSESSEES INCLUDING THE APPE LLANT BEFORE US TO THE ACIT / DCIT , CENTRAL CIRCLE XIX, KOLKATA IN THE INTEREST OF REVE NUE FOR BETTER COORDINATION, EFFECTIVE INVESTIGATION AND MEANINGFUL ASSESSMENT CONSEQUENT TO A SEARCH CONDUCTED ON 17 TH NOVEMBER, 2011 AGAINST THE BUSINESS CONCERN OF ATHA MINES . MR. PODDAR CONTENDED THAT THE APPELLANT BEFORE US IS NOT IN ANY WAY CONN ECTED WITH ATHA MINES GROUP. BUT THE POINT OF SUBSTANCE IS THAT THE IMPUGNED ORDER UNDER SECTION 263 WAS PASSED BY THE CIT, KOLKATA-II, KOLKATA IN SPITE OF THE FACT THAT THE J URISDICTION HAD ALREADY BEEN TRANSFERRED BY HIS PREDECESSOR-IN-OFFICE BY HIS ORDER DATED 3 RD SEPTEMBER, 2012 WITH IMMEDIATE EFFECT. MR. PODDER CONTENDED THAT CIT, KOLKATA-II, KOLKATA THEREAFTER HAD NO LONGER ANY JURISDICTION LEFT WITH HIM TO BE EXERCISED IN RESPE CT OF THE RETURN OR RETURNS FILED BY THE ASSESSEE OR ASSESSMENTS MADE. HE SUBMITTED THAT THE EXERCISE OF POWER WAS NOT ONLY EX PARTE, WITHOUT NOTICE, BUT WAS ALSO WITHOUT JURISDI CTION. HE DREW OUR ATTENTION TO THE LETTER DATED 18 TH MARCH, 2013 RECEIVED BY HIS CLIENT FROM THE DEPUTY COMMISSIONER OF INCOME-TAX, WHICH IS A NOTICE UNDER SECTION 143(2) PERTAINING TO THE ASSESSMENT YEAR 2012-2013. HE SUBMITTED THAT THE ORDER DATED 3 RD SEPTEMBER, 2012 TRANSFERRING JURISDICTION TO A ACIT/DCIT, CENTRAL CIRCLE-XIX, KO LKATA HAD ALREADY BECOME OPERATIVE AND WAS ALSO ACTED UPON. THEREFORE, CIT, KOLKATA-II, KOLKATA COULD NOT HAVE EXERCISED JURISDICTION. THE IMPUGNED ORDER PASSED B Y HIM IS ALTOGETHER WITHOUT JURISDICTION AND IS, THEREFORE, A NULLITY. 16. HE DREW OUR ATTENTION TO A JUDGMENT OF THE APEX COURT IN THE CASE OF PANDURANG AND OTHERS VS. STATE OF MAHARASHTRA REPORTED IN (1986) 4 SCC 436 FOR THE PROPOSITION THAT EVEN A RIGHT ORDER BY A WRONG FORUM IS A NULLITY. I N THE AFORESAID JUDGMENT THEIR LORDSHIP HELD AS FOLLOWS:- 4. WHEN A MATTER REQUIRED TO BE DECIDED BY A DIVIS ION BENCH OF THE HIGH COURT IS DECIDED BY A LEARNED SINGLE JUDGE, THE JUD GMENT WOULD BE A NULLITY, THE MATTER HAVING BEEN HEARD BY A COURT WHICH HAD N O COMPETENCE TO HEAR THE MATTER, IT BEING A MATTER OF TOTAL LACK OF JURI SDICTION. THE ACCUSED WAS ENTITLED TO BE HEARD BY AT LEAST TWO LEARNED JUDGES CONSTITUTING A DIVISION BENCH AND HAD A RIGHT TO CLAIM A VERDICT AS REGARDS HIS GUILT OR INNOCENCE AT THE HANDS OF THE TWO LEARNED JUDGES. THIS RIGHT CAN NOT BE TAKEN AWAY EXCEPT BY AMENDING THE RULES. SO LONG AS THE RULES ARE IN OPERATION IT WOULD BE ARBITRARY AND