ADDL CIT 2(3), MUMBAI V. TATA SONS LTD, MUMBAI

ITA 4893/MUM/2012

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6930 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 27-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BOTH
• Keywords: Retrospective amendment; Competent authority; Assessment record
• Section: 143(3); 142(1); 143(1); 143(2); 113; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 4893/MUM/12 2006-07 ACIT-2(3) MUMBAI M/S. TATA SONS LTD., BOMBAY HOUSE, 24, HOMI MODY STREET, FORT, MUMBAI [PAN: AAACT4060A] 2545/MUM/12 2007-08 4543/MUM/12 2006-07 M/S. TATA SONS LTD., BOMBAY HOUSE, 24, HOMI MODY STREET, FORT, MUMBAI [PAN: AAACT4060A] ACIT-2(3) MUMBAI 2487/MUM/12 2007-08 REVENUE B Y : SHRI R. MANJUNATHA SWAMY , CIT - DR ASSESSEE B Y : MS . AARTI VISSANJI , A R DATE OF HEARING : 31 - 0 1 - 20 20 DATE OF PRONOUNCEMENT : 03 - 0 2 - 20 20 O R D E R PER RAJESH KUMAR, A.M: THESE ARE CROSS-APPEALS FILED BY BOTH REVENUE AND ASSESSEE, AGAINST THE SEPARATE ORDERS OF THE COMMIS SIONER OF INCOME TAX(APPEALS)-6, MUMBAI FOR THE AYS.2006-07 D ATED 15.05.2012 & 2007-08 DATED 31.01.2012. M/S. TATA SONS LTD., (GROUP CASE) : 2 : ITA NOS. 4543/MUM/12 AY 2006-07 & 2487/MUM/12 AY 2007- 08(ASSESSEES APPEAL) 2. AT OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE STA TED THAT THE ASSESSEE HAS FILED ADDITIONAL GROUNDS IN R ESPECT OF THESE TWO YEARS VIDE EVEN LETTERS DATED 22.02.2017 CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER WHO IS AD DL. COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED AS A DD CIT) TO PASS ASSESSMENT ORDER ON THE GROUND THAT LD. ADD CI T IS NOT AN ASSESSING OFFICER. THE ASSESSEE BY WAY OF THESE ADDITIONAL GROUNDS RAISED IN THESE TWO ASSESSMENT YEARS I.E. A Y 2006-07 AND AY 2007-08 HAS CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDERS PASSED BY THE ADDITIONAL CIT INTER ALIA ON THE FOLLOWING GROUNDS WHICH ARE REPRODUCED AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ASSESSMENT ORDER DATED 29.12.2008 PASSED BY THE ADDITIONAL COM MISSIONER OF INCOME TAX UNDER SECTION 143(3) IS BAD IN LAW, ILLEGAL AND WITHOUT JURISDICTION AND / OR IN EXCESS OF JURISDICTION, ON THE GROUNDS AMON GST OTHERS, THAT HE FAILED TO ESTABLISH THAT HE POSSESSED LEGAL AND VALID JURI SDICTION UNDER THE ACT TO PASS THE ASSESSMENT ORDER AND CONSEQUENTLY THE HON' BLE TRIBUNAL BE PLEASED TO QUASH THE SAID ORDER. 2. THE ADDITIONAL COMMISSIONER OF INCOME TAX L ACKED JURISDICTION TO PASS THE ORDER OF ASSESSMENT U/S 143(3) DATED 29.12 .2008 AND TO EXERCISE THE POWERS OF PERFORMING THE FUNCTIONS OF AN ASSESS ING OFFICER, WITHOUT ESTABLISHING THAT HE POSSESS SUCH JURISDICTION CONF ERRED ON HIM UNDER SECTION 120(4)(B) OF THE ACT. ACCORDINGLY, IN THE A BSENCE OF AN ORDER U/S 120(4)(B) CONFERRING JURISDICTION ON THE ADDITIONAL COMMISSIONER OF INCOME TAX, THE ASSESSMENT ORDER DATED 29.12.2008 P ASSED BY HIM NEEDS TO BE QUASHED. 3. THE PROCEEDINGS HAVING BEEN INITIATED BY IS SUE OF A NOTICE U/S 143(2) ON 3.09.2007 BY THE ASST. COMMISSIONER OF INCOME TA X, IN THE ABSENCE OF AN ORDER TRANSFERRING JURISDICTION U/S 127 TO THE A DDITIONAL COMMISSIONER OF INCOME TAX, THE ORDER OF ASSESSMENT DATEDL9.03.2 004 PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, IS WITHOUT J URISDICTION AND NEEDS TO BE QUASHED. 4. THE PROCEEDINGS HAVING BEEN INITIATED BY TH E LOWER AUTHORITY (VIZ. ASST. COMMISSIONER OF INCOME TAX), IN THE ABSENCE O F AN ORDER M/S. TATA SONS LTD., (GROUP CASE) : 3 : TRANSFERRING JURISDICTION U/S 127 TO THE ADDITIONAL COMMISSIONER OF INCOME TAX, THE ORDER OF ASSESSMENT PASSED BY THE HIGHER A UTHORITY (VIZ. ADDITIONAL COMMISSIONER OF INCOME TAX) IS WITHOUT J URISDICTION AND NEEDS TO BE QUASHED. 5. AS HELD IN MEGA CORPORATION LTD VS. ADDL. C IT ITA NO. 102/DEL/2014, IN A CASE WHERE THE PROCEEDINGS HAVE BEEN INITIATED BY ONE OFFICER AND THE ASSESSMENT ORDER IS PASSED BY THE ANOTHER OFFICER, THE ASSESSMENT ORDER IS BAD IN LAW AND ILLEGAL AND THEREFORE THE IMPUGNED A SSESSMENT ORDER IS THIS CASE SHOULD BE QUASHED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT TH ESE ADDITIONAL GROUNDS OF APPEAL RAISED IN THESE TWO AP PEALS OF ASSESSEE RELATE TO THE CROSS APPEALS ALSO BEING JUR ISDICTIONAL ISSUE. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT HE WILL FIRST DEAL WITH AND NARRATE THE FACTS FOR AY 2006 -07 IN ASSESSEES APPEAL IN ITA NO4543/MUM/2012 . HE STATE D THAT THE ABOVE ADDITIONAL GROUNDS RAISED BY ASSESSEE COM PANY ARE PURELY TECHNICAL AND ON LEGAL ISSUES CHALLENGING T HE VALIDITY OF THE ASSESSMENT ORDER PASSED BY THE ADD CIT, GO TO T HE VERY ROOT OF THE MATTER QUA THE JURISDICTION AND AUTHOR ITY OF THE ADD CIT TO FRAME THE ASSESSMENT ORDER. HE STATED TH AT THESE ADDITIONAL GROUNDS DO NOT REQUIRE ANY FURTHER VERIF ICATION OF FACTS OR RECORDS AS THESE ARE EMANATING FROM THE AS SESSMENT RECORDS ONLY AND CAN BE DECIDED ON THE BASIS OF RE CORDS WHICH WERE AVAILABLE IN THE ASSESSMENT PROCEEDINGS AND PR AYED BEFORE THE BENCH TO ADMIT THE SAME FOR ADJUDICATION . IN DEFENSE OF HIS ARGUMENTS THE LD. AR PLACED RELIANC E ON THE FOLLOWING DECISIONS: - I. JUTE CORPORATION OF INDIA LTD. V. CIT (187 ITR 688 (SC); II. NATIONAL THERMAL POWER CORPN. LTD. V. CIT (229 ITR 383) (BOM HIGH COURT) (FB); M/S. TATA SONS LTD., (GROUP CASE) : 4 : III. AHMEDABAD ELECTRICITY CO. LTD. V. CIT (188 ITR 351) (BOM HIGH COURT) (FB); IV. CIT V. PRUTHVI BROKERS & SHAREHOLDERS (349 ITR 336) (BOM HIGH COURT) 4. THE LEARNED COUNSEL FOR THE ASSESSEE IN SUPPORT OF HIS ABOVE ARGUMENT ALSO STATED THAT ON IDENTICAL SET OF FACTS, THE ITAT HAS ADMITTED SIMILAR ADDITIONAL GROUNDS IN THE CASE OF ITS GROUP CONCERNS IN THE FOLLOWING CASES: - I. TATA SONS LTD. V. ACIT (162 ITD 450) (MUM ITAT); II. TATA SONS LTD. V. ACIT (ITA NO. 3745/MUM/2006) (MUM ITAT); III. TATA SONS LTD. V. ACIT (ITA NO. 2639/MUM/200) (MUM ITAT); IV. TATA COMMUNICATIONS LTD. V. ADDL. CIT (ITA NO. 7071/MUM/2005) (MUM ITAT); V. TATA COMMUNICATION LTD. VS. ADDL. CIT (ITA NOS. 3972/MUM/2007 & 1109/MUM/2008) (MUM ITAT) 5. HE STATED THAT THE NECESSITY FOR RAISING OF ADDITIO NAL GROUNDS AROSE AFTER THE DECISION OF MUMBAI ITAT IN THE CASE OF TATA SONS LTD. VS. ACIT (162 ITD 450), WHEREIN EXAC TLY IDENTICAL ISSUES WAS FIRST DEALT WITH AND DECIDED I N FAVOUR OF THE ASSESSEE. THE LD AR SUBMITTED THAT THE ACIT P ASSED THE ASSESSMENT ORDER U/S 143(3)(II) OF THE ACT DATED 29 .12.2008 WHICH IS CHALLENGED ON THE JURISDICTIONAL ISSUE. TH E LD AR CONTENDED THAT THE ASSTT.CIT ,CIRCLE2(3), MUMBAI HA S ISSUED NOTICE DATED 3.9.2007 TO THE ASSESSEE U/S 143(2) OF THE ACT. THEREAFTER THE QUESTIONNAIRE DATED 24.10.2008 WAS I SSUED ON THE ASSESSEE BY THE ACIT, RANGE 2(3), MUMBAI CALLIN G UPON M/S. TATA SONS LTD., (GROUP CASE) : 5 : THE ASSESSEE TO FURNISH INFORMATION IN CONNECTION W ITH THE ASSESSMENT U/S 142(1) OF THE ACT. FINALLY THE ASSES SMENT WAS FRAMED BY THE ADD. CIT AS STATED ABOVE. THE ASSESSE E VIDE LETTER DATED 20.3.2017 REQUESTED TO ITS JURISDICTIO NAL AO TO FURNISH CERTAIN DOCUMENTS INCLUDING THE RELEVANT AUTHORIZATION FROM THE CENTRAL BOARD OF DIRECT TAXE S (CBDT) TO THE CIT AND THE RELEVANT ORDER PASSED BY THE CIT AND ANY OTHER RELEVANT DOCUMENTS. THE LEARNED COUNSEL FURTH ER STATED THAT THE ASSESSEE COMPANY VIDE LETTER DATED 20.3.20 17 MADE SIMILAR PRAYERS BEFORE THE HONBLE TRIBNAL TO DIREC T THE AO TO FURNISH ANY NOTIFICATION/CIRCULAR /ORDER IN SUPPORT OF THE ITS CASE. IN VIEW OF THE ABOVE, THE LEARNED COUNSEL FOR THE ASSESSEE REQUESTED THAT THE ASSESSEE COMPANY PRAYS AND PRESSES FOR ADMISSION OF ADDITIONAL GROUNDS OF APPE AL RAISED BY ASSESSEE FOR ADJUDICATION. 6. ON THE OTHER HAND, THE LD. CIT-DR, SHRI MANJUNATHA SWAMY ARGUED THAT THIS GROUND IS RAISED BY ASSESSEE ALMOST AFTER 10 YEARS AFTER FRAMING THE ASSESSMENT ORDER AND NOW BY RAISING THIS JURISDICTIONAL ISSUE THE ASSESSEE COMP ANY WANTS TO GO SCOT-FREE WITHOUT PAYING ANY TAX WHICH IN THE INTEREST OF JUSTICE MAY NOT BE ALLOWED BY DISMISSING THE ADDITI ONAL GROUNDS RAISED BY THE ASSESSEE. THE LD. CIT-DR CONT ENDED THAT IT IS THE DOMAIN THE DEPARTMENT TO DELEGATE T HE POWERS IN THE TAXATION HIERARCHY AND THE ASSESSEE HAS NO LOCU S STANDIE TO QUESTION THE SAME. 7. ON QUERY FROM THE BENCH TO THE LD.CIT-DR DURING TH E COURSE OF HEARING ON AS TO WHETHER THERE WAS ANY OR DER / NOTIFICATION ISSUED UNDER SECTION 127/ 120(4)(B) OF THE ACT. M/S. TATA SONS LTD., (GROUP CASE) : 6 : THE LD.CIT-DR FAIRLY CONCEDED THAT THERE WERE NO SU CH ORDERS ISSUED AND HE IS UNABLE TO ANSWER THIS. 8. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT CHALLENGING THE VERY JURISDICTION OF THE AO FOR FRA MING OF ASSESSMENT IS PURELY A JURISDICTIONAL ISSUE WHICH I S RAISED BY ASSESSEE VIDE LETTER DATED 16.3.2017. WE FIND TH AT THE ISSUES RAISED BY THE ASSESSEE ARE PURELY JURISDICTI ONAL AND LEGAL ISSUES AND GO TO THE ROOTS OF THE ASSESSMENT FRAMED BY THE ADDL. CIT AND AS SUCH DO NOT REQUIRE AND ANY FU RTHER VERIFICATION OF FACTS. IN VIEW OF THESE FACTS WE AR E OF THE CONSIDERED OPINION THAT THE ASSESSEE IS AT LIBERTY TO RAISE THE LEGAL ISSUE AT THIS STAGE AND ACCORDINGLY WE IN CLINED TO ADMIT THESE ADDITIONAL GROUNDS RAISED BY THE ASSESS EE FOR ADJUDICATION IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF JUTE CORPORATION OF INDI A LTD. V. CIT (SUPRA) AND ALSO THE JURISDICTIONAL HIGH COURT IN NATIONAL THERMAL POWER CORPN. LTD. V. CIT, AHMEDABA D ELECTRICITY CO. LTD. V. CIT, CIT V. PRUTHVI BROKERS & SHAREHOLDERS (SUPRA). 9. THE FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY INTER ALIA IS ENGAGED IN THE BUSINESS OF GENERATION, PURCHASE , TRANSMISSION AND DISTRIBUTION OF ELECTRICITY. FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE C OMPANY FILED ITS RETURN OF INCOME ON 29.11.2006. THE ASSES SEE- COMPANYS CASE WAS SELECTED FOR SCRUTINY FOR THE RE LEVANT ASSESSMENT YEAR AND ASSTT. CIT, CIRCLE 2(3), MUMBAI ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT DATED 3.9.20 07. M/S. TATA SONS LTD., (GROUP CASE) : 7 : SUBSEQUENTLY, THE ASSTT. CIT AGAIN ISSUED NOTICE U/ S 143(2) OF THE ACT DATED 16.11.2007. THEREAFTER THE ADD.CIT RA NGE 2(1), MUMBAI ISSUED NOTICE AND QUESTIONNAIRE UNDER SECTI ON 142(1) OF THE ACT DATED 24.10.2008. THE RELEVANT NOTICES A RE ENCLOSED IN ASSESSEES PAPER BOOK AT ITEM NO. 1 TO 4. THEREA FTER, THE ADDL.CIT PASSED ASSESSMENT ORDER UNDER SECTION 143( 3) OF THE ACT DATED 29.12.2008 AND AGAINST THIS ASSESSMENT AS SESSEE FILED APPEAL BEFORE CIT(A), WHO PARTLY ALLOWED THE RELIEF TO THE ASSESSEE VIDE ORDER DATED 15.5.2012. AGAINST THE OR DER OF CIT(A), THE ASSESSEE AS WELL AS THE REVENUE FILED A PPEALS BEFORE THE TRIBUNAL. 