DISCRIMINATORY TO DENY HIM THIS RIGHT REGARDLESS OF WHETHER IT IS DONE BY REASON OF NEGLIGENCE OR OTHERWISE. DELIB ERATELY, IT CANNOT BE DONE. NEGLIGENCE CAN NEITHER BE INVOKED AS AN ALIBI , NOR CAN CURE THE INFIRMITY OR ILLEGALITY, SO AS TO ROB THE ACCUSED O F HIS RIGHT UNDER THE RULES. WHAT CAN BE DONE ONLY BY AT LEAST TWO LEARNED JUDGE S CANNOT BE DONE BY ONE ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 4 LEARNED JUDGE. EVEN IF THE DECISION IS RIGHT ON MER ITS, IT IS BY A FORUM WHICH IS LACKING IN COMPETENCE WITH REGARD TO THE SUBJECT MATTER. EVEN A RIGHT DECISION BY A WRONG FORUM IS NO DECISION. IT IS N ON-EXISTENT IN THE EYE OF LAW. AND HENCE A NULLITY. THE JUDGMENT UNDER APPEAL IS THEREFORE NO JUDGMENT IN THE EYE OF LAW. THIS COURT IN STATE OF M.P. V. DEWADAS HAS TAKEN A VIEW WHICH REINFORCES OUR VIEW. WE, THEREFORE, AL LOW THE APPEAL, SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE, AND S END THE MATTER BACK TO THE HIGH COURT FOR BEING PLACED BEFORE A DIVISION B ENCH OF THE HIGH COURT, WHICH WILL AFFORD REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES AND DISPOSE IT OF IN ACCORDANCE WITH LAW, EXPEDITIOUSLY . 17. HE ALSO RELIED UPON A DIVISION BENCH JUDGEMENT OF THIS COURT IN THE CASE OF ITO, A WARD, DISTRICT HOWRAH AND OTHERS VS. ASHOKE GLASS W ORKS REPORTED IN (1980) 125 ITR 491 (CAL) WHEREIN THE FOLLOWING VIEW WAS EXPRESSED: - SO WHEN THE JURISDICTION IS VALIDLY REMOVED BY A C OMPETENT AUTHORITY UNDER THE PROVISIONS OF A STATUTE, THE ORIGINAL COURT OR ANY TRIBUNAL OR AUTHORITY IN SUCH EVENT WILL BE INCOMPETENT, AS HAVING CEASED TO HAVE JURISDICTION, TO PROCEED FURTHER WITH THE PENDING PROCEEDING OR PROC EEDING WHICH MAY BE INSTITUTED AFTER SUCH REMOVAL OF JURISDICTION. 18. MR. GHOSAL, LEARNED SENIOR ADVOCATE APPEARING F OR THE REVENUE SUBMITTED THAT THE TRANSFER ORDER ITSELF INDICATES THAT JURISDICTION O F ITO, WD-4(1), KOLKATA WAS TRANSFERRED TO SCIT/DCIT CENTRAL CIRCLE XIX, KOLKATA, WHICH IS AT PAGE 584. 19. THE JURISDICTION OF THE CIT REMAINED UNCHANGED. IN OTHER WORDS, IT IS THE JURISDICTION OF THE TRIAL COURT, WHICH WAS CHANGED. THE JURISDIC TION OF THE APPELLATE AUTHORITY REMAINED UNCHANGED. THEREFORE, THE ORDER UNDER CHAL LENGE WAS VALIDLY PASSED BY THE CIT. 20. MR. PODDAR, IN REPLY, DREW OUR ATTENTION TO THE EXPLANATION APPENDED TO SECTION 127 OF THE INCOME-TAX ACT WHICH READS AS FOLLOWS:- IN SECTION 120 AND THIS SECTION, THE WORD CASE, IN RELATION TO ANY PERSON WHOSE NAME IS SPECIFIED IN ANY ORDER OR DIRECTION I SSUED THEREUNDER, MEANS ALL PROCEEDINGS UNDER THIS ACT IN RESPECT OF ANY YE AR 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 PROCEEDI NGS UNDER THIS ACT WHICH MAY BE COMMENCED AFTER THE DATE OR SUCH ORDER OR DI RECTION IN RESPECT OF ANY YEAR. 21. HE SUBMITTED THAT THE TRANSFER OF A CASE WOULD MEAN ALL PENDING AND FUTURE PROCEEDINGS. HE SUBMITTED THAT EVEN THE LEARNED TRI BUNAL HAS CONCEDED THAT CIT, CENTRAL CIRCLE, KOLKATA HAD JURISDICTION OVER CASES WITH ACIT/DCIT, CENTRAL CIRCLE- XIX, KOLKATA. 22. HE SUBMITTED THAT HAVING HELD THAT THE LEARNED TRIBUNAL WAS WRONG IN POINT OF LAW, IN HOLDING AS FOLLOWS:- ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 5 THE DEFINITION OF CASE FOR THE PURPOSE OF SEC.12 7 OF THE ACT AS GIVEN IN THE EXPLANATION BELOW SEC.127 DOES NOT DEBAR THE COMMIS SIONER FROM TRANSFERRING ONLY A PARTICULAR CASE, MORE SO WHEN T HE REQUEST FOR TRANSFER WAS MADE IN SPECIFIC CIRCUMSTANCES, SUCH AS PROPER CO-ORDINATION OF SEARCH CASES. THE COMMISSIONER TRANSFERRING JURISDICTION H AS POWER TO TRANSFER ALL PROCEEDINGS UNDER THE ACT, WHICH ARE PENDING, COMPL ETED OR WHICH MAY BE COMMENCED AFTER THE DATE OF TRANSFER, BUT THAT DOES NOT MEAN THAT HE DOES NOT HAVE POWERS TO RESTRICT HIS ORDER OF TRANSFER O NLY TO A PARTICULAR CASE FOR WHICH REQUEST WAS MADE, THEREBY, LEAVING THE JURISD ICTION IN RESPECT OF OTHER CASES PERTAINING TO AN ASSESSEE TO BE EXERCISED BY THE AO/CIT WHO ALREADY HAD IT. THE POWER TO DO A PARTICULAR ACT ALSO INCLU DES A POWER TO RESTRICT THE EXERCISE OF POWER PARTLY. IT CANNOT BE SAID THAT TH E POWER SHOULD BE EXERCISED EITHER AS A WHOLE OR NOT AT ALL. SUCH AN ARGUMENT IS FALLACIOUS AND DEFEATS THE VERY PURPOSE OF CONFERRING A LARGER POW ER. AS THE ACTUAL TRANSFER OF THE FILES FROM THE INCUMBENT AO TO THE NEW AO HA D TAKEN PLACE ONLY ON 29.7.2013 AND FURTHER THE ORDER SOUGHT TO BE REVISE D BY THE LD. CIT U/S 263 WAS PASSED MUCH PRIOR TO THE EVEN MAKING OF REQUEST FOR TRANSFER OF JURISDICTION IN RESPECT OF SEARCH MATTERS, WE HAVE ABSOLUTELY NO DOUBT IN OUR MIND THAT ONLY THE CIT KOLKATA II, KOLKATA HAD THE JURISDICTION TO REVISE THE ASSESSMENT ORDER PASSED U/S147 AS HAS BEEN DONE IN THIS CASE. THE CONTENTION OF THE LEARNED AR IN THIS REGARD IS HELD TO BE WITHOUT SUBSTANCE AND NOT UNACCEPTABLE. 23. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT NECESSARY FOR US TO CONSIDER WHETHER THE COMMISSIONER HAD JURISDICTION TO RESTRI CT THE ORDER OF TRANSFER, FOR THE SIMPLE REASON THAT THE ORDER OF TRANSFER IN THIS CA SE WAS NOT A RESTRICTED ONE. READING THE ORDER DATED 3 RD SEPTEMBER, 2012 AS A WHOLE, IT DOES NOT APPEAR THA T ANY RESTRICTED TRANSFER WAS SOUGHT TO BE MADE FOR ANY PARTICULAR Y EAR OR YEARS OR OTHERWISE. THE ORDER OF TRANSFER, AS WE HAVE ALREADY INDICATED, WAS PASS ED IN THE INTEREST OF REVENUE FOR BETTER COORDINATION, EFFECTIVE INVESTIGATIVE AND MEANINGFU L ASSESSMENT. 24. THE ACTUAL TRANSFER OF FILES MAY HAVE TAKEN PLA CE ON 29 TH JULY, 2013 BUT ADMITTED POSITION IS THAT A NOTICE UNDER SECTION 143(2) BY T HE TRANSFEREE-ASSESSING OFFICER WAS ISSUED ON 18 TH MARCH, 2013. THE EXISTENCE OF FILES DOES NOT CONFE R THE JURISDICTION WHEN THE SAME HAS VALIDLY BEEN TRANSFERRED AND ALSO ACTE D UPON. THE JURISDICTION OVER THE SUBJECT-MATTER HAS TO BE CONFERRED BY LAW. THE JURI SDICTION IN THIS CASE HAD BEEN TRANSFERRED BY THE ORDER DATED 3 RD SEPTEMBER, 2012 BY NO OTHER THAN THE CIT KOLKATA- II, KOLKATA HIMSELF. ONCE THAT WAS DONE CIT KOLKATA I I, KOLKATA LOST THE SEISIN OVER THE MATTER. HE BECAME FUNCTUS OFFICIO. 25. REFERENCE IN THIS REGARD MAY BE MADE TO THE STR OUDS JUDICIAL DICTIONARY OF WORDS AND PHRASES, 7 TH EDITION, PAGE 1085 WHEREIN THE FOLLOWING MEANING H AS BEEN EXPRESSED:- FUNCTUS OFFICIO. AN ARBITRATOR OR REFEREE CANNOT B E SAID TO BE FUNCTUS OFFICIO WHEN HE HAS GIVEN A DECISION WHICH IS HELD TO BE NO DECISION AT ALL (DAVIES V HOWE SPINNING CO LTD, 27 B.W.C.C. 207). ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 6 WHERE A JUDGE HAS MADE AN ORDER FOR A STAY OF EXECU TION WHICH HAS BEEN PASSED AND ENTERED, HE IS FUNCTUS OFFICIO, AND NEIT HER HE NOR ANY OTHER JUDGE OF EQUAL JURISDICTION HAS JURISDICTION TO VARY THE TERMS OF SUCH STAY (RE V.G.M. HOLDING LTD [1941] 3 ALL E.R. 417). AN ARBITRATOR OR UMPIRE WHO HAS MADE HIS AWARD IS F UNCTUS OFFICIO, AND COULD NOT BY COMMON LAW ALTER IT IN ANY WAY WHATSOE VER; HE COULD NOT EVEN CORRECT AN OBVIOUS CLERICAL MISTAKE. SEE MORDUE V P ALMER, 6 CH. APP. 22; HENFREE V BROMLEY, 6 EAST, 309; BROOKE V MITCHELL, 6 M. & W.473. SEE NOW ARBITRATION ACT 1950 (C.27), S.17. 