10. WE NOTE THAT AS PER SECTION 2(7A) OF THE ACT, A O MEANS INTER ALIA AN ADDL. CIT WHO IS DIRECTED U/S.120(4)(B) OF THE A CT TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED ON, OR ASSIGNED TO, AN AO UNDER THE ACT. AS PER SECTION 120(4)(B) OF THE ACT, THE CBDT HAS TO FIRST EMPOWER THE COMMISSIONER TO ISSUE ORDERS AND THEN THE SAID AUTHORITY HAS TO ASSIGN OR CONFER THE AUTHORITY OF THE AO ON THE ADDL.CIT. IN THE PRESENT CASE NONE OF SUCH NOTIFICA TIONS/ ORDERS AS REQUIRED BY SECTION 120(4)(B) OF THE ACT HAVE BEEN ISSUED. FURTHER, AS PER SECTION 127 OF THE ACT WHEN THERE IS A TRANSFER OF JURISDICTION, THEN THE CONDITION THEREI N HAS TO BE FULFILLED. IN THE PRESENT CASE, ORIGINALLY THE JURI SDICTION TO MAKE THE ASSESSMENT OVER THE COMPANY WAS WITH THE ASSTT.CIT. THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ADDL.CIT WITHOUT ANY TRANSFER OF JURISDICTION IN HI S FAVOUR. FURTHER, ON A SPECIFIC QUERY OF THE BENCH TO THE LD .DR IN THE COURSE OF THE HEARING ON AS TO WHETHER THERE WAS A NY ORDER/ M/S. TATA SONS LTD., (GROUP CASE) : 8 : NOTIFICATION ISSUED UNDER SECTION 127/ 120(4)(B) OF THE ACT, THE LD.DR CONCEDED THAT THERE WERE NO SUCH ORDERS ISSUE D. IN VIEW OF THE THEREOF, THE LD COUNSEL OF THE ASSESSEE COMPANY ARGUED THAT AS THE ADDL.CIT DID NOT POSSESS THE REL EVANT JURISDICTION TO ACT AS ON AO, THE ASSESSMENT ORDER PASSED BY HIM UNDER SECTION 143(3) OF THE ACT DATED 29.12.200 8 IS WITHOUT JURISDICTION, ILLEGAL, BAD IN LAW AND HENCE OUGHT TO BE QUASHED. 11. WE NOTE THAT THIS ISSUE IS SQUARELY COVERED BY THE VARIOUS DECISIONS OF CO-ORDINATE BENCHES OF THIS IT AT IN THE GROUP CONCERN OF ASSESSEE AS NOTED ABOVE. WE, HEREB Y REFER TO THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUN AL IN THE CASE OF TATA COMMUNICATIONS LTD., WHEREIN THIS ISSU E HAD BEEN DEALT AT LENGTH BY THE CO-ORDINATE BENCH OF TH IS TRIBUNAL FOR AY.2002-03. 13. WE HAVE CAREFULLY AND PATIENTLY CONSIDERED ELA BORATE SUBMISSIONS MADE BY BATH THE PARTIES ORALLY AS WELL AS IN WRITING. WE HAVE ALSO APPLIED OUR MIND TO THE DECIS IONS CITED AT THE BAR. SPECIFIC ISSUE RAISED BEFORE US W HICH MERITS CONSIDERATION IS, WHETHER THE ADDL CIT, RANG E-1(3), HAD THE COMPETENCE AND JURISDICTION TO PASS THE ASSESSMENT ORDER IN CASE OF THE ASSESSEE. AS FAR AS THE RELEVANT FACTS ARE CONCERNED, THERE IS NO DISPUTE T HAT THE ASSESSEE WAS UNDER THE ASSESSMENT JURISDICTION OF D Y. CIT- 1(3). IN FACT, THE DCIT, BEING THE 'ASSESSING OFFIC ER' HAD INITIATED ASSESSMENT PROCEEDINGS IN CASE OF THE ASS ESSEE FOR THE IMPUGNED ASSESSMENT YEAR BY ISSUING NOTICE UNDER SECTION 143(2) ON 15TH OCT 2003. BEFORE THAT, HE H AS ALSO PROCESSED THE RETURN OF THE ASSESSEE FOR THE IMPUGN ED ASSESSMENT YEAR AND ISSUED INTIMATION UNDER SECTION 143(1) ON 31ST MARCH 2003. IT IS EVIDENT ON RECORD , SUBSEQUENTLY THE ADDL. CIT, RANGE-1(3), ASSUMED JURISDICTION AS AN ASSESSING OFFICER OF THE ASSESSE E AND ISSUED NOTICES UNDER SECTION 142(1) AND 143(2) ON 9 `' DECEMBER 2004 AND ULTIMATELY COMPLETED THE ASSESSME NT M/S. TATA SONS LTD., (GROUP CASE) : 9 : FOR THE IMPUGNED ASSESSMENT YEAR VIDE ORDER DATED 2 1ST FEBRUARY 2005. THEREFORE, WE HAVE TO EXAMINE FIRSTL Y, WHETHER THERE IS AN ORDER OF TRANSFER OF JURISDICTI ON UNDER SECTION 127 OF THE ACT, FROM THE DCIT, RANGE-1(3) T O THE ADDL. CIT, RANGE-1(3) AND SECONDLY, WHETHER THE ADD L. CIT IS VESTED WITH AUTHORITY/JURISDICTION TO ACT/PERFOR M OR EXERCISE THE POWERS OF AN ASSESSING OFFICER IN RESP ECT OF THE PRESENT ASSESSEE. BEFORE PROCEEDING TO DECIDE THE, ISSUE, IT IS NECESSARY TO EXAMINE CERTAIN PROVISIONS OF THE A CT. THE EXPRESSION 'ASSESSING OFFICER' HAS BEEN DEFINED UND ER SECTION 2(7A) OF THE ACT. THE AFORESAID PROVISION A S IT EXISTED DURING THE RELEVANT PERIOD IS EXTRACTED HEREUNDER F OR CONVENIENCE: DEFINITIONS 2. IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUIR ES, - ......... .......... (7A) 'ASSESSING OFFICER' MEANS THE ASSISTANT COMMIS SIONER OR DEPUTY COMMISSIONER OR ASSISTANT DIRECTOR OR DEP UTY DIRECTOR OR THE INCOME TAX OFFICER WHO IS VESTED WITH THE RE LEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSU ED UNDER SUB- SECTION (1) OR SUB-SECTION (2) OF SECT/ON 120 OR AN Y OTHER PROVISION OF THIS ACT, AND THE ADDITIONAL COMMISSIO NER OR ADDITIONAL DIRECTOR OR JOINT COMMISSIONER OR JOINT DIRECTOR WHO IS DIRECTED UNDER CLAUSE (B) OF SUB-SECTION (4) OF THAT SECTION TO EXERCISE OR PERFORM ALL OR ANY OF THE PO WERS AND FUNCTIONS CONFERRED ON OR ASSIGNED TO, AN ASSESSING OFFICER UNDER THIS ACT. 14. A PLAIN READING OF THE AFORESAID PROVISION MAKE S IT CLEAR THAT IT IS IN TWO PARTS. FIRST LIMB OF THE PROVISIO N SAYS, THE ASSESSING OFFICER WOULD INCLUDE ACIT OR DCJT OR ASS TT. DIRECTOR OR DY. DIRECTOR OR THE INCOME TAX OFFICER WHO IS VESTED WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTION OR ORDERS ISSUED UNDER SUB-SECTION (1) OR (2) OF SECTI ON 120 OR ANY OTHER PROVISION OF THE ACT. THE SECOND LIMB OF THE PROVISION SAYS, THE KIT OR JDIT IF DIRECTED UNDER C LAUSE (B) OF SUB-SECTION (4) OF SECTION 120, CAN PERFORM POWERS AND FUNCTIONS OF AN ASSESSING OFFICER. IT IS RELEVANT T O OBSERVE, THE PROVISIONS OF SECTION 2(7A) UNDERWENT A CHANGE BY VIRTUE OF AMENDMENT BROUGHT BY FINANCE ACT, 2007. AS PER T HE SAID AMENDMENT IN THE SECOND LIMB OF SECTION 2(74) ALONG WITH THE M/S. TATA SONS LTD., (GROUP CASE) : 10 : JCIT AND JDIT, ADDL. CIT /ADDL. DIT WERE ALSO TO BE TREATED AS AN ASSESSING OFFICER IF THEY WERE DIRECTED TO AC T AS AN ASSESSING OFFICER IN TERMS OF SECTION. 120(4)(B). T HIS AMENDMENT BROUGHT TO SECTION 2(7A) WAS WITH RETROSP ECTIVE EFFECT FROM 1ST JUNE 1994. CORRESPONDING TO THE AME NDMENT MADE TO SECTION 2(7A), THE FINANCE ACT, 2007, AMEND ED THE PROVISIONS OF SECTION 120(4)(B), PROVIDING THAT THE BOARD IN WRITING CAN EMPOWER THE CCIT/CIT TO ISSUE ORDERS DI RECTING AN ADDL. CIT/ADIT TO ACT AS AN ASSESSING OFFICER IN RESPECT OF ANY SPECIFIED AREA OR PERSONS OR CLASSES OF PERS ONS OR CLASSES OF INCOME OR CASES OF CLASSES OF CASES WHIC H EARLIER WOULD ONLY BE VESTED WITH JCIT OR JDIT. THIS AMENDM ENT TO SECTION 120(4)(B) BROUGHT BY FINANCE ACT, 2007 WAS ALSO WITH RETROSPECTIVE EFFECT FROM 1ST JUNE 1994. THUS, AS C OULD BE SEEN, FOR ASSIGNING THE WORK OF AN ASSESSING OFFICE R TO THE ADDL. CIT, THE BOARD HAS TO EMPOWER THE CONCERNED CCIT/CIT TO ISSUE ORDER IN WRITING IN TERMS OF SECT ION 120(4)(B) IN RESPECT OF A PARTICULAR ASSESSEE. KEEP ING IN VIEW THE AFORESAID STATUTORY PROVISIONS, WE HAVE TO DECI DE THE ISSUE RAISED BEFORE US. THE SPECIFIC CONTENTION OF THE ASSESSEE IS, AS PER THE PROVISIONS OF SECTION 2(7A) , AS IT EXISTED AT THE RELEVANT PERIOD, ADDL CIT WAS NOT AN ASSESSING OFFICER. IT IS FURTHER SUBMITTED, EVEN OT HERWISE ALSO, THERE IS NO NOTIFICATION / ORDER EMPOWERING T HE ADDL. CIT TO ACT AS AN ASSESSING OFFICER IN TERMS OF SECT ION 121)(4)(B). TO COUNTER THE AFORESAID CONTENTION OF THE ASSESSEE, THE 'EARNED DEPARTMENTAL REPRESENTATIVE H AS RELIED UPON THE FOLLOWING NOTIFICATIONS. I) NOTIFICATION NO.228 OF 2001 DATE 31.072001 II) NOTIFICATION NO.MIC/HQ- 1/JURISDICTION/2001 -02 DT 01.08.2001; III) NOTIFICATION NO. ACIT, RANGE-1(3)/JURISDICTION /2001- 02 DATED 08.08.2001; AND IV) NOTIFICATION NO.267/2001 DATED 17.09.2001 15. AT THIS STAGE, WE PROPOSE TO DEAL WITH EACH OF THE AFORESAID NOTIFICATION RELIED UPON BY THE DEPARTMEN T TO ESTABLISH THE VALID EXERCISE OF JURISDICTION AS AN ASSESSING OFFICER BY THE ADDL. CIT. THE FIRST NOTIFICATION BE ING NOTIFICATION NO.228 OF 2001 DATED 31ST JULY 2001, CORRESPONDING TO NOTIFICATION NO. S.O. 732(E) DATED 31 JULY 2001, IS A NOTIFICATION ISSUED UNDER SUB-SECTION (1 ) AND (2) OF SECTION 120 OF THE ACT AND OBVIOUSLY IS NOT A NOTIF ICATION M/S. TATA SONS LTD., (GROUP CASE) : 11 : ISSUED UNDER CLAUSE (B) OF SUB-SECTION (4) OF SECTI ON 120. AS OBSERVED EARLIER BY US, THE ADDL. CIT WAS NOT INCLU DED AS AN ASSESSING OFFICER EITHER UNDER SECTION 2(7A) OR UND ER SECTION 120(4)(B) EARLIER. ONLY BY VIRTUE OF FINANCE ACT, 2 007, THE AFORESAID PROVISIONS WERE AMENDED BY INCLUDING ADDL . CF AS AN ASSESSING OFFICER. HOWEVER, EVEN AFTER SUCH INCL USION OF ADDL. CIT AS ASSESSING OFFICER WITH RETROSPECTIVE E FFECT FROM 1ST APRIL 1994, SECTION 2(7A) MADE IT CLEAR, ASSTT . CIT, DCIT, ADIT, DDIT, ITO, CAN ACT AS AN ASSESSING OFFICER IF THEY ARE VESTED WITH RELEVANT JURISDICTION BY VIRTUE OF DIRE CTIONS AND ORDERS ISSUED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 120. WHEREAS, AS FAR AS ADDL. CIT, ADDL. DI T, JCIT, JDIT ARE CONCERNED, THEY CAN EXERCISE POWERS AND FU NCTIONS OF AN ASSESSING OFFICER, ONLY, IF THEY ARE DIRECTED TO DO SO UNDER CLAUSE (B) OF SUB-SECTION (4) OF SECTION 120. THUS, VESTING OF POWER OF ASSESSING OFFICER ON DIFF ERENT INCOME TAX AUTHORITIES HAVE BEEN SPECIFICALLY DEMA RCATED UNDER SECTION 120 OF THE ACT. A CONJOINT READING OF SECTION 2(7A) AN SECTION 120 WOULD MAKE IT CLEAR, AS FAR AS ACIT, ADIT, DCIT, ADIT; DDIT AND ITO ARE CONCERNED, THEY HAVE TO BE VESTED WITH THE POWER OF ASSESSING OFFICER UNDER SECTION 120(1) OR (2), WHEREAS, ADDI. CIT, ADDL. DIT, KIT, MIT CAN BE VESTED WITH THE POWER OF ASSESSING OFFICER UNDER SE CTION 120(4)(B). IN A NOTIFICATION ISSUED UNDER SECTION 1 20(1) AND 120(2), ADDL. CIT CANNOT BE VESTED WITH POWER TO AC T AS AN ASSESSING OFFICER. THEREFORE, NOTIFICATION NO.228 O F 2001 DATED 31' JULY 2001, CANNOT BE SAID TO BE VESTING P OWER OF ASSESSING OFFICER WITH THE ADDL. CIT. SIMILAR IS TH E SITUATION WITH NOTIFICATION DOTED 1ST AUGUST 2001, ISSUED BY THE CIT, MUMBAI, AS IT IS A NOTIFICATION ISSUED UNDER SECTIO N 120(1) AND 120(2) AND NOT UNDER SUB-SECTION (4)(B). THE TH IRD NOTIFICATION DATED 8TH AUGUST 2001, HAS BEEN ISSUE D BY THE ADDL. CIT, RANGE-.1(3), MUMBAI, VESTING JURISDICTIO N UPON HIMSELF TO ACT AS AN ASSESSING OFFICER. CERTAINLY, THIS NOTIFICATION IS NOT IN CONFORMITY WITH THE PROVISIO NS CONTAINED UNDER SECTION 120(4)(B), INASMUCH AS, THIS NOTIFICA TION HAS BEEN ISSUED UNDER SECTION 120(1) AND 120(2) AND NOT U/S.