26. REFERENCE MAY ALSO BE MADE TO THE JUDGEMENT IN THE CASE OF RE V.G.M. HOLDINGS, LTD. REPORTED IN 1941 (3) ALL ENGLAND LAW REPORTS, 417 WHEREIN THE FOLLOWING VIEWS WERE EXPRESSED:- I THINK THAT IT WOULD BE A STRANGE POSITION IF A J UDGE WERE AT LIBERTY TO RECONSIDER HIS DECISION AND GRANT A STAY OF EXECUTI ON AFTER HE HAD MADE AN ORDER REFUSING IT. I THINK THAT, WHEN A JUDGE HAS M ADE AN ORDER SUCH AS THAT IN THE PRESENT CASE, THE ONLY REMEDY FOR THE RESPON DENT, IF HE IS DISSATISFIED WITH THE ORDER, IS TO GO TO THE COURT OF APPEAL 27. A SPECIAL BENCH IN THE CASE OF KOMAL CHAND VS- THE STATE OF MADHYA PRADESH, REPORTED IN AIR 1966 MADHYA PRADESH 20 OPINED IN TH IS REGARD AS FOLLOWS:- SECTION 35 OF THE STAMP ACT, INTER ALIA, SAYS THAT NO INSTRUMENT CHARGEABLE WITH DUTY SHALL BE REGISTERED BY ANY PUBLIC OFFICER UNLESS SUCH INSTRUMENT IS DULY STAMPED. THIS PROVISION THUS CASTS A DUTY ON T HE REGISTERING OFFICER TO EXAMINE WHETHER AN INSTRUMENT PRESENTED FOR REGISTR ATION IS DULY STAMPED. IF, AS SECTION 36 SAYS, AN INSTRUMENT CHARGEABLE WI TH DUTY SHALL NOT BE REGISTERED UNLESS SUCH INSTRUMENT IS DULY STAMPED, THEN IT FOLLOWS THAT THE REGISTERING OFFICER MUST PERFORM THE DUTY OF SEEING WHETHER AN INSTRUMENT PRESENTED FOR REGISTRATION IS OR IS NOT DULY STAMPE D BEFORE ADMITTING IT TO REGISTRATION AND NOT AFTERWARDS. IF HE FINDS THAT T HE DOCUMENT IS NOT DULY STAMPED, THEN HE MUST IMPOUND IT UNDER SECTION 33 O F THE ACT. NEITHER IN THE REGISTRATION ACT NOR IN THE STAMP ACT IS THERE ANY PROVISION GIVING TO THE REGISTERING OFFICER ANY POWER TO EXAMINE WHETHER AN INSTRUMENT ALREADY REGISTERED WAS OR WAS NOT DULY STAMPED AND TO IMPOU ND IT. AS SOON AS THE REGISTERING OFFICER REGISTERS A DOCUMENT PRESENTED TO HIM FOR REGISTRATION, THE FUNCTION IN THE PERFORMANCE OF WHICH THE DOCUME NT WAS PRODUCED BEFORE HIM IS OVER AND THEREAFTER BECOMES FUNCTUS OFFICIO HAVING NO POWER UNDER SECTION 33 TO IMPOUND THE INSTRUMENT. THE MATTER IS REALLY CONCLUDED BY THE DECISION OF T HE SUPREME COURT IN GOVT. OF UTTAR PRADESH V. MOHAMMAD AMIR AHMAD KHAN, AIR 1 961 SC 787. THAT WAS A CASE WHERE THE QUESTION AROSE WHETHER THE COL LECTOR HAS ANY POWER TO IMPOUND AN INSTRUMENT SENT TO HIM FOR ADJUDICATION UNDER SECTION 31 OF THE STAMP ACT. THE SUPREME COURT HELD THAT UNDER THAT S ECTION THE COLLECTOR HAD NO SUCH POWER, AS THE PROVISION GAVE HIM THE PO WER ONLY TO GIVE HIS OPINION AS REGARDS THE DUTY WITH WHICH IN HIS JUDGM ENT THE INSTRUMENT WAS CHARGEABLE AND WHEN THAT FUNCTION WAS PERFORMED BY THE COLLECTOR HE BECAME FUNCTUS OFFICIO. ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 7 IT WAS OBSERVED BY THE SUPREME COURT THAT THE POWER TO IMPOUND ONLY EXISTS WHEN AN INSTRUMENT IS PRODUCED BEFORE JUDICIAL OFFI CERS OR OTHER OFFICERS PERFORMING JUDICIAL FUNCTIONS AS EVIDENCE OF ANY FA CT TO BE PROVED, OR BEFORE OTHER PUBLIC OFFICERS WHO HAVE TO PERFORM ANY FUNCT ION IN REGARD TO THOSE INSTRUMENTS AS, FOR EXAMPLE, REGISTRATION. THE SUPR EME COURT ALSO APPROVED THE DECISIONS IN COLLECTOR, AHMEDNAGAR V. RAMBHAU, AIR 1930 BOM 392 (FB); PAIKU V. GAYA, ILR (1948) NAG 950 : (AIR 1949 NAG 214) AND PANAKALA RAO V. KUMARASWAMI, AIR 1937 MAD 763 WHERE THE DOCTRINE OF FUNCTUS OFFICIO WAS APPLIED AND IT WAS HELD THAT TH E COURT HAD NO POWER TO RECALL AND IMPOUND A CERTIFICATE OF SALE AFTER EXEC UTING IT AND DELIVERING IT TO THE PURCHASER, OR TO REOPEN A CASE AND IMPOUND DOCU MENTS PROVED AFTER SIGNING THE DECREE, OR TO IMPOUND AN INSTRUMENT ADM ITTED IN EVIDENCE AFTER DELIVERY OF JUDGMENT. HERE, WHEN THE SUB-REGISTRAR HAD REGISTERED THE DOCUMENT IN QUESTION ON 31ST OCTOBER, 1950 HE BECAM E FUNCTUS OFFICIO ON THAT DATE AND THEREAFTER HE HAD NO POWER TO IMPOUND THE SAME. IN THE PRESENT CASE, THE SUB-REGISTRAR PURPORTED TO ACT UNDER PARAGRAPH 232 OF THE REGISTRATION MANUAL WHEN HE MADE A REPORT TO THE COLLECTOR THAT THE TAKSEEMNAMA WAS NOT DULY STAMPED. BUT ON READING PARAGRAPHS 231 AND 232 IT IS CLEAR THAT THEY DO NOT SAY THAT AFTER A D OCUMENT IS ADMITTED TO REGISTRATION, THE REGISTERING OFFICER CAN MAKE A RE PORT TO THE COLLECTOR THAT IT WAS NOT SUFFICIENTLY STAMPED ON THE OTHER HAND, PAR AGRAPH 231 EXPRESSLY LAYS DOWN A DIRECTION THAT BEFORE TAKING ANY FURTHE R ACTION, THAT IS TO SAY, IN THE MATTER OF REGISTRATION, THE REGISTERING OFFICER MUST SEE THAT THE DOCUMENT IS DULY STAMPED. THE WORDS AFTER REGISTERING THE D OCUMENT OCCURRING IN PARAGRAPH 232 OBVIOUSLY REFER TO THE ENTRY OF THE D OCUMENT IN THE REGISTER MAINTAINED OF DOCUMENTS PRESENTED FOR REGISTRATION. THEY DO NOT MEAN THAT THE REGISTERING OFFICER CAN MAKE A REPORT ABOUT INS UFFICIENCY OF STAMP AFTER THE DOCUMENT HAS BEEN ADMITTED TO REGISTRATION. 28. IN THE CASE OF SBI VS- S. N. GOYAL REPORTED IN 2009 (8) SCC 92 THE FOLLOWING VIEWS WERE EXPRESSED:- IT IS TRUE THAT ONCE AN AUTHORITY EXERCISING QUASI -JUDICIAL POWER TAKES A FINAL DECISION, IT CANNOT REVIEW ITS DECISION UNLES S THE RELEVANT STATUTE OR RULES PERMIT SUCH REVIEW. BUT THE QUESTION IS AS TO AT WHAT STAGE AN AUTHORITY BECOMES FUNCTUS OFFICIO IN REGARD TO AN ORDER MADE BY HIM. P. RAMANATHA AIYAR'S ADVANCED LAW LEXICON (3RD EDN., VOL. 2, PP. 1946-47) GIVES THE FOLLOWING ILLUSTRATIVE DEFINITION OF THE TERM FUNC TUS OFFICIO: THUS A JUDGE, WHEN HE HAS DECIDED A QUESTION BROUGH T BEFORE HIM, IS FUNCTUS OFFICIO, AND CANNOT REVIEW HIS OWN DECISION. BLACK'S LAW DICTIONARY (6TH EDN., P. 673) GIVES ITS MEANING AS FOLLOWS: HAVING FULFILLED THE FUNCTION, DISCHARGED THE OFFI CE, OR ACCOMPLISHED THE PURPOSE, AND THEREFORE OF NO FURTHER FORCE OR AUTHO RITY. WE MAY FIRST REFER TO THE POSITION WITH REFERENCE T O CIVIL COURTS. ORDER 20 OF THE CODE OF CIVIL PROCEDURE DEALS WITH JUDGMENT AND DECREE. RULE 1 EXPLAINS WHEN A JUDGMENT IS PRONOUNCED. SUB-RULE (1 ) PROVIDES THAT THE COURT, AFTER THE CASE HAS BEEN HEARD, SHALL PRONOUN CE JUDGMENT IN AN OPEN COURT EITHER AT ONCE, OR AS SOON THEREAFTER AS MAY BE PRACTICABLE, AND WHEN ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 8 THE JUDGMENT IS TO BE PRONOUNCED ON SOME FUTURE DAY , THE COURT SHALL FIX A DAY FOR THAT PURPOSE OF WHICH DUE NOTICE SHALL BE G IVEN TO THE PARTIES OR THEIR PLEADERS. SUB-RULE (3) PROVIDES THAT THE JUDGMENT M AY BE PRONOUNCED BY DICTATION IN AN OPEN COURT TO A SHORTHAND WRITER [I F THE JUDGE IS SPECIALLY EMPOWERED (SIC BY THE HIGH COURT) IN THIS BEHALF]. THE PROVISO THERETO PROVIDES THAT WHERE THE JUDGMENT IS PRONOUNCED BY D ICTATION IN OPEN COURT, THE TRANSCRIPT OF THE JUDGMENT SO PRONOUNCED SHALL, AFTER MAKING SUCH CORRECTIONS AS MAY BE NECESSARY, BE SIGNED BY THE J UDGE, BEAR THE DATE ON WHICH IT WAS PRONOUNCED AND FORM A PART OF THE RECO RD. RULE 3 PROVIDES THAT THE JUDGMENT SHALL BE DATED AND SIGNED BY THE JUDGE IN OPEN COURT AT THE TIME OF PRONOUNCING IT AND WHEN ONCE SIGNED, SHALL NOT AFTERWARDS BE ALTERED OR ADDED TO SAVE AS PROVIDED BY SECTION 152 OR ON R EVIEW. THUS, WHERE A JUDGMENT IS RESERVED, MERE DICTATION DOES NOT AMOUN T TO PRONOUNCEMENT, BUT WHERE THE JUDGMENT IS DICTATED IN OPEN COURT, THAT ITSELF AMOUNTS TO PRONOUNCEMENT. BUT EVEN AFTER SUCH PRONOUNCEMENT BY OPEN COURT DICTATION, THE JUDGE CAN MAKE CORRECTIONS BEFORE SIGNING AND D ATING THE JUDGMENT. THEREFORE, A JUDGE BECOMES FUNCTUS OFFICIO WHEN HE PRONOUNCES, SIGNS AND DATES THE JUDGMENT (SUBJECT TO SECTION 152 AND POWE R OF REVIEW). THE POSITION IS DIFFERENT WITH REFERENCE TO QUASI-JUDIC IAL AUTHORITIES. WHILE SOME QUASI-JUDICIAL TRIBUNALS FIX A DAY FOR PRONOUNCEMEN T AND PRONOUNCE THEIR ORDERS ON THE DAY FIXED, MANY QUASI-JUDICIAL AUTHOR ITIES DO NOT PRONOUNCE THEIR ORDERS. SOME PUBLISH OR NOTIFY THEIR ORDERS. SOME PREPARE AND SIGN THE ORDERS AND COMMUNICATE THE SAME TO THE PARTY CONCER NED. A QUASI-JUDICIAL AUTHORITY WILL BECOME FUNCTUS OFFICIO ONLY WHEN ITS ORDER IS PRONOUNCED, OR PUBLISHED/NOTIFIED OR COMMUNICATED (PUT