(4)(B) OF SECTION 120. THE LAST NOTIFICATION RE LIED UPON BY THE DEPARTMENT IS NOTIFICATION NO.267/2001 DATED 17 TH SEPTEMBER 2001. A PERUSAL OF THE AFORESAID NOTIFICA TION, A COPY OF WHICH HAS BEEN PLACED IN THE DEPARTMENTAL P APER BOOK SHOWS THAT THIS NOTIFICATION HAS BEEN ISSUED B Y THE BOARD UNDER SECTION 120.(B) DIRECTING JCIT/IDIT TO EXERCISE POWERS AND FUNCTIONS OF THE ASSESSING OFFICER. IT DOES NOT MENTION ADDL. CIT / ADDL. DIRECTOR OF INCOME TAX IN ANY CASE OF THE MATTER AT THE TIME OF ISSUANCE OF THIS NOTIF ICATION, ADDL. M/S. TATA SONS LTD., (GROUP CASE) : 12 : CIT WAS NOT TREATED AS AN ASSESSING OFFICER EITHER UNDER SECTION 2(7A) OR UNDER SECTION 120(4)(B) AS THE AME NDMENT INCLUDING ADDL.. CIT, AS AN ASSESSING OFFICER WAS B ROUGHT TO THE STATUTE BY FINANCE ACT, 2007, THOUGH, WITH RETR OSPECTIVE EFFECT FROM 1ST APRIL 1994. THEREFORE, UNDER NO CIRCUMSTANCES, THE BOARD NOTIFICATION DATED 17TH S EPTEMBER 2001, CAN BE SAID TO HAVE CONFERRED THE JURISDICTIO N OF ASSESSING OFFICER ON ADDL. CIT. IN THIS CONTEXT, IT IS NECESSARY TO DEAL WITH THE ARGUMENT OF THE DEPARTMENT THAT AS PER THE DEFINITION OF JCIT UNDER SECTION 2(28C), IT INCLUDE S ADDL. CIT, THEREFORE, THE NOTIFICATION DATED 17TH SEPTEMBER 20 01, ISSUED UNDER SECTION 120(4)(B) ALSO COVERS THE ADDL. CIT. WE ARE NOT CONVINCED WITH THE AFORESAID SUBMISSIONS OF THE DEPARTMENT. HAD IT BEEN THE INTENTION OF THE LEGISL ATURE TO TREAT THE ADDL. CIT AS JCIT AND, IN TURN, AS ASSESSING OFFICER UNDER SECTION 2(7A) R/W SECTIO N 120(4)(B), THERE WAS NO NECESSITY TO AMEND THE PROV ISIONS OF SECTION 2(7A) AND 120(4)(B) SPECIFICALLY INCLUDING THE ADDL. CIT AND ADDL. DIT, SINCE JCIT AND JDIT WERE ALREADY INCLUDED AS ASSESSING OFFICER UNDER BOTH THE PROVIS IONS. THIS CLARIFIES THE INTENTION OF LEGISLATURE IN NOT TREAT ING JCIT AND ADDL. CIT AS ONE. THUS, THE DEPARTMENT HAS FAILED T O BRING TO OUR NOTICE ANY NOTIFICATION ISSUED IN CONFORMITY WI TH SECTION 120(4)(B) EMPOWERING THE ADD!. CIT, RANGE-1(3), TO ACT AS AN ASSESSING OFFICER IN RESPECT OF PRESENT ASSESSEE. T HE NOTIFICATIONS RELIED UPON BY THE LEARNED DEPARTMENT AL REPRESENTATIVE ARE NOT UNDER SECTION 120(4)(B). AS FAR AS NOTIFICATION DATED 17TH SEPTEMBER 2001 OF THE BOARD IS CONCERNED, THOUGH, IT IS ISSUED UNDER SECTION 120(4 )(B) OF THE ACT, HOWEVER, IT AUTHORIZES ONLY THE JCIT AND JDIT TO EXERCISE THE POWERS AND FUNCTION OF THE ASSESSING OFFICER AN D IT IS NOT IN RESPECT OF ADDL. CIT OR ADDL. DIT. THUS, NONE OF THESE NOTIFICATIONS CAN VALIDLY AUTHORIZE OR EMPOWER THE ADDL. CIT, RANGE-1(3) TO ACT AS AN ASSESSING OFFICER IN THE PR ESENT CASE. IN CASE OF MEGA CORPORATION LTD. VS. ACIT, [2015] 1 55 ITD 1019, THE TRIBUNAL WHILE DECIDING IDENTICAL ISSUE O F EXERCISE OF POWERS AND FUNCTIONS OF ASSESSING OFFICER BY ADD L. CIT DEALT WITH THE AFORESAID NOTIFICATIONS RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AND FOLLOWING T HE DECISION OF THE HON'BLE DELHI HIGH COURT IN VALVOLI NE CUMMINS V/S DCIT, [2008] 307 FUR 103 (DEL) HELD THA T WITHOUT A NOTIFICATION UNDER SECTION 120(4)(B) AUTH ORIZING THE ADDL. CIT TO EXERCISE THE POWERS AND FUNCTIONS OF T HE ASSESSING OFFICER, ASSESSMENT ORDER PASSED BY THE A DDL. CIT IS WITHOUT JURISDICTION, HENCE, INVALID. MOREOVER, IT WAS HELD THAT ONCE A PROCEEDING HAS BEEN INITIATED BY AN OFF ICER M/S. TATA SONS LTD., (GROUP CASE) : 13 : HAVING VALID JURISDICTION, WITHOUT ANY ORDER OF TRA NSFER UNDER SECTION 127 OF THE ACT, THE ADDL CIT CANNOT BE VEST ED WITH POWER TO FUNCTION AS ASSESSING OFFICER. THE TRIBUNA L NEGATED THE CONTENTION OF THE DEPARTMENT REGARDING EXERCISE OF CONCURRENT JURISDICTION BY BOTH THE OFFICERS. IT WA S HELD BY THE BENCH THAT THERE IS A DISTINCTION BETWEEN CONCURRENT EXER CISE OF POWER AND JOINT EXERCISE OF POWER. THE BENCH HELD W HEN POWER HAS BEEN CONFERRED UPON TWO AUTHORITIES CONCU RRENTLY, EITHER ONE OF THEM CAN EXERCISE SUCH POWER AND ONCE A DECISION IS TAKEN TO EXERCISE THE POWER BY ANY ONE OF THOSE AUTHORITIES THAT EXERCISE MUST BE TERMINATED BY THA T AUTHORITY ONLY. IN FACT ON A CAREFUL PERUSAL OF THE ORDERS PA SSED BY THE TRIBUNAL IN CASE OF MEGA CORPORATION LTD. (SUPRA) A ND TATA SONS LTD. (SUPRA) WE ARE OF THE VIEW THAT THE ARGUMENTS/CONTENTIONS RAISED BY THE DEPARTMENT IN T HE PRESENT APPEAL RELYING UPON CERTAIN NOTIFICATIONS H AVE BEEN EXHAUSTIVELY DEALT WITH BY THE TRIBUNAL IN THESE DE CISIONS AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THOUGH, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED T HAT THE DECISIONS OF MEGA CORPORATION LTD. (SUPRA) AND TATA SONS LTD (SUPRA) SHOULD NOT BE RELIED UPON, HOWEVER, WE ARE OF THE CONSIDERED VIEW THAT THESE DECISIONS OF THE TRIBUNA L HAVE BEEN RENDERED MORE OR LESS ON IDENTICAL FACTS AND I SSUES AND AFTER CONSIDERING THE VERY SAME NOTIFICATIONS RELIE D UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IN THE PRES ENT CASE AND THE TRIBUNAL HAS ULTIMATELY CONCLUDED THAT IN A BSENCE OF A VALID NOTIFICATION UNDER SECTION 120(4)(B) THE AD DL. CIT CANNOT EXERCISE POWER OF AN ASSESSING OFFICER. IN THIS CONTEXT, IT IS NECESSARY TO REPRODUCE THE OBSERVATI ONS OF THE BENCH IN THE CASE OF TAB SONS LTD. (SUPRA) HEREUNDE R:-. 3.11. ADMISSION OF ADDITIONAL GROUNDS: THE ASSESSEE HAS CHALLENGED LEGAL COMPETENCE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX TO ACT AS AN ASSESSING OFFICER OF THE ASSESSEE AND TO PASS THE I MPUGNED ASSESSMENT ORDER BY WAY OF ADDITIONAL GROUNDS. THE ISSUE RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE MATT ER AND SEEKS TO SHAKE THE VERY SUSTAINABILITY OF THE IMPUG NED ASSESSMENT ORDER IN THE EYES OF LAW. DURING THE COU RSE OF HEARING, IT WAS SHOWN BY THE LD. SENIOR COUNSEL OF THE ASSESSEE THAT LAW IN THIS REGARD HAS BEEN DEVELOPED RECENTLY. MOREOVER, THIS FACT WAS NOT IN THE KNOWLE DGE OF THE ASSESSEE THAT THE ADDITIONAL COMMISSIONER OF INCOME TAX HAD ASSUMED JURISDICTION TO FRAME THE IMPUGNED ASSE SSMENT ORDER WITHOUT THE AUTHORITY OF LAW AND WITHOUT THER E BEING M/S. TATA SONS LTD., (GROUP CASE) : 14 : ANY ORDER FROM THE COMMISSIONER OF INCOME TAX AUTHO RIZING HIM TO ACT AS ASSESSING OFFICER OF THE ASSESSEE. UN DER THESE CIRCUMSTANCES, IT IS' BOUNDEN DUTY OF THE REVENUE T O ESTABLISH LEGAL COMPETENCE AND AUTHORITY OF THE OFF ICER PASSING THE ASSESSMENT ORDER, IF SO CHALLENGED BY A N ASSESSEE AT ANY STAGE. 3.12. WE HAVE EXAMINED THIS ISSUE. IT IS WELL ACCEP TED POSITION THAT THE TRIBUNAL IS A FINAL FACT FINDING BODY. REQUISITE DOCUMENTS REQUIRED FOR ESTABLISHING LEGAL AUTHORITY OF THE ASSESSING OFFICER WHO HAD PASSED THE ASSESSMENT ORD ER ARE EXPECTED TO BE AVAILABLE IN THE ASSESSMENT RECORDS. THUS, THE LEGAL ISSUE RAISED BY THE ASSESSEE FALLS IN THE CAT EGORY OF CASES WHICH CAN BE DECIDED ON THE BASIS OF MATERIAL HELD ON RECORD. 3.13 FURTHER, IT IS NOTED BY US THAT THE AFORESAID GROUNDS ARE PURELY LEGAL GROUNDS AND DO NOT REQUIRE ANY INVESTI GATION OF FRESH FACTS AND CAN BE DECIDED ON THE BASIS OF RECO RDS HELD ON RECORD. IT HAS BEEN, HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION 229 ITR 383 AS WELL AS ' THE OTHER JUDGMENTS AS HAVE BEEN RELIE D UPON BY THE LD. COUNSEL IN ITS PETITION THAT ASSESSEE SHOUL D BE PERMITTED TO RAISE LEGAL GROUNDS AT ANY STAGE, IF T HEY GO TO THE ROOT OF THE MATTER. 3.14. REVENUE'S ARGUMENT TO REJECT THE ADDITIONAL G ROUNDS DUE TO ACQUIESCENCE AND PARTICIPATION OF THE ASSESS EE IN ASSESSMENT PROCEEDINGS: IT WAS CONTENDED BY THE LD. CIT-DR THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAD MADE PARTICIPA TION IN THE PROCEEDINGS. THEREFORE, ASSESSEE CANNOT HE ALLO WED TO CHALLENGE JURISDICTIONAL DEFECT IN THE ASSESSMENT O RDER AT THIS STAGE. WE HAVE CONSIDERED THIS ASPECT VERY CAREFULL Y. THE ASSESSEE HAS CHALLENGED BEFORE US AUTHORITY OF THE OFFICER TO PASS THE IMPUGNED ASSESSMENT ORDER. IT IS BOUNDEN D UTY OF THE REVENUE TO ESTABLISH THE AUTHORITY AND LEGAL CO MPETENCE OF, ITS OFFICER TO PASS THE ASSESSMENT ORDER, AS AN D WHEN IT IS CALLED UPON TO DO SO. NO ORDER CAN BE SUSTAINED IN THE EYES OF LAW IF ITS AUTHOR DOES NOT HAVE REQUISITE SANCTION OF THE LAW. IF AN ORDER DOES NOT POSSESS REQUISITE STRENGTH IN THE EYES OF LAW AND IS VOID AB-INITIO THEN IT WILL REMAIN SO EV EN IF THERE IS ACQUIESCENCE OR PARTICIPATION BY THE ASSESSEE IN TH E PROCEEDINGS CARRIED OUT BY THE AO TO FRAME THE ASSE SSMENT ORDER. IT IS WELL SETTLED LAW THAT CONSENT OF THE A SSESSEE M/S. TATA SONS LTD., (GROUP CASE) : 15 : CANNOT CONFER JURISDICTION TO AN ASSESSING OFFICER WHO LACKED JURISDICTION UNDER THE LAW. SIMILARLY, VICE VERSA I S ALSO TRUE I.E. ABSENCE OF CONSENT OF THE ASSESSEE SHALL NOT T AKE AWAY JURISDICTION FROM AN ASSESSING OFFICER WHO ACTUALLY POSSESSED A VALID JURISDICTION IN THE EYES OF LAW. THUS, LEGAL COMPETENCE OF THE OFFICER WHO PASSED THE ASSESSMENT ORDER AS WELL AS VALIDITY OF THE ASSESSMENT ORDER MUST BE EXAMINED ON THE BASIS OF FACTUAL ANALYSIS AND PROVI SIONS OF LAW AND NOT ON THE BASIS OF CONDUCT OF THE ASSESSEE . THIS ISSUE IS NOT RES-INTEGRA. IMMEDIATE REFERENCE IN TH IS REGARD CAN BE MADE ON THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPORATION LIM ITED VS. CIT 194 ITR 548 (BOMBAY). SIMILAR VIEW WAS TAKEN BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSH I VS. CIT 113 ITR 22 (GUI). RECENTLY HON'BLE DELHI HIGH COURT HANDLED A SIMILAR SITUATION IN THE CASE OF VALVOLINE CUMMIN S LTD 307 ITR 103 (DEL) WHEREIN CHALLENGE WAS MADE TO THE JUR ISDICTION OF ADDITIONAL COMMISSIONER OF INCOME TAX WHO HAD PA SSED THE ASSESSMENT ORDER. IT WAS CONTENDED ON BEHALF OF THE REVENUE THAT CHALLENGE OF JURISDICTION MUST BE MADE WITHIN THE STIPULATED TIME DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN VIEW OF RESTRICTIONS IMPOSED BY THE PROVISIONS CONTAINED IN SECTION 124 OF THE ACT HON'BLE DELHI H IGH COURT IN THE AFORESAID CASE HELD AS UNDER: - 'THIS IS WELL SETTLED THAT MERE ACQUIESCENCE IN THE EXERCISE OF POWERS BY A PERSON WHO DOES NOT HAVE JURISDICTION TO EXERCISE THAT POWER CANNOT WORK AS AN ESTOPPEL AGAINST HIM.' 3.15. IT IS FURTHER NOTED BY US THAT IN THE CASE BE FORE US, A CHALLENGE HAS BEEN MADE ABOUT THE LEGAL COMPETENCE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX AND HIS JURIS DICTION TO EXERCISE THE POWERS AND PERFORM THE FUNCTIONS OF TH E ASSESSING OFFICER OF THE ASSESSEE AND TO CARRY OUT THE ASSESSMENT PROCEEDINGS AND FRAME THE ASSESSMENT ORD ER IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME TAX AC T, 1961. THUS, RELIANCE, UPON THE PROVISIONS CONTAINED IN SE CTION 124 OF THE ACT WOULD BE OF NO HELP TO THE REVENUE AS TH E ASSESSEE HAS NOT CHALLENGED EITHER TERRITORIAL JURISDICTION OR IRREGULAR EXERCISE OF JURISDICTION BY THE ADDITIONAL COMMISSI ONER OF INCOME TAX BUT CHALLENGE WAS MADE TO THE AUTHORITY AND LEGAL COMPETENCE ITSELF OF THE ADDITIONAL COMMISSIO NER OF INCOME TAX TO PASS THE IMPUGNED ASSESSMENT ORDER UP ON THE ASSESSEE. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF ITAT IN THE CASE OF MEGA CORPORATION LTD VS. ADDITI ONAL CIT 155 LTD 1019 (DELHI) FOLLOWING THE JUDGMENT OF HON' BLE DELHI HIGH COURT IN THE CASE OF VALVOLINES CUMMINS LTD, S UPRA. M/S. TATA SONS LTD., (GROUP CASE) : 16 : 3.16. IN VIEW OF THE FACTS AND CIRCUMSTANCES, OF TH IS CASE AND THE JUDGMENTS OF HON'BLE SUPREME COURT AND HON'BLE BOMBAY HIGH COURT RELIED UPON BY THE LD. COUNSEL IN ITS PETITION AS MENTIONED ABOVE, WE FIND THAT THESE ADD ITIONAL GROUNDS DESERVE TO BE AN ADMITTED AND THEREFORE, TH ESE ARE ADMITTED FOR OUR ADJUDICATION. 3.17. SINCE THE ADDITIONAL GROUNDS GO TO THE ROOT O F THE MATTER AND CHALLENGE JURISDICTIONAL VALIDITY OF THE ORDER, THEREFORE, WE FIND IT APPROPRIATE TO FIRST DEAL WITH THE SAME BEFORE DECIDING THE APPEAL ON MERITS. IT HAS BEEN ARGUED A T LENGTH BY THE LD. SENIOR COUNSEL OF THE ASSESSEE THAT IN T HIS CASE FIRST NOTICE OF ASSESSMENT PROCEEDINGS INTIMATING CHANGE OF JURISDICTION WAS ISSUED BY ACIT CIRCLE 2(3) MUMBAI, DATED 5TH SEPTEMBER 2001 WHEREIN IT WAS CLAIMED THAT THE JURI SDICTION OF ASSESSMENT WAS WITH THE SAID OFFICER. SUBSEQUENT LY, NOTICE U/S 143(2) WAS ISSUED BY THE DCIT DATED 01.1 2.2003. THEREAFTER A QUESTIONNAIRE WAS ISSUED BY THE ADDITI ONAL COMMISSIONER OF INCOME TAX RANGE-2(3), MUMBAI DATED 10TH FEBRUARY 2004 AND FINALLY THE ADDITIONAL COMMISSION ER OF INCOME TAX FRAMED THE ASSESSMENT ORDER. HE TOOK US THROUGH THE VARIOUS PROVISIONS OF INCOME TAX ACT TO IMPRESS UPON THE POINT THAT ADDITIONAL COMMISSIONER OF INCOME TAX WA S NOT LEGALLY COMPETENT TO ACT AS ASSESSING OFFICER AND T O PASS ASSESSMENT ORDERS. HE REFERRED TO PROVISIONS OF SEC TION2(7A) WHICH PROVIDE DEFINITION OF THE TERM 'ASSESSING OFF ICER'. HE ALSO REFERRED TO THE PROVISIONS OF SECTION 2(28C) W HICH DEFINES JOINT COMMISSIONER OF INCOME TAX. IT WAS ARGUED THA T IN THE DEFINITION OF ASSESSING OFFICER EARLIER ONLY JOINT COMMISSIONER WAS PROVIDED AND ADDITIONAL COMMISSION ER WAS INSERTED SUBSEQUENTLY. IT WAS FURTHER SUBMITTED THAT ONLY THOSE JOINT COMMISSIONERS/ADDITIONAL COMMISSIO NERS WERE COMPETENT TO PASS THE ASSESSMENT ORDER WHO WER E AUTHORIZED TO ACT AN ASSESSMENT OFFICER AS PER CLAU SE (B) OF SUB-SECTION 4 OF SECTION 120. IT WAS VEHEMENTLY ARG UED THAT THE ADDITIONAL COMMISSIONER WHO PASSED THE IMPUGNED ASSESSMENT ORDER WAS NOT HAVING ANY AUTHORITY ISSUE D FROM THE BOARD OR THE JURISDICTIONAL COMMISSIONER OF INC OME TAX TO ACT AS AN ASSESSING OFFICER AND TO PASS AN ASSESSME NT ORDER IN THE CASE OF THE ASSESSEE. HE ALSO TOOK US THROUG H PROVISIONS OF SECTION 120 TO ARGUE THAT ADDITIONAL COMMISSIONER OR JOINT COMMISSIONER COULD HAVE EXERC ISED THE POWER OF AN ASSESSING OFFICER ONLY IF THEY WERE SO AUTHORIZED SPECIFICALLY BY THEIR JURISDICTIONAL COM MISSIONER. IN SUPPORT OF HIS PROPOSITION, HE RELIED UPON FOLLO WING JUDGMENTS: M/S. TATA SONS LTD., (GROUP CASE) : 17 : MEGA CORPORATION V: ADDL.CIT (62 TAXMANN.COM 351 (DEL. ITAT); BINDAL APPARELS LTD. ACIT 104 TTJ 950(DEL); CITY GARDEN VS. ITO (21 TAXMANN.COM 373 (JODHPUR IT AT); MICRO FIN SECURITIES (P) LTD. VS ADDL. CIT 1 SOT 30 2 (LUK.); PRACHI LEATHERS LTD. 26L/LUK/2010 IN ITA NO. 744/LUK/2004 ORDER DT. 29.03.2010 FARVINDER SINGH JAGGI VS. ACIT 67 TAXMANN.COM 109(D EL ITAT); DR. NALINI MAHAFAN VS. OFT (INV.) 257 ITR 123(DEL. HC); GHANSH YAM K. KHABRANI VS. ACIT 346 ITR 443(BOM. HC ) CIT VS. SPL'S SIDDHARTHA LTD. 345 ITR 223 (DEL. HC) 3.18. PER CONTRA, LD. CIT-DR, WITH THE ASSISTANCE O F LD. AO, VEHEMENTLY OPPOSED THE SUBMISSIONS OF THE LD. SENIO R COUNSEL AND ARGUED THAT ALL THE ADDITIONAL' COMMISS IONERS HAVE CONCURRENT JURISDICTION UPON ALL THE ASSESSES FALLING IN THEIR RESPECTIVE RANGES AND THEREFORE, ADDITIONAL COMMISSIONER WAS WELL WITHIN HIS COMPETENCE TO PASS THE IMPUGNED ASSESSMENT ORDER. IT WAS FURTHER SUBMITTED THAT AS PER SECTION 2(28C), JOINT COMMISSIONER INCLUDES ADD ITIONAL COMMISSIONERS ALSO. IT WAS FURTHER SUBMITTED THAT S ECTION 2(7A) WAS AMENDED RETROSPECTIVELY AND THE WORD 'ADD ITIONAL COMMISSIONER' WAS ALSO INSERTED ALONG WITH WORD 70/ NT COMMISSIONER' BY FINANCE ACT, WITH RETROSPECTIVE E FFECT FROM 01.06.1994..IN RESPONSE TO THE QUERY, LD. CIT-DR FA IRLY SUBMITTED THAT HE WAS NOT ABLE TO T ANY ORDER FROM THE BOARD OR CHIEF COMMISSIONER OF TAX OR JURISDICTIONAL COM MISSIONER OF INCOME TAX AUTHORIZING THE PRESENT ADDITIONAL COMMISSIONER OF INCOME TAX TO ACT AS AN ASSESSING O FFICER AND TO PASS ASSESSMENT ORDER. BUT, HE MAINTAINED TH AT EVEN WITHOUT AND SUCH SPECIFIC ORDER, THE ADDITIONAL COM MISSIONER WAS LEGALLY COMPETENT TO PASS THE IMPUGNED ASSESSME NT ORDER. 3.19. IN REJOINDER, LD. SENIOR COUNSEL OF THE ASSES SEE AGAIN TOOK US THROUGH ALL THE PREVIOUS ORDER SHEET ENTRIE S RECORDED BY THE BENCH ON EARLIER DATES WHEREIN BENCH HAD REP EATEDLY DIRECTED AND HAD GIVEN OPPORTUNITY TO THE DEPARTMEN T TO M/S. TATA SONS LTD., (GROUP CASE) : 18 : PRODUCE IF THERE WD5 ANY ORDER AUTHORIZING THE ADDI TIONAL COMMISSIONER OF INCOME TAX TO PASS IMPUGNED ASSESSM ENT ORDER, IT WAS FURTHER SUBMITTED BY HIM THAT ASSESSE E IS NOT CHALLENGING TERRITORIAL JURISDICTION OF THE ASSESSE E; BUT THE ASSESSEE IS CHALLENGING LEGAL COMPETENCE OF THE OFF ICER TO PASS THE IMPUGNED ASSESSMENT ORDER AND IT CAN BE DO NE AT ANY STAGE. UNDER THESE CIRCUMSTANCES, THE RESTRICTI ON PROVIDED U/S 124 WAS NOT APPLICABLE. IF THE LEGAL C OMPETENCE OF THE OFFICER IS CHALLENGED, THEN IT IS FOR THE RE VENUE TO ESTABLISH THAT THE OFFICER WAS LEGALLY AUTHORIZED T O. PASS THE ASSESSMENT ORDER. IT WAS LASTLY ARGUED THAT CASE OF THE ASSESSEE WAS SQUARELY COVERED IN VIEW OF VARIOUS JU DGMENT RELIED UPON BY THE COUNSEL WHEREIN IT HAS BEEN INTE R ALIA HELD THAT IF THE LAW MANDATES A PARTICULAR ACT TO BE DON E IN A PARTICULAR MANNER, THEN THAT ACT SHOULD BE DONE BY THE CONCERNED AUTHORITIES IN THAT MANNER ALONE AS HAS B EEN PRESCRIBED UNDER THE LAW, ELSE IT SHALL BE DEEMED T HAT THE SAID ACT HAS NEVER BEEN DONE. HE REQUESTED FOR QUAS HING THE ASSESSMENT ORDER ON THE GROUND THAT SAME WAS PASSED WITHOUT AUTHORITY OF LAW AND WAS VOID AB-INITIO. 3.20. WE HAVE GONE THROUGH ALL THE FACTS AND CIRCUM STANCES OF THE CASE. IT IS NOTED BY US THAT FOR THE IMPUGNE D ASSESSMENT YEAR; AFTER THE RETURN WAS FILED BY THE ASSESSEE, A NOTICE WAS ISSUED BY THE ACIT CIR-2(3), MUM BAL, DATED 5TH SEPTEMBER 2091, INTIMATING THE ASSESSEE ABOUT CHANG E IN JURISDICTION AND CLAIMING THAT JURISDICTIONAL WAS W ITH THE SAID OFFICER. THE RELEVANT PART OF THE SAID NOTICE IS REPRODUCED HEREUNDER: 'SUB: CHANGE IN JURISDICTION-INTIMATION REGARDING IN TERMS OF NOTIFICATION NO. SO NO. 732(E) DATED 31 .7.2001 OF CENTRAL BOARD OF DIRECT TAXES AND CONSEQUENTIAL NOT IFICATION DATED 7.8.2001 OF CIT. MC-11, MUMBAI, JURISDICTION OVER YOUR CASE WITH EFFECT FROM 1.8.2001 VESTS WITH THE UNDE RSIGNED. ALL IT./W.T. AND INTEREST TAX RETURNS AND NECESSARY CORRESPONDENCE ON THAT ACCOUNT ARE THEREFORE REQUIR ED TO BE FILED WITH THE UNDERSIGNED. ALL PAYMENTS TOWARDS IN COME-TAX (BY WAY OF ADVANCE TAX, REGULAR TAX OR S.A. TAX), I NTEREST TAX, WEALTH TAX AND PAYMENT U/S. 115-0 OF THE I.T. ACT A RE ALSO TO BE MADE W.E.F. 1.8.2001 TO THE CREDIT OF THE ACIT C IRCLE 7(3). MUMBAI 2. SIMILARLY, JURISDICTION OVER THE MANAGING DIRECT OR, DIRECTOR, MANAGER; AND SECRETARY OF YOUR COMPANY ALSO VESTS W ITH THE UNDERSIGNED VIDE NOTIFICATIONS QUOTED SUPRA. CONSEQ UENTLY, M/S. TATA SONS LTD., (GROUP CASE) : 19 : ALL THE RETURNS OF THE ABOVE PERSONS AND FOLLOW UP CORRESPONDENCES ON THAT ACCOUNT ARE TO BE MADE WITH THE UNDERSIGNED. ALL PAYMENTS TOWARDS INCOME-TAX AND WE ALTH- TAX WEF 01.08.2001 OF THE ABOVE PERSONS ARE ALSO TO BE MADE TO THE CREDIT OF ACIT CIR. 2(3) MUMBAI. THIS MAYBE CAREFULLY NOTED. YOUR'S FAITHFULLY SD/- (JAGADISH PRASAD JANGID) ACIT CIT 2(3), MUMBAI 3.21. THUS, FROM THE ABOVE, IT IS CLEAR THAT INITIA LLY THE JURISDICTION WAS WITH ACIT CIR. 2(3), MUMBAI, FOR P ASSING THE ASSESSMENT ORDER. SUBSEQUENTLY, A NOTICE U/S 143(2) WAS ISSUED BY DCIT CIR. 2(3) DATED 01. 12.2003 WHO WAS INDEED SUCCESSOR TO THE FIRST OFFICER. SUBSEQUENTLY, ASSES SEE RECEIVED A QUESTIONNAIRE DATED 10TH DECEMBER, 2004 FROM THE ADDITIONAL CIT RANGE 2(3) MUMBAI. APPARENTLY, ADDIT IONAL COMMISSIONER OF INCOME TAX WAS NOT SUCCESSOR. OF ACIT/DC1T WHO HAD ISSUED EARLIER NOTICE. BUT, THE A SSESSEE HAS CONTENDED THAT THERE IS NOTHING ON RECORD TO SH OW AS TO HOW THE ADDITIONAL COMMISSIONER OF INCOME TAX BECAM E AO OF THE ASSESSEE AND PASSED THE IMPUGNED ASSESSMENT ORDER. 3.22. THUS, THE FIRST ISSUE RAISED BY THE ASSESSEE BEFORE US IS THAT IN THIS CASE ASSESSMENT PROCEEDINGS WERE INITI ATED BY THE ASSISTANT COMMISSIONER OF INCOME TAX BUT WERE T AKEN OVER IN THE MIDDLE OF THE PROCEEDINGS BY THE ADDITI ONAL COMMISSIONER OF INCOME TAX AND COMPLETED BY HIM WIT HOUT THERE BEING ANY VALID TRANSFER OF JURISDICTION FROM THE ASSISTANT COMMISSIONER OF INCOME TAX TO THE ADDITIO NAL COMMISSIONER OF INCOME TAX, AS REQUIRED UNDER SECTI ON 127 OF THE INCOME TAX ACT. IN THIS REGARD, LD.CIT-DR WA S OF THE VIEW THAT THE ADDITIONAL COMMISSIONER OF INCOME TAX AND ASSISTANT COMMISSIONER OF INCOME TAX HAVE CONCURREN T JURISDICTION OVER THE ASSESSEE. IN OUR VIEW, CONTEN TION OF LD. CIT-DR IS NOT VALID AS IT IS NOT BASED UPON CORRECT APPRECIATION OF THE LAW. IT APPEARS THAT REVENUE HA S MISUNDERSTOOD AND MISS-APPLIED THE VERY CONCEPT OF CONCURRENT JURISDICTION' AND HAS IGNORED THE DISTI NCTION BETWEEN THE 'CONCURRENT JURISDICTION' AND JOINT JUR ISDICTION'. WHEN WE TALK ABOUT ASSIGNMENT OF CONCURRENT JURISDI CTION' TO TWO OFFICERS OF DIFFERENT HIERARCHY, IT DOES NOT ME AN CHAR BOTH THE OFFICERS CAN SIMULTANEOUSLY OR JOINTLY WORK UPO N THE ASSESSMENT PROCEEDINGS OF SAME ASSESSEE. BUT IT MEA NS THAT M/S. TATA SONS LTD., (GROUP CASE) : 20 : BOTH THE OFFICERS ARE LEGALLY ELIGIBLE FOR ASSIGNME NT OF JURISDICTION OF THE ASSESSMENT PROCEEDINGS OF AN AS SESSEE AND, THEREFORE, ANY ONE OF THESE OFFICERS CAN BE AS SIGNED THE JURISDICTION BY THE HIGHER AUTHORITY. BUT, EXERCISE OF THE JURISDICTION BETWEEN BOTH THE OFFICERS SHALL ALWAYS BE MUTUALLY EXCLUSIVE TO EACH OTHER. IF THE JURISDICTI ON HAS BEEN ASSIGNED TO ONE OF THE OFFICERS, IT SHALL NOT BE EX ERCISED BY THE OTHER, AND LITHE JURISDICTION IS TAKEN AWAY FROM TH E FORMER OFFICER AND ASSIGNED TO THE LATTER, THEN IT SHALL B E EXERCISED BY THE LATTER ONLY AND. HOT BY THE FORMER. THUS, TH E JURISDICTION CAN BE EXERCISED BY ONLY ONE ASSESSING OFFICER AT ANY GIVEN POINT OF TIME WHO HAS BEEN DULY ASSIGNED THE JURISDICTION BY. THE COMPETENT AUTHORITY. THE ASSIG NMENT OF JURISDICTION TO AN OFFICER AND ITS TRANSFER FROM ON E OFFICER TO THE OTHER CAN BE MADE ONLY THROUGH THE PRESCRIBED P ROCESS OF LAW. SECTION 127 OF THE ACT CONTAINS PROVISIONS REG ARDING PROCESS TO BE FOLLOWED BY THE REVENUE OFFICERS AND THEIR POWERS FOR TRANSFER OF CASES FROM ONE ASSESSING OFF ICER TO THE OTHER. SECTION 127(1)INTER-ALIA PROVIDES AND MANDAT ES THAT THE COMMISSIONER MAY AFTER RECORDING HIS REASONS FO R DOING SO, TRANSFER ANY -CASE FROM ONE ASSESSING OFFICER S UBORDINATE TO HIM TO ANY OTHER ASSESSING OFFICER (WHETHER WITH OR WITHOUT CONCURRENT JURISDICTION) ALSO SUBORDINATE T O HIM. THUS, MANDATORY REQUIREMENT OF THE LAW IN THIS REGA RD IS THAT AN ORDER IN WRITING MUST BE PASSED BY THE JURISDICT IONAL COMMISSIONER OF INCOME TAX FOR EFFECTING TRANSFER O F ASSESSMENT PROCEEDINGS FROM ONE ASSESSING OFFICER T O THE OTHER. LAW IN THIS REGARD WAS EXPLAINED IN DETAIL B Y HON'BLE DELHI HIGH COURT IN THE CASE OF VALVOLINES CUMMINS; SUPRA SIMILAR VIEW WAS TAKEN BY THE DELHI BENCH OF THE TR IBUNAL IN THE CASE OF MEGA CORPORATION LTD. VS. ADDITIONAL CI T, SUPRA FOLLOWING THE AFORESAID JUDGMENT OF THE DELHI HIGH COURT. RELEVANT PART OF ORDER IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE:- .9 ANOTHER CONTENT/ON SPECIFICALLY RAISED IS THAT THERE IS NO TRANSFER ORDER U/S 127 OF THE ACT FROM TRANSFERR ING THE CASE FROM THE DCIT TO THE ADDL CIT, RANGE 6, AND NE W DELHI. THE LEARNED CIT(A) HAS HELD THAT IN THE CASES OF TR ANSFER OF CASES TO ANOTHER AO AFTER ISSUE OF NOTICE U/S 143(2 ) OF THE ACT BY ANOTHER AO, THE ISSUE INVOLVES THE INTERPRETATIO N OF CONCURRENT JURISDICTION WHICH IS BEYOND THE SCOPE O F THIS APPEAL WITHIN THE RESTRICTED DIRECTIONS OF THE HON' BLE ITAT. HE HAS HELD THAT, 'IN MY CONSIDERED OPINION, SINCE BOT H ADDL. CIT RANGE-6 AND DCIT CIRCLE-6(1) WORKS AS SUBORDINA TE OFFICER TO THE SAME CIT AND THE CIT HAVING ENTIRE T ERRITORIAL JURISDICTION, THE PASSING OF ASSESSMENT ORDER BY TH E ADDL. M/S. TATA SONS LTD., (GROUP CASE) : 21 : CIT AFTER ISSUE OF NOTICE U/S 143(2) BY THE DCIT CI RCLE 6(1) DOES NOT AFFECT THE TAXABILITY OF THE APPELLANT OR APPELLANT IS NOT ADVERSELY AFFECTED BY THE ORDER' THE HON'BLE . DELHI HIGH COURT IN THE ABOVE CONTEXT IN THE CASE OF VALVOLINE CUMMINS LTD. (SUPRA) HAS HELD AS UNDER; '28. ON THE ISSUE OF 'CONCURRENT' JURISDICTION BETW EEN THE ADDITIONAL COMMISSIONER AND THE DEPUTY COMMISSIONER , LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON A DECI SION OF THE CALCUTTA HIGH COURT IN BERGER PAINTS INDIA LTD. V, ASSTT. CIT [2000] 246 ITR 133. THE CALCUTTA HIGH COURT HAD EXP LAINED THE MEANING OF THE EXPRESSION 'CONCURRENT' TO MEAN TWO AUTHORITIES HAVING EQUAL POWERS TO DEAL WITH A SITU ATION -BUT THE SAME WORK CANNOT BE DIVIDED BETWEEN CONCURRENT JURISDICTION MEANS A SUBORDINATE AUTHORITY CAN DEAL WITH THE MATTER EQUALLY WITH ANY SUPERIOR AUTHORITY IN ITS E NTIRETY SO THAT EITHER ONE OF SUCH JURISDICTIONS CAN BE INVOKE D. IT CANNOT BE CONSTRUED AS CONCURRENT JURISDICTION WHEN ONE PA RT OF THE ASSESSMENT WILL BE DEALT WITH BY ONE SUPERIOR OFFIC ER AND THE OTHER PART WILL BE DEALT WITH BY ONE SUBORDINATE OF FICER. ...' ............IT APPEARS TO US QUITE CLEARLY THAT THE RE IS A DISTINCTION BETWEEN CONCURRENT EXERCISE OF POWER AND JOINT EXER CISE OF POWER. WHEN POWER HAS BEEN CONFERRED UPON TWO AUTHO RITIES CONCURRENTLY, EITHER ONE OF THEM CAN EXERCISE THAT POWER AND ONCE A DECISION IS TAKEN TO EXERCISE THE POWER BY A NY ONE OF THOSE AUTHORITIES, THAT EXERCISE MUST BE TERMINATED BY THAT AUTHORITY ONLY. IT IS NOT THAT ONE AUTHORITY CAN ST ART EXERCISING A POWER AND THE OTHER AUTHORITY HAVING CONCURRENT JURISDICTION CAN CONCLUDE THE EXERCISE OF THAT POWE R. THIS PERHAPS MAY BE PERMISSIBLE IN A SITUATION WHERE BOT H THE AUTHORITIES JOINTLY EXERCISE POWER BUT IT CERTAINLY IS NOT PERMISSIBLE WHERE BOTH THE AUTHORITIES CONCURRENTLY EXERCISE POWER. ONE EXAMPLE THAT IMMEDIATELY COMES TO THE MI ND IS THAT OF GRANT OF ANTICIPATORY BAIL. BOTH THE SESS IONS JUDGE AND THE HIGH COURT HAVE CONCURRENT POWER. IT IS NO T AS IF A PART OF THAT POWER CAN BE EXERCISED BY THE HIGH COU RT AND THE BALANCE POWER CAN BE EXERCISED BY THE SESSIONS JUDGE. IF THE HIGH COURT IS SEIZED OF AN APPLICATION FOR ANTI CIPATORY BAIL IT MUST DEAL WITH IT AND SIMILARLY IF THE SESSIONS JUDGE IS SEIZED OF AN ANTICIPATORY BAIL, HE MUST DEAL WITH I T. THERE CAN BE NO JOINT EXERCISE OF POWER BOTH BY THE HIGH COUR T AS WELL AS BY THE SESSIONS JUDGE IN RESPECT OF THE SAME APP LICATION FOR ANTICIPATORY BAIL. 30. IN THE FACTS OF THE PRESENT CASE, SINCE THE ADD ITIONAL COMMISSIONER HAD EXERCISED THE POWER OF AN ASSESSIN G OFFICER, HE WAS REQUIRED TO CONTINUE TO EXERCISE TH AT POWER TILL M/S. TATA SONS LTD., (GROUP CASE) : 22 : HIS JURISDICTION IN THE MATTER WAS OVER. HIS JURISD ICTION IN THE MATTER WAS NOT OVER MERELY ON THE PASSING OF THE AS SESSMENT ORDER BUT IT CONTINUED IN TERMS OF SECTION 220(6) O F THE ACT IN DEALING WITH THE PETITION FOR STAY. WHAT HAS HAPPEN ED IN THE PRESENT CASE IS THAT AFTER HAVING PASSED THE ASSESS MENT ORDER, THE ADDITIONAL COMMISSIONER SEEMS TO HAVE WA SHED HIS HANDS OF THE MATTER AND LEFT IT TO THE DEPUTY COMMISSIONER TO DECIDE THE STAY PETITION FILED UNDE R SECTION 220(5) OF THE ACT. WE ARE OF THE OPINION THAT THIS WAS NOT PERMISSIBLE IN LAW.' 9.1 WE THEREFORE HOLD THAT APPLYING THE ABOVE JUDIC IAL POSITION THAT ASSESSMENT HAS TO BE COMPLETED BY THE AUTHORITY WHO HAS INITIATED THE PROCEEDINGS FOR MAK ING ASSESSMENT AND ANY OTHER AUTHORITY CAN TAKE OVER TH E PROCEEDINGS ONLY AFTER A PROPER ORDER OF TRANSFER U /S 127(1) OR 12 7(2) OF THE PROCEEDINGS. THE REVENUE HAS NOT BROUGHT ANY ORDER FOR TRANSFER OF THE PROCEEDINGS FROM DCIT , CIRCLE- 6(1), NEW DELHI TO THE ADDITIONAL CIT, RANGE-6, NEW DELHI AND THEREFORE IT IS QUITE EVIDENT THAT THE ADDITION AL CIT, RANGE-6 TOOK OVER THE ASSESSMENT PROCEEDINGS WITHOU T THERE BEING AN ORDER U/S 127(1). IN THE CASE OF PRACHI LE ATHERS PVT. LTD. (SUPRA), IT HAS BEEN HELD AS UNDER: 19. WE ARE FURTHER OF THE OPINION THAT THE NOTICE U NDER SECTION 143(2) OF THE ACT HAVING BEEN ISSUED BY THE INCOME- TAX OFFICER, RANGE 6(2), KANPUR ON 16.8.2002, IT WAS IN COME-TAX OFFICER ALONE WHO COULD FRAME THE ASSESSMENT SUBJEC T HOWEVER TO THE FACT THAT THAT THE ASSESSMENT COULD BE FRAMED BY ANY OTHER OFFICER ALSO PROVIDED THERE WAS AN ORD ER OF TRANSFER OF JURISDICTION OVER ASSESSEE'S CASE FROM INCOME-TAX OFFICER, RANGE-6(2), KANPUR TO THAT OFFICER UNDER S ECTION 127(4) OF THE ACT, BUT SO FAR AS PRESENT CASE IS CO NCERNED, THE REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY ORDER UND ER SECTION 127 PASSED AFTER 6.8.2002 TRANSFERRING JURI SDICTION OVER THE ASSESSEE'S CASE FROM THE INCOME-TAX OFFICE R, RANGE 6(2), KANPUR TO .THE ADDL. CIT, RANGE-6,KANPUR AND THEREFORE, THE ASSESSMENT FRAMED BY THE ADDL CIT, R ANGE- ,KANPUR IRRESPECTIVE OF THE FACT AS TO WHETHER HE W AS AUTHORIZED TO PERFORM THE FUNCTIONS OF AN AO OR NOT , IS ILLEGAL AND VOID AB INTIO FOR WANT OF JURISDICTION. CONSEQU ENTLY, WE ARE OF THE OPINION THAT THE ASSESSMENT ORDER IN THE PRESENT CASE DATED 31.3.2003 PASSED BY THE ADDL. CIT, RANGE (6), KANPUR WAS ILLEGAL AND VOID AB INITIO FOR WANT OF J URISDICTION. CONSEQUENTLY, THE ASSESSMENT ORDER IS QUASHED.' M/S. TATA SONS LTD., (GROUP CASE) : 23 : 9.2 CONSEQUENTLY ON THIS COUNT ALSO, THE ASSESSMENT MADE ON 29.12.2008 BY THE ADDITIONAL COMMISSIONER IS ILL EGAL AND BAD IN LAW FOR WANT OF JURISDICTION. 10. FOR THE REASONS AFORESAID WE HOLD THAT THE ORDE R OF ASSESSMENT DATED 29.12.2008 WAS WITHOUT JURISDICTIO N AND THEREFORE IS QUASHED AS SUCH. IN RESULT, GROUND NOS . 1 AND 2 ARE AL/OWED.' 3.23. IN THE CASE BEFORE US, THE FACTS ARE 'IDENTIC AL. IT IS NOTED THAT LD.CIT-OP AS WELL AS THE ASSESSING OFFICER (PR ESENT INCUMBENT) WHO WAS PERSONALLY PRESENT DURING THE CO URSE OF HEARING BEFORE US, JOINTLY STATED THAT NO SUCH ORDE R (AS PRESCRIBED UNDER SECTION 127(1) REQUIRED TO BE PASS ED BY THE JURISDICTIONAL COMMISSIONER OF INCOME TAX) IS AVAIL ABLE IN THE RECORDS. THUS, IT IS CLEAR THAT THERE WAS NO VALID TRANSFER OF JURISDICTION TO THE ADDITIONAL COMMISSIONER OF INCO ME TAX WHO HAD PASSED THE IMPUGNED ASSESSMENT ORDER. THUS, IMPUGNED ASSESSMENT ORDER HAD BEEN PASSED WITHOUT ASSUMING JURISDICTION AS PER LAW. 3-24. NEXT ISSUE RAISED BY THE LD. SENIOR COUNSEL W AS THAT THE ADDITIONAL COMMISSIONER WHO HAD PASSED THE IMPU GNED ASSESSMENT ORDER WAS NOT AUTHORIZED TO ACT AS ASSES SING OFFICER OF THE ASSESSEE AND PASS THE IMPUGNED ASSES SMENT ORDER. WE ANALYZED THE PROVISIONS OF LAW IN THIS RE GARD AND FIND THAT SECTION 2(7A) DEFINES THE TERM OF ASSESSI NG OFFICER AS UNDER: 'ASSESSING OFFICER' MEANS THE ASSISTANT COMMISSIONE R OR DEPUTY COMMISSIONER OR ASSISTANT DIRECTOR OR DEPUTY DIRECT OR OR THE INCOME- TAX OFFICER WHO IS VESTED WITH THE RELEVANT JURISDI CTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION (1) O R SUBSECTION (2) OF SECTION 120 OR ANY OTHER PROVISION OF THIS ACT, AND THE JOINT COMMISSIONER OR JOINT DIRECTOR WHO IS DIRECTED UNDE R CLAUSE (B) OF SUB-SECTION (4) OF THAT SECTION TO EXERCISE OR PERF ORM ALL OR ANY F THE POWERS AND FUNCTIONS CONFERRED ON, 'OR ASSIGNED TO, AN ASSESSING OFFICER UNDER THIS ACT.' SUBSEQUENTLY, THE WORD 'ADDITIONAL COMMISSIONER' WA S ALSO ADDED IN THE SAID DEFINITION BY FINANCE ACT, 2007, WITH RETROSPECTIVE EFFECT FROM DAY 01.06.1994. THUS, FRO M THE ABOVE, IT IS CLEAR THAT WHEN THE IMPUGNED ASSESSMEN T ORDER WAS PASSED, DEFINITION OF THE WORD 'ASSESSING OFFI CER' DID NOT INCLUDE 'ADDITIONAL COMMISSIONER OF INCOME TAX. IT IS FURTHER NOTED THAT SECTION 2(28C) DEFINES JOINT COM MISSIONER. M/S. TATA SONS LTD., (GROUP CASE) : 24 : SECTION 2(28C) WAS AVAILABLE ON STATUTE SINCE 01.10 .1998 AND PROVIDE AS UNDER: '2(28C) JOINT COMMISSIONER MEANS A PERSON APPOINTED TO BE A JOINT COMMISSIONER OF INCOME TAX OR AN ADDITIONAL COMMISSIONER OF INCOME TAX UNDER SUB-SECTION (1) OF SECTION 117. ON THE OTHER. HAND, SECTION 2(1C) DEFINES 'ADD ITIONAL COMMISSIONER' AS UNDER: 'ADDITIONAL COMMISSIONER MEANS A PERSON 35 APPOINTE D TO BE AN ADDITIONAL COMMISSIONER OF INCOME TAX UNDER S UB- SECTION (1) OF SECTION 117.' THUS, COMBINED READING OF ALL THE ABOVE SECTIONS MA KES IT CLEAR THAT PRIOR TO AMENDMENT MODE BY FINANCE ACT, 2007, THE LEGISLATURE TREATED 'ADDITIONAL COMMISSIONER' A ND 'JOINT COMMISSIONER' DIFFERENTLY FOR THE PURPOSES OF PERFO RMING THE ROLE AS AN ASSESSING OFFICER, DESPITE THE FACT THAT FOR ALL THE OTHER PURPOSES 'JOINT COMMISSIONER' MEANT ADDITIONA L COMMISSIONER AS WELL., AS PER SECTION 2(25C). IT IS CLEAR FROM THE FACTS THAT BY WAY OF SUBSEQUENT AMENDMENT BY FI NANCE AD, 2007, WORDS 'ADDITIONAL COMMISSIONER' HAVE ALSO BEEN INSERTED ALONG WITH WORDS 'JOINT COMMISSIONER', IN SECTION 2(7A) WHICH DEFINES THE TERM FOR 'ASSESSMENT OFFICE R' IN CASE, THE LEGISLATURE WOULD HAVE INTENDED AND MEANT THAT FOR THE PURPOSE OF ACTING AS ASSESSING OFFICER, 'JOINT COMM ISSIONER' AND 'ADDITIONAL COMMISSIONER' MEANS ONE AND THE SAM E, THEN THERE WAS NO NEED TO COME OUT WITH AN AMENDMEN T MADE BY FINANCE ACT, 2007, WHEREIN THE WORD 'ADDITI ONAL COMMISSIONER' WAS ALSO INSERTED IN THE DEFINITION O F 'ASSESSING OFFICER' AS CONTAINED IN SECTION 2(7A). THUS, IT IS CLEAR AS PER THE PLAIN READING OF THE STATUTE THAT WHEN THE ASSESSMENT ORDER WAS PASSED, THE 'ADDITIONAL COMMIS SIONER WAS NOT AUTHORIZED TO ACT AS ASSESSING OFFICER. 36 IN ADDITION TO THE ABOVE, IT FURTHER NOTED BY US THAT ONLY THAT JOINT COMMISSIONER' WAS AUTHORIZED TO ACT AS A N ASSESSING OFFICER WHO WAS DIRECTED UNDER CLAUSE (B) OF SUB- SECTION 4 OF SECTION 120 TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS OF AN ASSESSING OFFICER AS DEFINED U/S 2(7A) OF THE ACT. NOW, IF WE REFER TO SECTION 1 20, ITS PERUSAL MAKES FURTHER CLEAR THAT ONLY CBDT CAN EMP OWER THE CHIEF COMMISSIONERS OR COMMISSIONERS FOR ISSUAN CE OF ORDERS TO THE EFFECT THAT POWERS AND FUNCTIONS OF A N ASSESSING OFFICER FOR A PARTICULAR ASSESSEE OR CLAS SES OF ASSESSEE SHALL BE EXERCISED BY A 'JOINT COMMISSIONE R'. DESPITE NUMEROUS DIRECTIONS, THE REVENUE WAS NOT AB LE BRING M/S. TATA SONS LTD., (GROUP CASE) : 25 : BEFORE US ANY ORDER WHEREIN ANY SPECIFIC AUTHORITY WAS GIVEN BY ANY CHIEF COMMISSIONER OR COMMISSIONER AUTHORIZI NG THE IMPUGNED ADDITIONAL COMMISSIONER TO PASS IMPUGNED ASSESSMENT ORDER. WE FIND FORCE IN THE ARGUMENT OF LD. COUNSEL THAT AT THE RELEVANT TIME WHEN THE ASSESSME NT PROCEEDINGS WERE IN PROGRESS, THE WORD ADDITIONAL COMMISSIONER' WAS NOT AVAILABLE IN THE AFORESAID SE CTION AND THEREFORE, IT WAS NOT POSSIBLE FOR THE CHIEF COMMIS SIONER OR THE COMMISSIONER TO HAVE AUTHORIZED AN ADDITIONAL COMMISSIONER FOR EXERCISING POWERS AND FUNCTIONS OF AN ASSESSING OFFICER FOR A PARTICULAR ASSESSEE OR CLAS SES OF ASSESSEE. EVEN OTHERWISE, NO ORDER COULD BE SHOWN T O US, WHEREBY ANY SUCH AUTHORITY WAS GIVEN TO THE JOINT COMMISSIONER OF THE RANGE. UNDER THESE CIRCUMSTANCE S, WE FIND THAT THE REVENUE IS NOT ABLE TO SHOW ANY ORDER OR NOTIFICATION IN FAVOUR OF THE ADDITIONAL COMMISSION ER AUTHORIZING HIM FOR PERFORMING THE POWERS AND FUNCT IONS OF THE ASSESSING OFFICER OF THE ASSESSEE. 3.27. DURING THE COURSE OF HEARING, LD. CIT-DR HAD DRAWN OUR ATTENTION UPON BOARD'S NOTIFICATION NO.267/2001 DATED 17-9-2001, NOTIFICATION NO.228/2001 DATED 31.7.2001 AND NOTIFICATION NO.335/2001 DATED 29-10-2001 WITH A VI EW TO ARGUE THAT THE JURISDICTION WAS ASSIGNED TO ALL THE OFFICERS INCLUDING 'ADDITIONAL COMMISSIONER' FOR EXERCISE OF POWERS AS ASSESSING OFFICER, AND THUS THE 'ADDITIONAL COMMISS IONER. OF INCOME TAX' WHO HAD PASSED THE IMPUGNED ASSESSMENT ORDER HAD INHERENT POWERS UNDER THE LAW TO ACT AS A SSESSING OFFICER OF THE ASSESSEE AND PASS THE IMPUGNED ASSES SMENT ORDER. 3.28. WE HAVE GONE THROUGH ALL THESE NOTIFICATIONS, BUT DO NOT FIND ANY SUBSTANCE IN THE CONTENTION OF THE LD. CIT -DR. IT IS NOTED THAT NOTIFICATION NO.335 IS ISSUED MERELY FOR ASSIGNING JURISDICTION TO VARIOUS COMMISSIONERS AND IT IS THU S OF NO USE TO REVENUE AS FAR AS ISSUE BEFORE US IS CONCERNED. SO FOR AS NOTIFICATION NO.267/2001 IS CONCERNED, IT READS AS FOLLOWS:- 'IN EXERCISE OF THE POWERS CONFERRED BY CLAUSE(B) O F SUB- SECTION (4) OF SECTION 120 OF THE INCOME -TAX ACT,1 '9'61(43 OF 1961), THE CENTRAL BOARD OF DIRECT TAXES, HEREBY DI RECTS THAT THE JOINT COMMISSIONERS OF INCOME TAX OR THE JOINT DIRECTORS OF INCOME TAX, SHALL EXERCISE THE. POWERS AND FUNCT IONS OF THE ASSESSING OFFICERS, IN RESPECT OF TERRITORIAL AREA OR PERSONS OR CLASSES OF PERSONS OR INCOMES OR CLASSES OF INCOME OR CASES, OR CLASSES OF CASES, IN RESPECT OF WHICH SUCH JOINT COMMISSIONERS OF INCOME TAX ARE AUTHORISED BY THE M/S. TATA SONS LTD., (GROUP CASE) : 26 : COMMISSIONER OF INCOME TAX, VIDE GOVERNMENT OF INDI A, CENTRAL BOARD OF DIRECT. TAXES NOTIFICATION NUMBER S.O.732(E) DARED 31.072001, S.O .880(E) DATED 14.09.2001 S.0.881(E) DATED 14.09.2001, S.O.8 82(E) 14.09.2001 AND S.0. 883(E) DATED 14.09.2001 PUBLISH ED IN THE GAZETTE OF INDIA, PART II, SECTION 3, SUB-SECTI ON (II), EXTRAORDINARY: (EMPHASIS SUPPLIED) 3.29. PERUSAL OF THE AFORESAID NOTIFICATION REVEALS THAT ONLY THOSE JOINT COMMISSIONERS SHALL EXERCISE THE POWERS AND FUNCTIONS OF THE ASSESSING. OFFICERS WHO HAVE BEEN AUTHORIZED BY THE CONCERNED COMMISSIONERS OF INCOME TAX IN PURSUANCE TO THE RELEVANT NOTIFICATION CONFERRING R EQUISITE POWERS TO THE CONCERNED COMMISSIONERS. 3.30. SIMILARLY NOTIFICATION NO.228/2001, SUPRA AUT HORIZE THE COMMISSIONERS OF INCOME TAX TO ISSUE ORDERS FOR AUT HORIZING IN TURN, THE JOINT COMMISSIONER OF INCOME TAX WHO A RE SUBORDINATE TO THEM FOR EXERCISING OF THE POWERS AN D PERFORMANCE OF THE FUNCTIONS OF THE ASSESSING OFFIC ERS. IT ALSO, INTER-ALIA AUTHORIZES THE JOINT COMMISSIONERS WHO WERE SO AUTHORIZED BY THE COMMISSIONERS, TO ISSUE ORDERS IN WRITING TO THE OFFICERS WHO ARE SUBORDINATE TO THEM FOR THE EXERCISE OF THE POWERS AND PERFORMANCE OF THE FUNCT IONS OF THE ASSESSING OFFICERS FOR SPECIFIED ASSESSEE OR CL ASS OF ASSESSEE. RELEVANT PART OF THE SAID NOTIFICATION IS REPRODUCED AS UNDER FOR THE SAKE OF READY REFERENCE:- .....(C) AUTHORISE THE COMMISSIONER OF INCOME TAX R EFERRED TO IN THIS NOTIFICATION TO ISSUE THE ORDERS IN WRITING FOR THE EXERCISE OF THE POWERS AND PERFORMANCE OF THE FUNCT IONS OF C THE JOINT COMMISSIONERS OF INCOME TAX, WHO ARE SUBO RDINATE TO THEM, IN RESPECT OF SUCH CASES OR CLASSES OF CAS ES SPECIFIED IN THE CORRESPONDING ENTRIES IN COLUMN(6) OF THE SC HEDULE-I AND SCHEDULE -II OF SUCH PERSONS OR CLASSES OF PERS ONS SPECIFIED IN THE CORRESPONDING ENTRIES IN COLUMN(5) OF THE SAID SCHEDULES, IN SUCH TERRITORIAL AREAS SPECIFIED IN T HE CORRESPONDING ENTRIES IN COLUMN (4) OF THE SAID SCH EDULES, AND IN RESPECT ALL OF INCOMES OR CLASSES OF INCOME. ..(D) AUTHORISES THE JOINT COMMISSIONER OF I NCOME TAX REFERRED TO IN CLAUSE (C) OF THIS NOTIFICATION, TO ISSUE ORDERS IN WITING FOR THE EXERCISE OF THE POWERS AND PERFORMAN CE OF FUNCTIONS BY THE ASSESSING OFFICERS, WHO ARE SUBORDINATE TO THEM, IN RESPECT OF SUCH SPECIFIED A REA OR PERSONS OR CLASSES OF PERSONS OR INCOMES OR CLASS ES OF INCOME OR CASES OR CLASSES OF CASES, IN RESPECT OF WHICH SUCH M/S. TATA SONS LTD., (GROUP CASE) : 27 : JOINT COMMISSIONERS OF INCOME TAX ARE AUTHORISED BY THE COMMISSIONER OF INCOME TAX UNDER CLAUSE (C) OF THIS NOTIFICATION........... 3.31. THUS, IN VIEW OF THE AFORESAID NOTIFICATION I T BECOMES IMPERATIVE ON THE PART OF THE REVENUE TO SHOW US TH AT IN THE CASE BEFORE US, THE ADDITIONAL COMMISSIONER OF INCO ME TAX, WHO HAD PASSED THE IMPUGNED ASSESSMENT ORDER, WAS D ULY AUTHORIZED BY THE JURISDICTIONAL COMMISSIONER TO DO SO. IT IS NOTED THAT ANY SUCH ORDER WOULD NOT BE AVAILABLE WI TH THE REVENUE, BECAUSE EVEN IN THE NOTIFICATIONS DISCUSSE D ABOVE ONLY 'JOINT COMMISSIONERS' WERE AUTHORIZED TO PERFO RM THE ROLE OF THE ASSESSING OFFICERS. HOWEVER, THE REVENU E IS NOT ABLE TO BRING BEFORE US ANY ORDER OF THE COMMISSION ER AUTHORIZING EVEN THE 1 JOINT COMMISSIONER' TO PERFORM POWERS AND' FUNCTIONS ' OF ASSESSING OFFICER OF T HE ASSESSEE. AS PER THE DISCUSSION MADE BY US IN 'DETAIL IN THE EARLIER PART OF OUR ORDER, IT IS DEAR THAT NO SUCH ORDER IS AVAI LABLE IN THE ASSESSMENT RECORD OR IN ANY OTHER RECORD. LEGAL CONSEQUENCES OF THE SAME HAVE BEEN ELABORATELY ANAL YSED M MANY JUDGMENTS BY VARIOUS COURTS. 3.32. IDENTICAL ISSUE CAME UP FOR CONSIDERATION BERORE DELHI BENCH OF INCOME TAX APPELLATE TRIBUNAL IN THE CASE OF MEGA CORPORATION, SUPRA. THE BENCH DISCUSSED ENTIR E LAW AVAILABLE ON THIS ISSUE AND HELD THAT AN 'ADDITIONAL COMMISSIONER OF INCOME TAX' CANNOT IPSO FACTO EXERC ISE THE POWERS OR PERFORM THE FUNCTION OF AN ASSESSING OFFICER UNDER THE ACT. HE CAN PERFORM THE FUNCTIONS AND EXERCISE THE POWERS OF AN ASSESSING OFFICER ONLY IF HE IS SP ECIFICALLY DIRECTED UNDER SECTION L2Q(4)(B) OF THE ACT TO DO S O. RELEVANT PART OF THE OBSERVATIONS OF THE BENCH IS REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE:-' . ......... WE HAVE CONSIDERED THE ARGUMENTS ADVA NCED BY THE PARTIES AND PERUSED THE ORDER OF THE LEARNED CIT(A) , COMMENTS OF THE ASSESSING OFFICER AND MATERIAL PLAC ED ON RECORD. THE CONTROVERSY RAISED IN THIS APPEAL RELAT ES TO THE VALIDITY OF ORDER OF ASSESSMENT DATED 29.12.2008 PA SSED BY ADDITIONAL- CIT, RANGE 6, NEW DELHI. ACCORDING TO T HE APPELLANT/ASSESSEE, IT IS INCUMBENT UNDER THE SCHEM E OF STATUTE TO VEST .THE ADDITIONAL CIT U/S 120(4)(B) O F THE ACT TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FU NCTIONS OF ASSESSING OFFICER UNDER THE ACT. M/S. TATA SONS LTD., (GROUP CASE) : 28 : TO EXAMINE THE ABOVE CONTENTION, WE CON SIDER IT INAPPROPRIATE TO FIRSTLY EXTRACT SECTION 2(7A) OF T HE ACT WHICH S AS UNDER: 2(7A) ASSESSING OFFICERS 2(7A) 'ASSESSING OFFICER' MEANS THE ASSISTANT COMMI SSIONER 2 DEPUTY COMMISSIONER 3 OR ASSISTANT DIRECTOR 4 OR DEPUTY DIRECTOR OR THE INCOME-TAX OFFICER WHO IS V ESTED - WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION (L)OR SUB-SECTION (2) OF SECTION 120 OR ANY OTHER PROVISION OF THIS ACT, AND THE [ADDITIONAL COMMISSIONER OR]6 7[ADDITIONAL DIRECTOR OR]7 5 JOINT COMMISSIONER OR JOINT DIRECTOR WHO IS DIRECTE D UNDER CLAUSE (B) OF SUB-SECTION (4) OF THAT SECTION TO EX ERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONF ERRED ONF OR ASSIGNED TO, AN ASSESSING OFFICER UNDER THIS ACT ; ' 5.2 A PLAIN READING OF THE AFORESAID PROVISION WOULD SHOW THAT IT IS IN TWO PARTS. THE FIRST PART PROVIDES THAT ASSESSIN G OFFICER MEANS THE 'ASSISTANT COMMISSIONER' OR 'DEPUTY COMMISSIONER' OR 'ASSISTANT DIRECTOR' OR 'DEPUTY DI RECTOR' OR 'INCOME TAX OFFICER' WHO IS VESTED WITH THE RELEVAN T JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSU ED UNDER SECTION 120(1) OR 120(2) OR ANY OTHER PROVISION OF THIS ACT. THE SECOND PART PROVIDES THAT ASSESSING OFFICER MEANS T HE 'ADDITIONAL COMMISSIONER' OR 'ADDITIONAL DIRECTOR' OR 'JOINT COMMISSIONER' OR 'JOINT DIRECTOR' WHO IS UNDER SECT ION 120(4)(B) OF THE ACT TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED, ON OR ASSIGNED TO A N ASSESSING OFFICER UNDER THIS ACT. IN OTHER WORDS, I T IS MANIFEST THAT ASSESSING OFFICER INTER-ALIA MEANS AD DITIONAL COMMISSIONER WHO IS DIRECTED UNDER SECTION 120(4)(B ) OF THE ACT TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED ON OR ASSIGNED TO AN ASSESSING OFFICER UNDER THE ACT. UNDER THE ACT IN OTHER. WORDS, AN AD DITIONAL COMMISSIONER CAN ONLY BE DIRECTED U/S 120(4)(B) OF THE ACT TO 'ASSISTANT COMMISSIONER' OR 'DEPUTY COMMISSIONER' O R 'ASSISTANT DIRECTOR' OR 'DEPUTY DIRECTOR' OR INCOME TAX OFFICER' UNDER THE ACT. THIS INTERPRETATION ALSO 'D ERIVES STRENGTH FROM THE PROVISIONS CONTAINED IN SECTION 1 20(4)(B) OF THE ACT WHICH READS AS UNDER: '120.JURISDICTION OF INCOME-TAX AUTHORITIES (4) WIT HOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTIONS (1) AND (2) , THE BOARD MAY, BY GENERAL OR SPECIAL ORDER, AND SUBJECT TO SUCH CONDITIONS, RESTRICTIONS OR LIMITATIONS AS MAY BE S PECIFIED THEREIN,- M/S. TATA SONS LTD., (GROUP CASE) : 29 : (B) EMPOWER THE DIRECTOR GENERAL OR CHIEF COMMISSIO NER OR COMMISSIONER TO ISSUE ORDERS IN WRITING THAT THE PO WERS AND FUNCTIONS CONFERRED ON, OR AS THE CASE MAY BE, ASSI GNED TO, THE ASSESSING OFFICER BY OR UNDER THIS ACT IN RESPE CT OF ANY SPECIFIED AREA OR PERSONS OR CLASSES OF PRSOHS OR INCOMES OR CLASSES OF INCOME OR CASES OR CLASSES OF CASES, SHA LL BE EXERCISED OR PERFORMED BY AN ADDITIONAL COMMISSIONE R OR AN ADDITIONAL DIRECTOR OR A JOINT COMMISSIONER OR A JO INT DIRECTOR, AND, WHERE ANY ORDER IS MADE UNDER THIS C LAUSE, REFERENCES IN ANY OTHER PROVISION OF THIS ACT, OR I N ANY RULE MADE THERE UNDER TO THE ASSESSING OFFICER SHALL BE DEEMED TO BE REFERENCES TO SUCH ADDITIONAL COMMISSIONER OR AD DITIONAL DIRECTOR OR JOINT COMMISSIONER OR A JOINT DIRECTOR, BY WHOM THE POWERS AND FUNCTIONS ARE TO BE EXERCISED OR PER FORMED UNDER SUCH ORDER, AND ANY PROVISION OF THIS ACT REQ UIRING APPROVAL OR SANCTION OF THE JOINT COMMISSIONER SHAL L NOT APPLY.' 53 IT WILL BE SEEN THAT THE SAID PROVISION PROVIDES THAT BOARD MAY BY GENERAL OR SPECIAL ORDER AND SUBJECT TO SUCH CONDITIONS, RESTRICTIONS OR LIMITATIONS AS MAY BE S PECIFIED THEREIN EMPOWER THE DIRECTOR GENERAL OR CHIEF COMMI SSIONER OR COMMISSIONER TO ISSUE ORDERS IN WRITING THAT THE POWERS AND FUNCTIONS CONFERRED ON OR AS THE CASE MAY BE, A SSIGNED TO, ASSESSING OFFICER BY OR UNDER THIS ACT IN RESPE CT OF ANY SPEC/FLED AREA OR PERSONS OR CLASSES OF PERSONS OR INCOMES OR CLASSES OF INCOME OR CASES OR CLASSES OF CASES SHAL L BE EXERCISED OR PERFORMED BY AN ADDITIONAL COMMISSIONE R OR AN ADDITIONAL DIRECTOR OR A JOINT COMMISSIONER OR A JO INT DIRECTOR AND WHERE ANY ORDER IS MADE UNDER THIS CLA USE, REFERENCE IN ANY OTHER PROVISION OF THIS ACT OR IN ANY RULE MADE THERE UNDER TO THE ASSESSING OFFICER SHALL BE DEEMED TO BE REFERENCES TO SUCH ADDITIONAL COMMISSIONER, OR A DDITIONAL DIRECTOR OR JOINT COMMISSIONER OR A JOINT DIRECTOR BY WHOM, THE POWERS AND FUNCTIONS ARE TO BE EXERCISED OR PER FORMED UNDER SUCH ORDER AND ANY PROVISION OF THIS ACT REQU IRING APPROVAL OR SANCTION OF THE JOINT COMMISSIONER SHAL L NOT APPLY. 54 THE POSITION WHICH EMERGES THUS IS THAT AN ADDIT IONAL UNDER THE ACT. HE CAN PERFORM THE FUNCTIONS AND, EX ERCISE THE POWERS OF AN ASSESSING OFFICER ONLY IF HE IS SPECIF ICALLY DIRECTED UNDER SECTION 120(4)(B) OF THE ACT.' 3.33. SIMILAR ISSUE HAS BEEN DECIDED BY THE LUCKNOV V BENCH OF ITAT IN THE CASE OF PRACHI LEATHER PUT. LTD VS. ADDITIONAL CIT IN ITA NO. 26(L)/2010 DATED 8.12.2010 RELYING U PON ITS M/S. TATA SONS LTD., (GROUP CASE) : 30 : EARLIER ITA NO.744/2004/LUCKNOW FOR ASSESSMENT YEAR 2001-02 DECIDED THIS ISSUE ON THE SIMILAR LINES AFT ER CONSIDERING AND FOLLOWING THE DECISION OF HON'BLE D ELHI HIGH COURT IN THE CASE OF NALINI MAHAJAN VS. DIT 257 ITR 123 (DELHI). IT IS ALSO NOTED IS DECISION HAS ALSO BEEN CONSIDERED BY DELHI BENCH IN THE OF MEGA CORPORATIONS LTD, SUP RA AND RELEVANT PORTION OF THE ORDER AS DISCUSSED THEREIN IS REPRODUCED BELOW: - '16.2 FROM THE CONTENTS OF. THE AFORESAID PROVISION S, IT ISQ UITE CLEAR THAT SO FAR AS ADDL. COMMISSIONER IS CON CERNED FIRSTLY HE HAS BEEN INCLUDED IN THE DEFINITION OF A SSESSING OFFICER' GIVEN UNDER SECTION 2(7A) OF THE ACT WITH EFFECT FROM 1.6.1994 AS A RESULT OF RETROSPECTIVE AMENDMENT MAD E BY THE FINANCE ACT, 2007 BUT AT THE SAME TIME, IT/S AL SO CLEAR THAT THE ADD/. COMMISSIONER WILL BE ASSESSING OFFIC ER AS ENVISAGED IN SECTION 2(7A) SO AMENDED ONLY IF HE IS DIRECTED UNDER CLAUSE (B)OF CUB-SECTION (4) OF SECTION 120 T O EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONC ERNED ON OR ASSIGNED TO AN ASSESSING OFFICER; MEANING THEREB Y THAT THE ADDL. CIT CAN FUNCTION OR CAN EXERCISE THE POWE RS AND PERFORM THE FUNCTIONS OF AN ASSESSING OFFICER IF HE IS EMPOWERED BY THE CBDT AS REQUIRED UNDER CLAUSE (B) OF SUB- SECTION (4) OF SECTION 120. 18.1 SO FAR AS THE ISSUE BEFORE US IN THE PRESENT A PPEAL IS CONCERNED, IT IS NOW CLEAR FROM THE PROVISIONS AS D ISCUSSED HEREINBEFORE THAT THE ADDITIONAL CIT COULD ACT AND EXERCISE THE POWERS OF AN AO ONLY IN CONSEQUENCE UPON DELEGA TION OF SUCH AUTHORITY BY THE BOARD, CHIEF COMMISSIONER OF INCOME- TAX OR COMMISSIONER OF INCOME-TAX AS ENVISAGED IN T HE PROVISIONS OF SECTION 120(4)(B) OF THE ACT. HOWEVER ; THE POWER GIVEN TO THE CHIEF COMMISSIONER OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX BEING IN CONSEQUENCE UPO N THE DELEGATION OF POWER DULY AUTHORIZED BY THE LEGISLAT URE, THE CHIEF COMMISSIONER OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX WERE DUTY BOUND, IF AT ALL THEY WERE TO EXERCISE - SUCH DELEGATED POWER TO ACT ACCORD/HG TO THE PROVIS IONS OF, LAW; MEANING THEREBY THAT IT WAS INCUMBENT UPON THE CHIEF COMMISSIONER OF INCOME-TAX OR THE COMMISSIONER OF I NCOME- TAX, AS THE CASE MAYBE, IF AT ALL THEY WANTED TO AU THORIZE THE ADDITIONAL CIT TO ACT AND PERFORM THE FUNCTIONS OF AN AO TO PASS A PROPER ORDER DELEGATING SUCH FUNCTIONS/ POWE RS UPON HIM THIS VIEW OF OURS IS FULLY SUPPORTED BY THE DEC ISION OF THE HON'BLE DELHI HIGH COURT IN T CASE OF DR. NALINI MA HAJAN VS DIE 257 ITR 123,WHEREIN THE HON'BLE HIGH COURT, WHI LE M/S. TATA SONS LTD., (GROUP CASE) : 31 : DISCUSSING THE POWERS OF ADDITIONAL DIRECTOR INVEST IGATION, HELD AS UNDER: IT IS NOW WELL-SETTLED THAT WHEN A POWER IS GIVEN T O DO A CERTAIN THING IN A CERTAIN MANNER, THE SAME MUST BE DONE IN THAT MANNER OR NOT AT ALT A DELEGATION OF POWER IS ESSENTIALLY A LEGISLATIVE FUNCTION. SUCH A POWER OF DELEGATION MUST BE PROVIDED BY THE STATUTE. THE DIRECTOR HIMSELF FOR C ERTAIN MATTERS IS THE DELEGATING AUTHORITY. HE, UNLESS THE STATUTE EXPRESSLY STATES; CANNOT SUB-DELEGATE HIS POWER TO ANY OTHER AUTHORITY. IN ANY EVENT, IF AN AUTHORITY, WHICH HAD NO JURISDICTION TO ISSUE SUCH AN AUTHORIZATION, DID SO , THE SAME WOULD BE LIABLE TO BE QUASHED AS ULTRA VIRES. THUS, UNLESS AND UNTIL AN AMENDMENT IS CARRIED OUT, BY REASON OF THE REDESIGNATION ITSELF, READ WITH THE PROVISIONS OF T HE GENERAL CLAUSES ACT, THE ADDL. DIRECTOR DOES NOT GET ANY ST ATUTORY POWER TO ISSUE AUTHORIZATION TO ISSUE WARRANT. THER EFORE, THE ADDL. DIRECTOR (INVESTIGATION) CANNOT BE SAID TO HA VE ANY POWER TO ISSUE ANY AUTHORIZATION OR WARRANT TO JOIN T DIRECTOR. CONSEQUENTLY, NOTIFICATION DT. 6TH SEP. 1989 IS NOT VALID IN LAW TO THE SAID EXTENT 18.2 SO FAR AS THE PRESENT CASE IS CONCERNED, THOUG H WE ARE CONCERNED WITH THE POWERS OF ADDITIONAL CIT BUT THE PROPOSITION OF LAW LAID DOWN BY THE HON'BLE HIGH CO URT WHICH WAS, THOUGH IN RELATION S TO POWERS OF ADDITIONAL D IRECTOR (INVESTIGATION), IS FULLY APPLICABLE TO THE PRESENT 18.3 IN VIEW OF THE AFORESAID FACTS, CIRCUMSTANCES AND THE DISCUSSION AND FOLLOWING THE LAW LAID DOWN BY THE H ON'BLE DE/HI HIGH COURT IN THE CASE OF DR. NA/II MAHAJAN ( SUPRA), FIRST OF ALL WE ARE OF THE OPINION THAT THE ADDL. CIT, RA NGE-6, KANPUR HAVING NOT BEEN EMPOWERED TO EXERCISE OR PERFORM TH E POWERS OR FUNCTIONS OF AN ASSESSING OFFICER, THE ASSESSMENT F RAMED BY HIM WAS ILLEGAL AND VOID AB INITIO. ' ..... 3.34. IT IS FURTHER NOTED THAT SIMILAR VIEW HAS BEE N EXPRESSED BY JODHPUR BENCH OF ETA IN THE CASE CITY GARDEN VS. IT O 21 TAXMAN.COM 373 (JODHPUR) WHEREIN IT HAS BEEN HELD T HAT IN THE ABSENCE OF A SPECIFIC ORDER ISSUED IN PURSUANCE TO SECTION 120(4)(B) SPECIFICALLY AUTHORIZING JOINT COMMISSION ER OF INCOME TAX TO EXERCISE THE POWERS AND PERFORM THE FUNCTION AS CONFERRED ON OR ASSIGNED TO AN ASSESSING OFFICER BY OR UNDER THE ACT OR A NOTIFICATION UNDER SECTION 120 OF THE ACT, HE IS NO T COMPETENT TO ACT AS AN ASSESSING OFFICER AND PASS AN ASSESSMENT ORDER. M/S. TATA SONS LTD., (GROUP CASE) : 32 : 3.35. SIMILAR VIEW HAS BEEN TAKEN BY LUCKNOW BENCH OF ITAT IN CASE OF MICRO FIN SECURITY PVT. LTD VS. ADDITIONAL CIT 94 TTJ 767 WHEREIN IT WAS HELD THAT IN ABSENCE OF ANY ALLOCATI ON BEING MADE IN FAVOUR OF ADDITIONAL COMMISSIONER TO MAKE A N ASSESSMENT, HE CANNOT ASSUME FOR HIMSELF SUCH AN AU THORITY SO AS TO PASS AN ASSESSMENT ORDER. 6. SIMILAR VIEW HAS-BEEN TAKEN RECENTLY IN ANOTHER JUDGMENT BY THE DELHI BENCH OF THE ITAT IN THE CASE OF HARVINDE R SINGH JAGGI VS. ACIT 157 ITD 869 (DELHI). RELEVANT PART OF OBSE RVATIONS OF THE BENCH IS REPRODUCED BELOW:- .........AS REGARD THE CONTENTION OF THE ASSESSEE T HAT NO ORDER UNDER SECTION 127 WAS PASSED BY THE COMMISSIONER OF INCOME- TAX, THE REVENUE HAS SUBMITTED THAT THE ADDL. COMMI SSIONER OF INCOME TAX WAS PROVIDED CONCURRENT JURISDICTION OVE R THE CASES THROUGH THE ORDER OF THE COMMISSIONER OF INCOME TAX AND, THEREFORE, NO SEPARATE ORDER UNDER SECTION 127 WAS REQUIRED W BE PASSED BY THE COMMISSIONER OF INCOME TAX. HOWEVE R, NO SUCH ORDER OF THE COMMISSIONER OF INCOME TAX CONFER RING THE CONCURRENT JURISDICTION TO THE ADDL. COMMISSIONER O F INCOME TAX OVER THE CASES OF THE INCOME TAX OFFICER IS EITHER AVAILABLE ON ASSESSMENT RECORD, OR WAS PRODUCED BY THE REVENUE. THUS, IN ABSENCE OF ANY SUCH ORDER, IT CAN'T BE ESTABLISHED THAT SAID ASSESSMENT ORDER PASSED WAS WITHIN THE JURISDICTION OF THE ADDL. COMMISSIONER OF INCOME TAX. THUS, THE ASSESSM ENT COMPLETED BY ADDITIONAL COMMISSIONER OF INCOME TAX IN THE CASE BEING WITHOUT JURISDICTION IS VOID AB INITIO. ACCOR DINGLY, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 3.37. IN THE CASE OF BINDAL APPARELS LTD VS. ACIT, DELHI BENCH OF ITAT TOOK A SIMILAR VIEW AND HELD THAT IN VIEW OF D EFINITION OF ASSESSING OFFICER CONTAINED U/S 2(7A), AN ADDITIONA L COMMISSIONER CANNOT BE AN AUTHORITY TO EXERCISE AND PERFORM ALL OR ANY OF THE POWERS OF THE FUNCTIONS OF THE ASSESS ING OFFICER TO MAKE ASSESSMENT OF INCOME. THE BENCH ANALYSED THE P ROVISIONS OF SECT/ON 2(7A) AS IT EXISTED PRIOR TO AMENDMENT M ADE BY FINANCE ACT, 2007. 3.38. DURING THE COURSE OF HEARING, IT WAS ALSO SUB MITTED BY ID. CIT-DR TO DEFEND THE IMPUGNED ASSESSMENT ORDER THAT IN ANY CASE THE ASSESSMENT ORDER HAS BEEN PASSED BY AN OFF ICER OF THE RANK OF ADDITIONAL COMMISSIONER WHICH IS MUCH SUPER IOR TO THE RANK OF ASSISTANT COMMISSIONER AND THUS NO PREJUDIC E-CAN BE PRESUMED TO HAVE BEEN DONE TO THE ASSESSEE. WE FIND THAT REASONING GIVEN BY THE LD. CIT-DR TO DEFEND THE IMP UGNED ASSESSMENT ORDER DOES NOT HAVE ANY LEGAL FORCE. IT IS WELL SETTLED M/S. TATA SONS LTD., (GROUP CASE) : 33 : THAT JURISDICTIONAL CONDITIONS REQUIRED TO BE FULFI LLED BY THE ASSESSING OFFICER MUST BE PERFORMED STRICTLY IN THE MANNER AS HAVE BEEN AS PRESCRIBED AND IF IT HAS NOT BEEN DONE IN THE MANNER UNDER THE LAW. THEN IT BECOMES NULLITY IN TH E EYES HON'BLE SUPREME COURT IN THE CASE OF CIT VS. M. H. GHASWALA OBSERVED THAT IT IS A NORMAL RULE OF CONSTRUCTION T HAT WHEN A STATUE VESTS CERTAIN POWERS IN AN AUTHORITY TO BE E XERCISED IN A PARTICULAR MANNER, THEN THAT AUTHORITY IS BOUND TO EXERCISE IT ONLY IN THE MANNER PROVIDED IN THE STATUE ONLY. 3.39 HONBLE BOMBAY HIGH COURT DEALT WITH A SIMILAR SITUATION IN THE CASE OF GHANSHAM K.KHABRANI VS. ACIT 346 ITR 44 3 WHEREIN THE SAID ASSESSEE RAISED AN ISSUE THAT REQU ISITE SANCTION PRESCRIBED U/S 151 FOR REOPENING OF AN ASS ESSMENT WAS REQUIRED TO BE OBTAINED BY THE AO FROM JOINT CO MMISSIONER OF INCOME TAX WHEREAS THE SAME WAS GRANTED BY COMMI SSIONER* OF INCOME TAX AND THEREFORE THE SAME WAS NULLITY IN THE EYES OF LAW. REVENUE TOOK A STAND MAT SANCTION WAS GRANTED BY AN OFFICER SUPERIOR IN RANK AND THEREFORE, NO PREJUDIC E WAS CAUSED TO THE ASSESSEE. BUT HON'BL HIGH. COURT DID NOT AG REE WITH THE CONTENTION OF THE REVENUE AND OBSERVED THAT:- ..........THE EXPRESSION 'JOINT COMMISSIONER' IS DE FINED IN SECTION 2(28C) TO MEAN A PERSON APPOINTED TO BE A JOINT COM MISSIONER OF INCOME TAX OR AN ADDITIONAL COMMISSIONER OF INCO ME-TAX UNDER SECTION 117(1). SECTION 151(2) MANDATES THAT THE SATISFACTION HAS TO BE OF THE JOINT COMMISSIONER. T HE EXPRESSION HAS A DISTINCT MEANING BY VIRTUE OF THE DEFINITION IN 'SECTION 2(28C). THE COMMISSIONER OF INCOME TAX 15 NOT A JOI NT COMMISSIONER WITHIN THE MEANING OF SECTION 2(28C). THERE IS NO STATUTORY PROVISION UNDER WHICH POWER TO BE EXERCIS ED BY AN OFFICER CAN BE EXERCISED BY A SUPERIOR OFFICER, WHE N THE STATUTE MANDATES THE SATISFACTION OF A PARTICULAR FUNCTIONA RY FOR THE EXERCISE OF A POWER, THE SATISFACTION MUST BE OF TH AT AUTHORITY.. WHERE A STATUTE, REQUIRES SOMETHING TO BE DONE IN A PARTICULAR MANNER, IT HAS TO BE DONE IN THAT MANNER ONLY...... ...... 3.40. THUG, IN VIEW OF THE LEGAL DISCUSS/OP MADE AB OVE AND FACTS OF THE CASE, IT IS CLEAR THAT IMPUGNED ASSESS MENT ORDER HAS BEEN PASSED WITHOUT AUTHORITY OF LAW IN AS MUCH AS REVENUE HAS NOT BEEN ABLE TO DEMONSTRATE THAT THE ADDITIONA L COMMISSIONER OF INCOME TAX WHO HAD PASSED THE ASSES SMENT ORDER HAD VALID AUTHORITY TO PERFORM AND EXERCISE T HE POWERS AND FUNCTIONS OF AN ASSESSING OFFICER OF THE ASSESS EE AND TO PASS THE IMPUGNED ASSESSMENT ORDER. UNDER THESE CIRCUMSTANCES, WE HAVE NO OTHER OPTION BUT TO HOLD THE SAME AS M/S. TATA SONS LTD., (GROUP CASE) : 34 : NULLITY AND, THEREFORE, THE IMPUGNED ASSESSMENT ORD ER IS QUASHED HAVING BEEN PASSED WITHOUT AUTHORITY OF LAW , 16. THE RATIO LAID DOWN IN THE DECISION OF TATA SON S LTD (SUPRA) AND OTHER DECISIONS RELIED UPON BY THE BENC H THEREIN, CLEARLY APPLIES TO THE FACTS OF THE PRESENT CASE. T HEREFORE, ADHERING TO THE, PRINCIPLE OF JUDICIAL DISCIPLINE W E FOLLOW THE DECISIONS OF THE TRIBUNAL REFERRED TO THE ABOVE AND HOLD THAT IN THE FACTS OF THE PRESENT CASE, THE ADDL. CIT IN THE ABSENCE OF A VALID ORDER UNDER SECTION 120(4)(B) AS WELL AS SECT ION 127(1) OF THE ACT COULD NOT HAVE EXERCISED POWERS OF ON ASSES SING OFFICER TO PASS THE IMPUGNED ASSESSMENT ORDER. ACCORDINGLY, THE IMPUGNED ASSESSMENT ORDER PASSED BEING WHOLLY WITHO UT JURISDICTION IS VOID AB INITIO, HENCE, DESERVES TO BE ANNULLED] QUASHED. ACCORDINGLY, WE DO SO. AT THIS STAGE, WE MUST DEAL WITH THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE TO RESTORE THE MATTER B ACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR ADJU DICATING THE JURISDICTIONAL ISSUE. WE DO NOT FIND ANY VALID REAS ON TO ACCEPT THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESEN TATIVE. AS STATED EARLIER BY US, EXERCISE OF JURISDICTION BY T HE ADDL. CIT HAS TO BE EXAMINED ON THE BASIS OF NOTIFICATION / ORDER S PASSED UNDER SECTION 120(4)(B), INASMUCH AS, N 127(1) OF T HE ACT. IN THIS CONTEXT, LEARNED DEPARTMENTAL REPRESENTATIVE HAS RE LIED UPON CERTAIN NOTIFICATIONS TO JUSTIFY THE VALIDITY OF TH E ASSESSMENT ORDER PASSED BY THE ADDL. CIT. AS FAR AS EXISTENCE OF ANY ORDER UNDER SECTION 127(1) IS CONCERNED, THE LEARNED DLEA RNED DEPARTMENTAL REPRESENTATIVE HAS FAIRLY SUBMITTED T HAT NO SUCH ORDER EXIST ON RECORD. AT LEAST, NOTHING WAS BROUGH T TO OUR NOTICE IN SPITE OF SPECIFIC QUERY BANG RAISED BY THE BENCH . THEREFORE, WHEN THE ISSUES ARE TO BE DECIDED ON THE BASIS OF F ACTS ALREADY AVAILABLE ON RECORD AND KEEPING IN VIEW THE RELEVAN T NOTIFICATIONS PLACED ON RECORD AS WELL AS THE DECIS IONS CITED, THERE IS NO NECESSITY OF RESTORING THE MATTER BACK TO THE FILE O THE LEARNED COMMISSIONER (APPEALS). AS FAR AS THE CONTE NTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE REGARDING MAINT AINABILITY OF THE ADDITIONAL GROUND ON THE PLEA THAT THE ASSES SEE CAN ONLY CHALLENGE THE JURISDICTION& ISSUE UNDER SECTION 124 (3) OF THE ACT, WE DO NOT FIND ANY MERIT IN SUCH SUBMISSIONS. A PLA IN READING OF SECTION 124 WOULD SHOW THAT IT REFERS TO AN ORDER I SSUED UNDER SUBSECTION (1) OR (2) OF SECTION 120, WHEREAS, WE A RE CONCERNED WITH AN ORDER PURPORTED TO BE PASSED UNDER SECTION 120(4)(B) EMPOWERING THE ADD). CIT TO ACT AS AN ASSESSING OFF ICER. THEREFORE, IN OUR VIEW, THE PROVISIONS OF SECTION 1 24 ARE NOT APPLICABLE TO THE PRESENT CASE. FOR THAT REASON WE DO NOT FEEL IT EXPEDIENT TO DEAL WITH THE DECISIONS RELIED UPON BY THE 'EARNED M/S. TATA SONS LTD., (GROUP CASE) : 35 : DEPARTMENTAL REPRESENTATIVE IN THAT REGARD. THUS, I N VIEW OF THE AFORESAID THE ADDITIONAL GROUND AND SUPPLEMENTARY A DDITIONAL GROUNDS ARE ALLOWED. 12. RESPECTFULLY, FOLLOWING THE ABOVE DECISION OF THE COORDINATE BENCH, WE ALLOW THE ADDITIONAL GROUND RA ISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE ASSESS MENT FRAMED BY THE ADDL.CIT AND ACCORDINGLY, QUASH THE ASSESSME NT FRAMED UNDER SECTION 143(3) OF THE ACT. THE CROSS APPEAL OF THE REVENUE IS RENDERED INFRUCTUOUS AS WE HAVE ALRE ADY QUASHED THE ASSESSMENT ORDER PASSED BY THE ADDL. CI T IN THE ABOVE PARA. ACCORDINGLY, THE SAME IS DISMISSED. SIN CE, WE HAVE QUASHED THE ASSESSMENT ORDER ON JURISDICTIONAL ISSUE, THE OTHER GROUNDS ON JURISDICTIONAL ISSUE AS WELL A S ON MERITS HAVE BECOME ACADEMIC AND HENCE, NOT ADJUDICATED. 13. SIMILARLY, IN AY 2007-08, THE FACTS AND ISSUES IN T HE ASSESSEE IN ITA NO. 2487/MUM/2012 AS WELL AS REVENU E APPEAL IN ITA NO. 2545/MUM/2012 ARE SAME AS IN ITA NO 4543/MUM/2012 (ASSESSEE APPEAL) AND ITA NO 4893/MUM/2012 (REVENUE APPEAL). THEREFORE OUR DECIS ION IN ITA NO. 4543/MUM/2012 AND 4893/MUM/2012 WOULD, MUTATIS MUTANDIS APPLY TO THESE APPEALS AS W ELL. ACCORDINGLY THE ASSESSEE APPEAL IS PARTLY ALLOWED A ND THE REVENUES APPEAL IS DISMISSED. 14. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE PART LY ALLOWED AND THE APPEALS BY THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD FEBRUARY, 2020 M/S. TATA SONS LTD., (GROUP CASE) : 36 : SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI; /DATED : 03-02-2020 TNMM / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A), MUMBAI 4. / CIT, MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, //TRUE COPY// / (DY./ASST. REGISTRAR) , / ITAT, MUMBAI