IN THE COUR SE OF TRANSMISSION) TO THE PARTY CONCERNED. WHEN AN ORDER IS MADE IN AN OF FICE NOTING IN A FILE BUT IS NOT PRONOUNCED, PUBLISHED OR COMMUNICATED, NOTHI NG PREVENTS THE AUTHORITY FROM CORRECTING IT OR ALTERING IT FOR VAL ID REASONS. BUT ONCE THE ORDER IS PRONOUNCED OR PUBLISHED OR NOTIFIED OR COM MUNICATED, THE AUTHORITY WILL BECOME FUNCTUS OFFICIO. THE ORDER DATED 18-1-1 995 MADE ON AN OFFICE NOTE, WAS NEITHER PRONOUNCED, NOR PUBLISHED/NOTIFIE D NOR COMMUNICATED. THEREFORE, IT CANNOT BE SAID THAT THE APPOINTING AU THORITY BECAME FUNCTUS OFFICIO WHEN IT SIGNED THE NOTE DATED 18-1-1995. 29. APPLYING THE LAW LAID DOWN IN S. N. GOYALS (SU PRA) CASE WE ARE REINFORCED, IN OUR OPINION THAT THE CIT KOLKATA II, KOLKATA HAD BECO ME FUNCTUS OFFICIO PRIOR TO 18 TH MARCH, 2013 BECAUSE THE TRANSFEREE ASSESSING OFFI CER HAD ASSUMED JURISDICTION WITHOUT WHICH THE NOTICE DATED 18 TH MARCH, 2013 UNDER SECTION 143(2) COULD NOT HAVE BEEN ISSUED. THEREFORE, THE ORDER OF TRANSFER WAS D ULY PUBLISHED/ NOTIFIED AND/OR COMMUNICATED AND THEREAFTER ACTED UPON BY THE TRANS FEREE-ASSESSING OFFICER. 30. WE ARE, AS SUCH OF THE OPINION THAT THE ISSUANC E OF THE NOTICE DATED 18 TH MARCH, 2013 UNDER SECTION 263 AND THE CONSEQUENT ORDER DATED 26 TH MARCH, 2013 PASSED UNDER SECTION 263 OF THE INCOME TAX ACT WERE ACTS WITHOUT JURISDICTION AND THEREFORE A NULLITY. ITA NO.400/KOL/2018 OJASVI MOTOR FINANCE PVT. LTD. 9 6. IN ASSESSEE`S CASE UNDER CONSIDERATION, THE ORDE R UNDER SECTION 127 OF THE INCOME TAX ACT WAS ISSUED BY THE COMMISSIONER OF IN COME TAX, KOLKATA-1, ON 15.03.2013 WHEREBY THE COMMISSIONER TRANSFERRED THE JURISDICTION FROM ITO,WD- 1(4), KOLKATA TO ACIT CENTRAL CIRCLE-II(3), CHENNAI . WHEREAS, THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER WARD-1(4) KOLKATA ON 24.03.2014, WHICH IS WITHOUT JURISDICTION. EVEN A RIGHT DECIS ION BY A WRONG FORUM IS NO DECISION. IT IS NON-EXISTENT IN THE EYE OF LAW. AND HENCE A NULLITY. THE ASSESSMENT ORDER UNDER APPEAL IS THEREFORE NO ORDER IN THE EYE OF LAW , HENCE WE QUASH THE ASSESSMENT ORDER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/02/20 20. SD/- (S. S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:05/02/2020 RS, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- OJASVI MOTOR FINANCE PVT. LTD. 2. / THE RESPONDENT.- ITO, WARD-1(4), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. ! $$% , % , / DR, ITAT, KOLKATA 6. ( / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .