TATA SONS LTD, MUMBAI V. ADDL CIT 2(1), MUMBAI

ITA 5090/MUM/2012

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7253 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R MANJUNATHA SWAMY
• Keywords: Retrospective amendment; Competent authority; Assessment record
• Section: 143(3); 142(1); 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E, BENCH M UMBAI BEFORE SHRI PAWAN SINGH, JM & SHRI G. MANJUNATHA, AM ITA NO.5090/MUM/2012 ( ASSESSMENT YEAR :2005-06 ) TATA SONS LIMITED BOMBAY HOUSE HOMI MODY STREET MUMBAI-400 001 VS. ADDL.CIT-2(3) ROOM NO.556 AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 PAN/GIR NO.AAACT4060A APPELLANT ) .. RESPONDENT ) & ITA NO.5572/MUM/2012 ( ASSESSMENT YEAR :2005-06 ) ADDL.CIT-2(3) ROOM NO.552, 5 TH FLOOR AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 VS. TATA SONS LIMITED BOMBAY HOUSE HOMI MODY STREET MUMBAI-400 001 PAN/GIR NO. AAACT4060A APPELLANT ) .. R ESPONDENT ) ASSESSEE BY AARTI VISSANJI REVENUE BY R.MANJUNATHA SWAMY DATE OF HEARING 09 / 07 /201 9 DATE OF PRONOUNCEME NT 24 / 0 7 /201 9 / O R D E R PER G.MANJUNATHA (A.M) : THESE CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DIRECTED AGAINST ORDER OF THE COMMISSIONER OF I NCOME TAX APPEALS6, MUMBAI, DATED 29/06/2012 FOR ASSESSMENT YEARS 2005- 06. SINCE, THE FACTS ARE IDENTICAL AND THE ISSUES ARE COMMON, FOR THE SAKE OF ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 2 CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED-OFF BY THIS CONSOLIDATED ORDER. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF PROFESSIONAL AND FINANCI AL SERVICES FILED ITS RETURN OF INCOME FOR AY 2005-06 ON 31/10/2005 DECLA RING TOTAL INCOME OF RS. 880,66,18,700/-. THE CASE WAS SELECTED FOR SCRU TINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT, WERE ISSUED. IN RESPO NSE TO NOTICES, SHRI K.BHAGAT, GM FINANCE WAS ATTENDED FROM TIME TO TIME AND FILED VARIOUS DETAILS AS CALLED FOR. THE ASSESSMENT HAS BEEN COMP LETED U/S 143(3) OF THE I.T.ACT, 1961 ON 31/12/2007 DETERMINING THE TOT AL INCOME AT RS. 11,60, ,67,02,593/-. THE ASSESSE CARRIED THE MATTER IN APP EAL BEFORE THE CIT(A), THE CIT(A)-6, MUMBAI VIDE ITS ORDER DATED 29/06/201 2 PARTLY ALLOWED APPEAL FILED BY THE ASSESSEE. AGGRIEVED BY THE LD.C IT(A) ORDER, THE ASSESSEE AS WELL AS THE REVENUE IS IN APPEAL BEFORE US. 3. THE LD. AR FOR THE ASSESSEE AT THE TIME OF HEARI NG, REFERRING TO ADDITIONAL GROUNDS OF APPEAL FILED VIDE THEIR LETTE R DATED 16/03/2017 SUBMITTED THAT THE ISSUE INVOLVED IN ADDITIONAL GRO UNDS OF APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF ITAT, E BENCH, MUMBAI IN ASSESSEES OWN CASE FOR AY 2004-05 IN ITA NO. 2519/MUM/2019 WHERE, THE TRIBUNAL HAS QUASHED THE A SSESSMENT ORDER PASSED BY THE ADDL.CIT-2(3), MUMBAI, ON THE ISSUE O F JURISDICTION U/S 120(4)(B) OF THE I.T.ACT, 1961 THEREFORE, IF ADDITI ONAL GROUND OF APPEAL FILED BY THE ASSESSEE IS ADMITTED AND DECIDED THEN, THE A SSESSMENT ORDER ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 3 PASSED BY THE ADDL.CIT IS WITHOUT ANY JURISDICTION AND HENCE, CONSEQUENT ADDITIONS MADE IN THE ASSESSMENT CANNOT SURVIVE. TH E LD. DR, ON THE OTHER HAND, FAIRLY ACCEPTED THAT THE ISSUE INVOLVED IN ADDITIONAL GROUNDS RAISED BY THE ASSESSEE IS SQUARELY COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF ITAT FOR AY 2004-05. 4. HAVING HEARD BOTH THE SIDES AND CONSIDERED ISSUE INVOLVED IN THE ADDITIONAL GROUNDS OF APPEAL FILED BY THE ASSESSEE, WE FIND THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE QUESTIONIN G JURISDICTION OF THE ADDL.CIT U/S.120(4)(B) OF THE I.T.ACT,1961 IS GOES TO ROUTE OF THE MATTER THEREFORE, THE ADDITIONAL GROUNDS OF APPEAL FILED B Y THE ASSESSEE ARE ADMITTED FOR ADJUDICATION. 5. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE A SSESSMENT ORDER PASSED BY THE ADD.CIT IS BAD IN LAW AND LIABLE TO B E QUASHED BECAUSE, THE SAME HAS BEEN PASSED WITHOUT ANY JURISDICTION A ND/ OR IN EXCESS OF JURISDICTION, AS HE FAILED TO ESTABLISH THAT HE HAD POSSESSED LEGAL AND VALID JURISDICTION U/S 120(4)(B)OF THE I.T.ACT, 1961. THE LD. AR FURTHER SUBMITTED THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE WHERE, AFTER CONSIDERING RELEVA NT FACTS HELD THAT THE ADDL.CIT, IN THE ABSENCE OF A VALID ORDER U/S 120(4 )(B) AS WELL AS U/S 127 (1) OF THE I.T.ACT, 1961 COULD NOT HAVE EXERCISED P OWER OF AO TO PASS THE IMPUGNED ASSESSMENT ORDER. 6. THE LD. DR, ON THE OTHER HAND, FAIRLY ACCEPTED T HAT THE ISSUE HAS BEEN SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 4 FOR AY 2004-05 HOWEVER, HE STRONGLY SUPPORTED ORDER OF THE AO AS WELL AS CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE LIMITED ISSUE CAME UP FOR OUR CONSIDERATION FROM THESE APPE ALS FROM ADDITIONAL GROUND OF APPEAL FOR THE ASSESSEE IS JURISDICTION O F THE OFFICER WHO PASSED ASSESSMENT ORDER. ACCORDING TO THE ASSESSE, THE ADL .CIT WHO PASSED ORDER DOES NOT HAVE JURISDICTION UNLESS, HE HAD VAL ID ORDER U/S 120(4)(B) AND 127(1) OF THE I.T.ACT, 1961, CONSEQUENTLY, THE ASSESSMENT ORDER PASSED BY THE ADDL.CIT IS BAD IN LAW AND LIABLE TO BE QUASHED. WE FIND THAT THE COORDINATE BENCH OF ITAT, E BENCH IN ASS ESSEES OWN CASE HAD AN OCCASION TO CONSIDER AN IDENTICAL ISSUE FOR AY 2 004-05 IN ITA NO. 2519/MUM/2009, WHERE, AFTER CONSIDERING RELEVANT FA CTS OF THE CASE IN LIGHT OF PROVISION OF SECTION 120(4)(B) AS WELL AS SECTION 127(1) OF THE I.T.ACT, 1961 HELD THAT THE ADDL.CIT COULD NOT HAV E EXERCISED POWER OF AO TO PASS THE IMPUGNED ASSESSMENT ORDER, IN ABSEN CE OF VALID ORDER U/S 120(4)(B) OF THE ACT. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER:- 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT SIMILAR ISSUE ARO SE BEFORE THE COORDINATE BENCH AS MENTIONED BY THE LD. COUNSEL. I N THIS CONTEXT, WE MAY REPRODUCE THE FOLLOWING OBSERVATION OF THE BEN CH IN TATA SONS LTD. (SUPRA) : 3.12. WE HAVE EXAMINED THIS ISSUE. IT IS WELL ACCEPTED POSITION THAT THE TRIBUNAL IS A FINAL FACT FINDING BODY. REQ UISITE DOCUMENTS REQUIRED FOR ESTABLISHING LEGAL AUTHORITY OF THE ASSESSING O FFICER WHO HAD PASSED THE ASSESSMENT ORDER ARE EXPECTED TO BE AVAILABLE I N THE ASSESSMENT RECORDS. THUS, THE LEGAL ISSUE RAISED BY THE ASSESS EE FALLS IN THE CATEGORY OF CASES WHICH CAN BE DECIDED ON THE BASIS OF MATER IAL HELD ON RECORD. 3.13. FURTHER, IT IS NOTED BY US THAT THE AFORESAID GROUNDS ARE PURELY LEGAL ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 5 GROUNDS AND DO NOT REQUIRE ANY INVESTIGATION OF FRE SH FACTS AND CAN BE DECIDED ON THE BASIS OF RECORDS HELD ON RECORD. IT HAS BEEN HELD BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CORPORATION 229 ITR 383 AS WELL AS IN THE OTHER JUD GMENTS AS HAVE BEEN RELIED UPON BY THE LD. COUNSEL IN ITS PETITION THAT ASSESSEE SHOULD BE PERMITTED TO RAISE LEGAL GROUNDS AT ANY STAGE, IF T HEY GO TO THE ROOT OF THE MATTER. 3.14. REVENUES ARGUMENT TO REJECT THE ADDI TIONAL GROUNDS DUE TO ACQUIESCENCE AND PARTICIPATION OF THE ASSESSEE IN A SSESSMENT PROCEEDINGS: IT WAS CONTENDED BY THE LD. CIT-DR THA T DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAD MADE PARTIC IPATION IN THE PROCEEDINGS. THEREFORE, ASSESSEE CANNOT BE ALLOWED TO CHALLENGE JURISDICTIONAL DEFECT IN THE ASSESSMENT ORDER AT TH IS STAGE. WE HAVE CONSIDERED THIS ASPECT VERY CAREFULLY. THE ASSESSEE HAS CHALLENGED BEFORE US AUTHORITY OF THE OFFICER TO PASS THE IMPU GNED ASSESSMENT ORDER. IT IS BOUNDEN DUTY OF THE REVENUE TO ESTABLISH THE AUTHORITY AND LEGAL COMPETENCE OF ITS OFFICER TO PASS THE ASSESSMENT OR DER, AS AND 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 I S VOID AB-INITIO, THEN IT WILL REMAIN SO EVEN IF THERE IS ACQUIESCENCE OR PAR TICIPATION BY THE ASSESSEE IN THE PROCEEDINGS CARRIED OUT BY THE AO T O FRAME THE ASSESSMENT ORDER. IT IS WELL SETTLED LAW THAT CONSE NT OF THE ASSESSEE CANNOT CONFER JURISDICTION TO AN ASSESSING OFFICER WHO LACKED JURISDICTION UNDER THE LAW. SIMILARLY, VICE VERSA IS ALSO TRUE I .E. ABSENCE OF CONSENT OF THE ASSESSEE SHALL NOT TAKE 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 O N THE BASIS OF FACTUAL ANALYSIS AND PROVISIONS OF LAW AND NOT ON THE BASIS OF CONDUCT OF THE ASSESSEE. THIS ISSUE IS NOT RES-INTEGRA. IMMEDIATE REFERENCE IN THIS REGARD CAN BE MADE ON THE JUDGMENT OF HONBLE BOMBA Y HIGH COURT IN THE CASE OF INVENTORS INDUSTRIAL CORPORATION LIMITE D VS. CIT 19 4 ITR 548 (BOMBAY). SIMILAR VIEW WAS TAKEN BY HONBLE GUJARAT HIGH COURT IN THE CASE OF P.V. DOSHI VS. CIT 113 ITR 22 (GUJ) . RECEN TLY HONBLE DELHI HIGH COURT HANDLED A SIMILAR SITUATION IN THE CASE OF VALVOLINE CUMMINS LTD 307 ITR 103 (DEL) WHEREIN CHALLENGE WAS MADE TO THE JURISDICTION OF ADDITIONAL COMMISSIONER OF INCOME TAX WHO HAD PASSE D THE ASSESSMENT ORDER. IT WAS CONTENDED ON BEHALF OF THE REVENUE TH AT CHALLENGE OF JURISDICTION MUST BE MADE WITHIN THE STIPULATED TIM E DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN VIEW OF RESTRICTIONS IMPO SED BY THE PROVISIONS CONTAINED IN SECTION 124 OF THE ACT. HONBLE DELHI HIGH COURT IN THE AFORESAID CASE HELD AS UNDER:- THIS IS WELL SETTLE D 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 C ASE BEFORE US, A CHALLENGE HAS BEEN MADE ABOUT THE LEGAL COMPETENCE OF THE ADD ITIONAL COMMISSIONER OF INCOME TAX AND HIS JURISDICTION TO EXERCISE THE POWERS AND PERFORM THE FUNCTIONS OF THE ASSESSING OFFICER OF THE ASSESSEE AND TO CARRY OUT THE ASSESSMENT PROCEEDINGS AND FRAME THE ASSESSMENT ORDER IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME TAX ACT, 1961. THUS, ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 6 RELIANCE UPON THE PROVISIONS CONTAINED IN SECTION 1 24 OF THE ACT WOULD BE OF NO HELP TO THE REVENUE AS THE ASSESSEE HAS NOT C HALLENGED EITHER TERRITORIAL JURISDICTION OR IRREGULAR EXERCISE OF JURISDICTION BY THE ADDITIONAL COMMISSIONER OF INCOME TAX BUT CHALLENGE WAS MADE T O THE AUTHORITY AND LEGAL COMPETENCE ITSELF OF THE ADDITIONAL COMMI SSIONER OF INCOME TAX TO PASS THE IMPUGNED ASSESSMENT ORDER UPON THE ASSE SSEE. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF ITAT IN THE CA SE OF MEGA CORPORATION LTD VS. ADDITIONAL CIT 155 ITD 1019 (DE LHI) FOLLOWING THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF VALVOLINES CUMMINS LTD, SUPRA. 3.16 IN VIEW OF THE FACTS AND CIRCUMSTA NCES, OF THIS CASE AND THE JUDGMENTS OF HONBLE SUPREME COURT AND HONBLE BOMBAY HIGH COURT RELIED UPON BY THE LD. COUNSEL IN ITS PETITIO N AS MENTIONED ABOVE, WE FIND THAT THESE ADDITIONAL GROUNDS DESERVE TO BE ADMITTED AND THEREFORE, THESE ARE ADMITTED FOR OUR ADJUDICATION. 3.20 WE HAVE GONE THROUGH ALL THE FACTS AND CIRCUMSTANCES OF THE CASE . IT IS NOTED BY US THAT FOR, THE ASSESSMENT YEAR, AFTER THE RETURN WAS FILE D BY THE ASSESSEE, A NOTICE WAS ISSUED BY THE ACIT CIR 2(3), MUMBAI, DAT ED 5TH SEPTEMBER 2001, INTIMATING THE ASSESSEE ABOUT CHANGE IN JURIS DICTION AND CLAIMING THAT JURISDICTIONAL WAS WITH THE SAID OFFICER. THE RELEVANT PART OF THE SAID NOTICE IS REPRODUCED HEREUNDER: 'SUB: CHANGE IN JUR ISDICTION-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-II, MUMBAI., JURISDICTION OVER YOUR CASE WITH EFFECT FROM 1.8.2001 VESTS WITH THE UNDERSIGNED. ALL IT./W .T. AND INTEREST TAX RETURNS AND NECESSARY CORRESPONDENCE ON THAT ACCOUN T ARE THEREFORE REQUIRED TO BE FILED WITH THE UNDERSIGNED. ALL PAYM ENTS TOWARDS INCOME- TAX (BY WAY OF ADVANCE TAX, REGULAR TAX OR S.A. TAX ), INTEREST TAX, WCALTH TAX AND PAYMENT U/S. 115-0 OF THE I.T. ACT ARE ALSO TO BE MADE W.E.F. 1.8.2001 TO THE CREDIT OF THE ACTT CIRCLE 2(3), MUM BAI. 2. SIMILARLY, JURISDICTION OVER THE MANAGING DIRECTOR, DIRECTOR, MANAGER, AND SECRETARY OF YOUR ALSO VESTS WITH THE UNDERSIGNED VIDE NOTIFI CATIONS QUOTED SUPRA. CONSEQUENTLY, ALL THE ; OF DIE ABOVE PERSONS AND F OLLOW UP CORRESPONDENCES ON THAT ACCOUNT ARE TO BE MADE WITH THE ALL PAYMENTS TOWARDS INCOME-TAX AND WEALTH-TAX W.E.F 01.08.2001 OF THE ABOVE PERSONS ARE ALSO TO BE MADE TO THE CREDIT OF ACIT C IR.2(3) MUMBAI. THIS MAY BE CAREFULLY NOTED. YOURSFAITHFULLY SD/- (JAGA DISH PRASAD JANGID) ACIT CIR. 2(3), MUMBAI. 3.21 THUS, FROM THE ABOVE, IT IS CLEAR THAT INITIALLY THE JURISDICTION WAS WITH ACIT CIR. 2(3), MUMBAI, F OR PASSING THE ASSESSMENT ORDER. SUBSEQUENTLY, A NOTICE U/S 143(2) WAS ISSUED BY DCIT CIR. 2(3) DATED 1.12.2003 WHO WAS INDEED SUCCESSOR TO THE FIRST OFFICER. SUBSEQUENTLY, ASSESSEE RECEIVED A DATED 10 TH DECEM BER, 2004 FROM THE ADDITIONAL CIT RANGE 2(3) MUMBAI. APPARENTLY, C OMMISSIONER OF INCOME TAX WAS NOT SUCCESSOR OF ACIT/DCIT WHO HAD I SSUED EARLIER NOTICE. BUT, THE ASSESSEE HAS CONTENDED THAT THERE IS NOTHING ON RECORD TO SHOW AS TO HOW THE ADDITIONAL COMMISSIONER OF IN COME TAX BECAME AO OF THE ASSESSEE AND PASSED THE IMPUGNED ASSESSME NT ORDER. 3.22. THUS, THE FIRST ISSUE RAISED BY THE ASSESSEE BEFORE US IS THAT IN THIS CASE ASSESSMENT PROCEEDINGS WERE INITIATED BY THE ASSIST ANT COMMISSIONER OF INCOME TAX BUT WERE TAKEN OVER IN THE MIDDLE OF THE PROCEEDINGS BY THE ADDITIONAL COMMISSIONER OF INCOME TAX AND COMPLETED BY HIM WITHOUT ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 7 THERE BEING ANY VALID TRANSFER OF JURISDICTION FROM THE ASSISTANT COMMISSIONER OF INCOME TAX TO THE ADDITIONAL COMMIS SIONER OF INCOME TAX, AS REQUIRED UNDER SECTION 127 OF THE INCOME TA X ACT. IN THIS REGARD, LD. CIT-DR WAS OF THE VIEW THAT THE ADDITIONAL COMM ISSIONER OF INCOME TAX AND ASSISTANT COMMISSIONER OF INCOME TAX HAVE C ONCURRENT JURISDICTION OVER THE ASSESSEE. IN OUR VIEW, CONTEN TION OF LD. CIT-DR IS NOT VALID AS IT IS NOT BASED UPON CORRECT APPRECIAT ION OF THE LAW. IT APPEARS THAT REVENUE HAS MISUNDERSTOOD AND MISS-APP LIED THE VERY CONCEPT OF 'CONCURRENT JURISDICTION 1 AND HAS IGNOR ED THE DISTINCTION BETWEEN THE 'CONCURRENT JURISDICTION' AND 'JOINT JU RISDICTION'. WHEN WE TALK ABOUT ASSIGNMENT OF 'CONCURRENT JURISDICTION 1 TO T WO OFFICERS OF DIFFERENT HIERARCHY, IT DOES NOT MEAN THAT BOTH THE OFFICERS CAN SIMULTANEOUSLY OR JOINTLY WORK UPON THE ASSESSMENT PROCEEDINGS OF SAM E ASSESSEE. BUT IT MEANS THAT BOTH THE OFFICERS ARE LEGALLY ELIGIBLE F OR ASSIGNMENT OF JURISDICTION OF THE ASSESSMENT PROCEEDINGS OF A_ AS SESSEE AND, THEREFORE, ANY ONE OF THESE OFFICERS CAN BE ASSIGNE D THE JURISDICTION BY THE HIGHER AUTHORITY. BUT, EXERCISE OF THE JURISDIC TION BETWEEN BOTH THE OFFICERS SHALL ALWAYS BE MUTUALLY EXCLUSIVE TO EACH OTHER. IF THE JURISDICTION HAS BEEN ASSIGNED TO ONE OF THE OFFICERS, IT SHALL NOT BE EXERCISED BY THE OTHER, AND IF THE JURISDICTION IS TAKEN AWAY FROM T HE FORMER OFFICER AND ASSIGNED TO THE LATTER, THEN IT SHALL BE EXERCISED BY THE LATTER ONLY AND NOT BY THE FORMER. THUS, THE JURISDICTION CAN BE EXERCI SED BY ONLY ONE ASSESSING OFFICER AT ANY GIVEN POINT OF TUNE WHO HA S BEEN DULY ASSIGNED THE JURISDICTION BY THE COMPETENT AUTHORITY. THE AS SIGNMENT OF JURISDICTION TO AN OFFICER AND ITS TRANSFER FROM ONE OFFICER TO THE OTHER CAN BE MADE ONLY THROUGH THE PRESCRIBED PROCESS OF LAW. SECTION 127 OF THE ACT CONTAINS PROVISIONS REGARDING PROCESS TO BE FOLLOWE D BY THE REVENUE OFFICERS AND THEIR POWERS FOR TRANSFER OF CASES FRO M ONE ASSESSING OFFICER TO THE OTHER. SECTION 127(1) INTER-ALIA PROVIDES AN D MANDATES THAT THE COMMISSIONER MAY AFTER RECORDING HIS REASONS FOR DO ING SO, TRANSFER ANY CASE FROM ONE ASSESSING OFFICER SUBORDINATE TO HIM TO ANY OTHER ASSESSING OFFICER (WHETHER WITH OR WITHOUT CONCURRE NT JURISDICTION) ALSO SUBORDINATE TO HIM. THUS, MANDATORY REQUIREMENT OF THE LAW IN THIS REGARD IS THAT AN ORDER IN WRITING MUST BE PASSED BY THE J URISDICTIONAL COMMISSIONER OF INCOME TAX FOR EFFECTING TRANSFER O F ASSESSMENT PROCEEDINGS FROM ONE ASSESSING OFFICER TO THE OTHER . LAW IN THIS REGARD WAS EXPLAINED IN DETAIL BY HON'BLE DELHI HIGH COURT IN THE CASE OF VAHOLINES CUMMINS LTD. (SUPRA). SIMILAR VIEW WAS TA KEN BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MEGA CORPN. LT D. (SUPRA) FOLLOWING THE AFORESAID JUDGMENT OF THE DELHI HIGH COURT. REL EVANT PART OF ORDER IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: '...... 9. ANOTHER CONTENTION SPECIFICALLY RAISED IS THAT THERE IS NO TRANSFER ORDER U/S 127 OF THE ACT FROM TRANSFERRING THE CASE FROM THE DCIT TO THE ADDL. CIT, RANGE 6, AND NEW DELHI. THE LEARNED CIT(A) HAS HELD THAT HI THE CASES OF TRANSFER OF CASES TO ANOTHER AO AFTER ISSUE OF NOTI CE U/S 143(2) OF THE ACT BY ANOTHER AO, THE ISSUE INVOLVES THE INTERPRETATIO N OF CONCURRENT JURISDICTION WHICH IS BEYOND THE SCOPE OF THIS APPE AL WITHIN THE RESTRICTED DIRECTIONS OF THE HON'BLE IT AT. HE HAS HELD THAT, 'IN MY CONSIDERED OPINION, SINCE BOTH ADDL. CIT RANGE-6 AND DCIT CIRC LE-6(L) WORKS AS SUBORDINATE OFFICER TO THE SAME CIT AND THE CIT HAV ING ENTIRE TERRITORIAL ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 8 JURISDICTION, THE PASSING OF ASSESSMENT ORDER BY TH E ADDL. CIT AFTER ISSUE OF NOTICE U/S 143(2) BY THE DCIT CIRCLE 6(1) DOES N OT AFFECT THE TAXABILITY OF THE APPELLANT OR APPELLANT IS NOT ADVERSELY AFFE CTED BY THE ORDER.' THE HON'BLE DELHI HIGH COURT IN THE ABOVE CONTEXT IN TH E CASE OF VALVOLINE CUMMINS LTD. (SUPRA) HAS HELD AS UNDER: ' 28. ON TH E ISSUE OF 'CONCURRENT' JURISDICTION BETWEEN THE ADDITIONAL CO MMISSIONER AND THE DEPUTY COMMISSIONER, LEARNED COUNSEL FOR THE ASSESS EE RELIED UPON A DECISION OF THE CALCUTTA HIGH COURT IN BERGER PAINT S INDIA LTD V. ASSTT. CIT [20001 246 ITR 133. THE CALCUTTA HIGH COURT HAD EXPLAINED THE MEANING OF THE EXPRESSION 'CONCURRENT 1 TO MEAN TWO AUTHORITIES HAVING EQUAL POWERS TO DEAL WITH A SITUATION - BUT THE SAM E WORK CANNOT BE DIVIDED BETWEEN THEM. THIS IS WHAT THE CALCUTTA HIG H COURT HAD TO SAY:- '. . . CONCURRENT JURISDICTION MEANS A SUBORDINATE AUTHORITY CAN DEAL WITH THE MATTER EQUALLY WITH ANY SUPERIOR AUTHORITY IN I TS ENTIRETY SO THAT EITHER ONE OF SUCH JURISDICTIONS CAN BE INVOKED. IT CANNOT BE CONSTRUED AS CONCURRENT JURISDICTION WHEN ONE PART OF THE ASSESS MENT WILL BE DEALT WITH BY ONE SUPERIOR OFFICER AND THE OTHER PART WILL BE DEALT WITH BY ONE SUBORDINATE OFFICER....' ............ IT APPEARS TO US QUITE CLEARLY THAT THERE IS A DISTINCTION BETWEEN CONCURRENT EXERCISE OF POWER AN D JOINT EXERCISE 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 ANY ONE OF THOSE AUTHORITIES, THAT EXERCISE MUST BE TERMINATED BY THAT AUTHORITY ONLY. IT IS NOT THAT ONE AUTHORITY CAN START EXERCISING A POWER AND THE OTHE R AUTHORITY HAVING CONCURRENT JURISDICTION CAN CONCLUDE THE EXERCISE O F THAT POWER. THIS PERHAPS MAY BE PERMISSIBLE IN A SITUATION WHERE BOT H THE AUTHORITIES JOINTLY EXERCISE POWER BUT IT CERTAINLY IS NOT PERM ISSIBLE WHERE BOTH THE AUTHORITIES CONCURRENTLY EXERCISE POWER. ONE EXAMPL E THAT IMMEDIATELY COMES TO THE MIND IS THAT OF GRANT OF ANTICIPATORY BAIL. BOTH THE SESSIONS JUDGE AND THE HIGH COURT HAVE CONCURRENT POWER. IT IS NOT AS IF A PART OF THAT POWER CAN BE EXERCISED BY THE HIGH COURT AND T HE BALANCE POWER CAN BE EXERCISED BY THE SESSIONS JUDGE. IF THE HIGH COURT IS SEIZED OF AN APPLICATION FOR ANTICIPATORY BAIL IT MUST DEAL WITH IT AND SIMILARLY IF THE SESSIONS JUDGE IS SEIZED OF AN ANTICIPATORY BAIL, H E MUST DEAL WITH IT. THERE CAN BE NO JOINT EXERCISE OF POWER BOTH BY THE HIGH COURT AS WELL AS BY THE SESSIONS JUDGE IN RESPECT OF THE SAME APPLIC ATION FOR ANTICIPATORY BAIL. 30. IN THE FACTS OF THE PRESENT CASE, SINCE T HE ADDITIONAL COMMISSIONER HAD EXERCISED THE POWER OF AN ASSESSIN G OFFICER, HE WAS REQUIRED TO CONTINUE TO EXERCISE THAT POWER TILL HI S JURISDICTION IN THE MATTER WAS OVER. HIS JURISDICTION IN THE MATTER WAS NOT OV ER MERELY ON THE PASSING OF THE ASSESSMENT ORDER BUT IT CONTINUED IN TERMS OF SECTION 220(6) OF THE ACT IN DEALING WITH THE PETITION FOR STAY. WHAT HAS HAPPENED IN THE PRESENT CASE IS THAT AFTER HAVING PASSED THE ASSESSMENT ORDER, THE ADDITIONAL COMMISSIONER SEEMS TO HAVE WASHED HIS HA NDS OF THE MATTER AND LEFT IT TO THE DEPUTY COMMISSIONER TO DECIDE TH E STAY PETITION FILED UNDER SECTION 220(6) OF THE ACT. WE ARE OF THE OPIN ION THAT THIS WAS NOT PERMISSIBLE IN LAW.' 9.1 WE THEREFORE HOLD THAT APP LYING THE ABOVE JUDICIAL POSITION THAT ASSESSMENT HAS TO BE COMPLETED BY THE AUTHORITY WHO HAS INITIATED THE PROCEEDINGS FOR MAKING ASSESSMENT-AND ANY OTHER AUTHORITY CAN TAKE OVER THE PROCEEDINGS ONLY AFTER A PROPER ORDER OF TRANSFER U/S ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 9 127(1) OR 127(2) OF THE PROCEEDINGS. THE REVENUE HA S NOT BROUGHT ANY ORDER FOR TRANSFER OF THE PROCEEDINGS FROM DCIT, CI RCLE6(L), NEW DELHI TO THE ADDITIONAL CIT, RANGE- 6, NEW DELHI AND THEREFO RE IT IS QUITE EVIDENT THAT THE ADDITIONAL CIT, RANGE-6 TOOK OVER THE ASSE SSMENT PROCEEDINGS WITHOUT THERE BEING AN ORDER U/S 127(1). IN THE CAS E OF PRACHI LEATHERS PVT. LTD. (SUPRA), IT HAS BEEN HELD AS UNDER: 19. W E ARE FURTHER OF THE OPINION THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT HAVING BEEN ISSUED BY THE INCOME-TAX OFFICER, RANGE 6(2), KANPU R ON 16.8.2002, IT WAS INCOME-TAX OFFICER ALONE WHO COULD FRAME THE AS SESSMENT SUBJECT HOWEVER TO THE FACT THAT THAT THE ASSESSMENT COULD BE FRAMED BY ANY OTHER OFFICER ALSO PROVIDED THERE WAS AN ORDER OF T RANSFER OF JURISDICTION OVER ASSESSEE'S CASE FROM INCOME-TAX OFFICER, RANGE -6(2), KANPUR TO THAT OFFICER UNDER SECTION 127(4) OF THE ACT, BUT S O FAR AS PRESENT CASE IS CONCERNED, THE REVENUE HAS NOT BROUGHT TO OUR NOTIC E ANY ORDER UNDER SECTION 127 PASSED AFTER 6.8.2002 TRANSFERRING JURI SDICTION OVER THE ASSESSEE'S CASE FROM THE INCOME-TAX OFFICER, RANGE 6(2), KANPUR TO THE ADDL. CIT, RANGE-6,KANPUR AND THEREFORE, THE ASSESS MENT FRAMED BY THE ADDL.CIT, RANGE-6,KANPUR IRRESPECTIVE OF THE FACT A S TO WHETHER HE WAS AUTHORIZED TO PERFORM THE FUNCTIONS OF AN AO OR HOT , IS ILLEGAL AND VOID AB INITIO FOR WANT OF JURISDICTION. CONSEQUENTLY, WE A RE OF THE OPINION THAT THE ASSESSMENT ORDER HI THE PRESENT CASE DATED 31.3.200 3 PASSED BY THE ADDL.CIT, RANGE (6), KANPUR WAS ILLEGAL AND VOID AB INITIO FOR WANT OF JURISDICTION. CONSEQUENTLY, THE ASSESSMENT ORDER IS QUASHED.' 9.2 CONSEQUENTLY ON THIS COUNT ALSO, THE ASSESSMENT MAD E ON 29.12.2008 BY THE ADDITIONAL COMMISSIONER IS ILLEGAL AND BAD IN L AW FOR WANT OF JURISDICTION. 10. FOR THE REASONS AFORESAID WE HOLD THAT THE ORDER OF ASSESSMENT DATED 29.12.2008 WAS WITHOUT JURISDICTIO N AND THEREFORE IS QUASHED AS SUCH, HI RESULT, GROUND NOS. 1 AND 2 ARE ALLOWED.' 3.23. IN THE CASE BEFORE US, THE FACTS ARE IDENTICAL. IT IS NOTE D THAT LD. CIT-DR AS WELL AS THE ASSESSING OFFICER (PRESENT INCUMBENT) WHO WA S PERSONALLY PRESENT DURING THE COURSE OF HEARING BEFORE US, JOINTLY STA TED THAT NO SUCH ORDER (AS PRESCRIBED UNDER SECTION 127(1) REQUIRED TO BE PASSED 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 INCOME TAX WHO HAD PASSE D THE IMPUGNED ASSESSMENT ORDER. THUS, IMPUGNED ASSESSMENT ORDER H AD BEEN PASSED WITHOUT ASSUMING JURISDICTION AS PER LAW. 3.24. NEX T ISSUE RAISED BY THE LD. SENIOR COUNSEL WAS THAT THE ADDITIONAL COMMISSI ONER WHO HAD PASSED THE IMPUGNED ASSESSMENT ORDER WAS NOT AUTHOR IZED TO ACT AS ASSESSING OFFICER OF THE ASSESSEE AND PASS THE IMPU GNED ASSESSMENT ORDER. WE ANALYZED THE PROVISIONS OF LAW IN THIS RE GARD AND FIND THAT SECTION 2(7A) DEFINES THE TERM OF ASSESSING OFFICER AS UNDER: 'ASSESSING OFFICER' MEANS THE ASSISTANT COMMISSIONER OR DEPUTY COMMISSIONER OR ASSISTANT DIRECTOR OR DEPUTY DIRECTOR OR THE INCOME -TAX OFFICER WHO IS VESTED WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION (1) OR SUBSECTION (2) OF S ECTION 120 OR ANY OTHER PROVISION OF THIS ACT, AND THE JOINT COMMISSIONER O R JOINT DIRECTOR WHO IS DIRECTED UNDER CLAUSE (6) OF SUBSECTION (4) OF THAT SECTION TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONF ERRED ON, OR ASSIGNED TO, AN ASSESSING OFFICER UNDER THIS ACT.' 3.25. SUB SEQUENTLY, THE WORD ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 10 'ADDITIONAL COMMISSIONER' WAS ALSO ADDED IN THE SAI D DEFINITION BY FINANCE ACT, 2007, WITH RETROSPECTIVE EFFECT FROM D AY 01.06.1994. THUS, FROM THE ABOVE, IT IS CLEAR THAT WHEN THE IMPUGNED ASSESSMENT ORDER WAS PASSED, DEFINITION OF THE WORD 'ASSESSING OFFICER 1 DID NOT INCLUDE 'ADDITIONAL COMMISSIONER OF INCOME TAX'. IT IS FURT HER NOTED THAT SECTION 2(28C) DEFINES JOINT COMMISSIONER. SECTION 2(28C) W AS AVAILABLE ON STATUTE SINCE 01.10.1998 AND PROVIDE AS UNDER: '2(2 8C) 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, SEC TION 2(1C) DEFINES 'ADDITIONAL COMMISSIONER' AS UNDER: 'ADDITIONAL COM MISSIONER MEANS A PERSON AS APPOINTED TO BE AN ADDITIONAL COMMISSIONE R OF INCOME TAX UNDER SUBSECTION (1) OF SECTION 117.' THUS, COMBINE D READING OF ALL THE ABOVE SECTIONS MAKES IT CLEAR THAT PRIOR TO AMENDME NT MADE BY FINANCE ACT, 2007, THE LEGISLATURE TREATED 'ADDITIONAL COMM ISSIONER' AND 'JOINT COMMISSIONER' DIFFERENTLY FOR THE PURPOSES OF PERFO RMING THE ROLE AS AN ASSESSING OFFICER, DESPITE THE FACT THAT FOR ALL TH E OTHER PURPOSES 'JOINT COMMISSIONER' MEANT 'ADDITIONAL COMMISSIONER' AS WE LL, AS PER SECTION 2(28C). IT IS CLEAR FROM THE FACTS THAT BY WAY OF S UBSEQUENT AMENDMENT BY FINANCE ACT, 2007, WORDS 'ADDITIONAL COMMISSIONE R' HAVE ALSO BEEN INSERTED ALONG WITH WORDS 'JOINT COMMISSIONER' IN S ECTION 2(7A) WHICH DEFINES THE TERM FOR 'ASSESSMENT OFFICER' . IN CASE , THE LEGISLATURE WOULD HAVE INTENDED AND MEANT THAT FOR THE PURPOSE OF ACT ING AS ASSESSING OFFICER, 'JOINT COMMISSIONER' AND 'ADDITIONAL COMMI SSIONER' MEANS ONE AND THE SAME, THEN THERE WAS NO NEED TO COME OUT WI TH AN AMENDMENT MADE BY FINANCE ACT, 2007, WHEREIN THE WORD 'ADDITI ONAL COMMISSIONER' WAS ALSO INSERTED IN THE DEFINITION OF 'ASSESSING O FFICER' AS CONTAINED IN SECTION 2(7A). THUS, IT IS CLEAR AS PER THE PLAIN R EADING OF THE STATUTE THAT WHEN THE ASSESSMENT ORDER WAS PASSED, THE 'ADDITION AL COMMISSIONER 1 WAS NOT AUTHORIZED TO ACT AS ASSESSING OFFICER. 3.2 6. IN ADDITION TO THE ABOVE, IT FURTHER NOTED BY US THAT ONLY THAT 'JOINT COMMISSIONER 1 WAS AUTHORIZED TO ACT AS AN ASSESSING OFFICER WHO WAS D IRECTED UNDER CLAUSE (6) OF SUB- SECTION 4 OF SECTION 120 TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS OF AN ASSESSING OFFICER AS DEF INED U/S 2(7A) OF THE ACT-NOW, IF WE REFER TO SECTION 120. ITS PERUSAL MA KES FURTHER CLEAR THAT ONLY CBDT CAN EMPOWER THE CHIEF COMMISSIONERS OR C OMMISSIONERS FOR ISSUANCE OF ORDERS TO THE EFFECT THAT POWERS AN D FUNCTIONS OF AN ASSESSING OFFICER FOR A PARTICULAR ASSESSEE OR CLAS SES OF ASSESSEE SHALL BE EXERCISED BY A 'JOINT COMMISSIONER'. DESPITE NUM EROUS DIRECTIONS, THE REVENUE WAS NOT ABLE TO BRING BEFORE US ANY ORDER W HEREIN ANY SPECIFIC AUTHORITY WAS GIVEN BY ANY CHIEF COMMISSIONER OR CO MMISSIONER AUTHORIZING 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 ASSESSMENT PROCEEDINGS W ERE IN PROGRESS, THE WORD 'ADDITIONAL COMMISSIONER' WAS NOT AVAILABL E IN THE AFORESAID SECTION AND THEREFORE, IT WAS NOT POSSIBLE FOR THE CHIEF COMMISSIONER OR THE COMMISSIONER TO HAVE AUTHORIZED AN ADDITIONAL C OMMISSIONER FOR EXERCISING POWERS AND FUNCTIONS OF AN ASSESSING OFF ICER FOR A PARTICULAR ASSESSEE OR '.LASSES OF ASSESSEE. EVEN OTHERWISE, N O ORDER COULD BE SHOWN TO US, WHEREBY ANY SUCH AUTHORITY WAS GIVEN T O THE JOINT ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 11 COMMISSIONER OF THE RANGE. UNDER THESE CIRCUMSTANCE S, WE FIND THAT THE REVENUE IS NOT ABLE TO SHOW ANY ORDER OR NOTIFICATI ON IN FAVOUR OF THE ADDITIONAL COMMISSIONER AUTHORIZING HIM FOR PERFORM ING THE POWERS AND FUNCTIONS OF THE ASSESSING OFFICER OF THE ASSESSEE. 3.27. DURING THE COURSE OF HEARING, LD. CIT-DR HAD DRAWN OUR ATTENTI ON UPON BOARD'S NOTIFICATION NO.267/2001 DATED 17-9-2001, NOTIFICAT ION NO.228/2001 DATED 31.7.2001 AND NOTIFICATION NO.335/2001 DATED 29-10- 2001 WITH A VIEW 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 COMMISSIONER OF I NCOME TAX' WHO HAD PASSED THE IMPUGNED ASSESSMENT ORDER HAD INHERENT P OWERS UNDER THE LAW TO ACT AS ASSESSING OFFICER OF THE ASSESSEE AND PASS THE IMPUGNED ASSESSMENT ORDER. 3.28. WE HAVE GONE THROUGH ALL TH ESE 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 THUS OF NO USE TO REVENUE AS FAR AS ISSUE BEFORE US IS CONCERNED. SO FAR AS NOTIFICATIO N NO.267/2001 IS CONCERNED, IT READS AS FOLLOWS: 'IN EXERCISE OF TH E POWERS CONFERRED BY CLAUSE (B) OF SUBSECTION (4) OF SECTION 120 OF THE INCOME -TAX ACT,1961(43 OF 1961), THE CENTRAL BOARD OF DIRECT TAXES, HEREBY DIRECTS THAT THE JOINT COMMISSIONERS OF INCOME TAX OR THE JOINT DIRECTORS OF INCOME TAX, SHALL EXERCISE THE POWERS AND FUNCTIONS OF THE ASSESSING OFFICERS, IN RESPECT OF TERRITORIAL AREA OR PERSONS OR CLASSES OF PERSONS O R 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 C OMMISSIONER OF INCOME TAX, VIDE GOVERNMENT OF INDIA, CENTRAL BOARD OF DIRECT TAXES NOTIFICATION NUMBER S.O.732(E) DATED 31.07.2001, S.O.880(E) DATED 14.09.2001, S.O.881(E) DATED 14.09.2001, S.O. 882(E ) DATED 14.09.2001 AND S.O. 883(E) DATED 14.09.2001 PUBLISHED IN THE G AZETTE OF INDIA, PART II, SECTION 3, SUBSECTION (IF), EXTRAORDINARY. (EMP HASIS SUPPLIED) 3.29. PERUSAL OF THE AFORESAID NOTIFICATION REVEALS THAT ONLY THOSE JOINT COMMISSIONERS SHALL EXERCISE THE POWERS AND FUNCTIO NS OF THE ASSESSING OFFICERS WHO HAVE BEEN AUTHORIZED BY THE CONCERNED COMMISSIONERS OF INCOME TAX IN PURSUANCE TO THE RELEVANT NOTIFICATIO N CONFERRING REQUISITE POWERS TO THE CONCERNED COMMISSIONERS. 3.30. SIMILA RLY NOTIFICATION NO.228/2001, SUPRA AUTHORIZE THE COMMISSIONERS OF I NCOME TAX TO ISSUE ORDERS FOR AUTHORIZING IN TURN THE JOINT COMMISSION ER OF INCOME TAX WHO ARE SUBORDINATE TO THEM FOR EXERCISING OF THE POWER S AND PERFORMANCE OF THE FUNCTIONS OF THE ASSESSING OFFICERS. IT ALSO, I NTER ALIA, AUTHORIZES THE JOINT COMMISSIONERS WHO WERE SO AUTHORIZED BY THE C OMMISSIONERS, TO ISSUE ORDERS IN WRITING TO THE OFFICERS WHO ARE SUB ORDINATE TO THEM FOR THE EXERCISE OF THE POWERS AND PERFORMANCE OF THE FUNCT IONS OF THE ASSESSING OFFICERS FOR SPECIFIED ASSESSEE OR CLASS OF ASSESSE E. RELEVANT PART OF THE SAID NOTIFICATION IS REPRODUCED AS UNDER FOR THE SA KE OF READY REFERENCE: '......(C) AUTHORISE THE COMMISSIONER OF INCOME TAX REFERRED TO IN THIS NOTIFICATION TO ISSUE THE ORDERS IN WRITING FOR THE EXERCISE OF THE POWERS AND PERFORMANCE OF THE FUNCTIONS OF THE JOINT COMMI SSIONERS OF INCOME TAX, WHO ARE SUBORDINATE TO THEM, IN RESPECT OF SUC H CASES OR CLASSES OF CASES SPECIFIED IN THE CORRESPONDING ENTRIES IN COL UMN (6) OF THE SCHEDULE-I AND SCHEDULE -II OF SUCH PERSONS OR CLAS SES OF PERSONS ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 12 SPECIFIED IN THE CORRESPONDING ENTRIES IN COLUMN (5 ) OF THE SAID SCHEDULES, IN SUCH TERRITORIAL AREAS SPECIFIED HI T HE CORRESPONDING ENTRIES IN COLUMN (4) OF THE SAID SCHEDULES, AND HI RESPECT ALL OF INCOMES OR CLASSES OF INCOME; (D) AUTHORISES THE JOINT COMMISS IONER OF INCOME TAX REFERRED TO IN CLAUSE (C) OF THIS NOTIFICATION, T I SSUE ORDERS IN WRITING FOR THE EXERCISE OF THE POWERS AND PERFORMANCE OF THE FUNCT IONS BY THE ASSESSING OFFICERS, WHO ARE SUBORDINATE TO THEM, IN RESPECT OF SUCH SPECIFIED 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 C OMMISSIONER OF INCOME TAX UNDER CLAUSE (C) OF THIS NOTIFICATION... .........' 3.31. THUS, IN VIEW OF THE AFORESAID NOTIFICATION IT BECOMES IMPER ATIVE ON THE PART OF THE REVENUE TO SHOW US THAT IN THE CASE BEFORE US, THE ADDITIONAL COMMISSIONER OF INCOME TAX, WHO HAD PASSED THE IMPU GNED ASSESSMENT ORDER, WAS DULY AUTHORIZED BY THE JURISDICTIONAL CO MMISSIONER TO DO SO. IT IS NOTED THAT ANY SUCH ORDER WOULD NOT BE AVAILABLE WITH THE REVENUE, BECAUSE EVEN IN THE NOTIFICATIONS DISCUSSED ABOVE O NLY 'JOINT COMMISSIONERS' WERE AUTHORIZED TO PERFORM THE ROLE OF THE ASSESSING OFFICERS. HOWEVER, THE REVENUE IS NOT ABLE TO BRING BEFORE US ANY ORDER OF THE COMMISSIONER AUTHORIZING EVEN THE 'JOINT COM MISSIONER' TO PERFORM POWERS AND FUNCTIONS OF ASSESSING OFFICER O F THE ASSESSEE. AS PER THE DISCUSSION MADE BY US IN DETAIL IN THE EARL IER PART OF OUR ORDER, IT IS CLEAR THAT NO SUCH ORDER IS AVAILABLE IN THE ASSESS MENT RECORD OR IN ANY OTHER RECORD. LEGAL CONSEQUENCES OF THE SAME HAVE B EEN ELABORATELY ANALYSED IN MANY JUDGMENTS BY VARIOUS COURTS. 3.32. IDENTICAL ISSUE CAME UP FOR CONSIDERATION BEF ORE DELHI BENCH OF INCOME TAX APPELLATE TRIBUNAL :' THE CASE OF MEGA C ORPN. LTD. (SUPRA). THE BENCH DISCUSSED ENTIRE LAW AVAILABLE ON THIS IS SUE AND HELCR THAT AN 'ADDITIONAL COMMISSIONER OF INCOME TAX' CANNOT IPSO FACTO EXERCISE THE POWERS OR PERFORM THE FUNCTION OF AN ASSESSING OFFI CER UNDER THE ACT. HE CAN PERFORM THE FUNCTIONS AND EXERCISE THE POWERS O F AN ASSESSING OFFICER ONLY IF HE IS SPECIFICALLY DIRECTED UNDER S ECTION 120(4)(6) OF THE ACT TO DO SO. RELEVANT PART OF THE OBSERVATIONS OF THE BENCH IS REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE: '...... ..... WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES AN D PERUSED THE ORDER OF THE LEARNED CIT(A), COMMENTS OF THE ASSESSING OF FICER AND MATERIAL PLACED ON RECORD. THE CONTROVERSY RAISED IN THIS AP PEAL RELATES TO THE VALIDITY OF ORDER OF ASSESSMENT DATED 29.12.2008 PA SSED BY ADDITIONAL CIT, RANGE 6, NEW DELHI. ACCORDING TO THE APPELLANT /ASSESSEE, IT IS INCUMBENT UNDER THE SCHEME OF STATUTE TO VEST THE A DDITIONAL CIT U/S 120(4)(6) OF THE ACT TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS OF ASSESSING OFFICER UNDER THE ACT. 5.1 T O EXAMINE THE ABOVE CONTENTION, WE CONSIDER IT APPROPRIATE TO FIRSTLY E XTRACT SECTION 2(7A) OF THE ACT WHICH READS AS UNDER: '2(7A) ASSESSING OFFICERS (7A) 'ASSESSING OFFICER' MEANS THE ASSISTANT COMMISSIONER OR 2DEPUT Y COMMISSIONER 3 OR ASSISTANT DIRECTOR 4 OR DEPUTY DIRECTOR OR THE I NCOME-TAX OFFICER WHO IS VESTED WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSUED UNDER SUB-SECTION (L)OR SUB-SECTION (2) OF S ECTION 120 OR ANY OTHER PROVISION OF THIS ACT, AND THE 6 [ADDITIONAL COMMIS SIONER OR] 6 '[ADDITIONAL DIRECTOR OR] 7 5 JOINT COMMISSIONER OR JOINT DIRECT OR WHO IS DIRECTED ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 13 UNDER CLAUSE (B) OF SUB-SECTION (4) OF THAT SECTION TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED ON , OR ASSIGNED TO, AN ASSESSING OFFICER UNDER THIS ACT; 5.2 A PLAIN READING OF THE AFORESAID PROVISION WOUL D SHOW THAT IT IS IN TWO PARTS. THE FIRST PART PROVIDES THAT ASSESSING OFFIC ER MEANS THE 'ASSISTANT COMMISSIONER' OR 'DEPUTY COMMISSIONER' OR 'ASSISTAN T DIRECTOR' OR 'DEPUTY DIRECTOR' OR 'INCOME TAX OFFICER' WHO IS VE STED WITH THE RELEVANT JURISDICTION BY VIRTUE OF DIRECTIONS OR ORDERS ISSU ED UNDER SECTION 120(1) OR 120(2) OR ANY OTHER PROVISION OF THIS ACT. THE SECO ND PART PROVIDES THAT ASSESSING OFFICER MEANS THE 'ADDITIONAL COMMISSIONE R' OR 'ADDITIONAL DIRECTOR' OR 'JOINT COMMISSIONER' OR 'JOINT DIRECTO R' WHO IS DIRECTED UNDER SECTION 120(4)(B) OF THE ACT TO EXERCISE OR P ERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONFERRED ON OR ASSIGNED TO AN ASSESSING OFFICER UNDER THIS ACT. IN OTHER WORDS, IT IS MANIFEST THAT ASSESSING OFFICER INTER- ALIA MEANS ADDITIONAL 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. IN OTHER WORDS, AN ADDITIONAL COMMISSIONER CAN ONLY BE DIRECTED U/S 120(4)(B) OF THE ACT TO 'ASSISTANT COMMISSIONER' OR 'DEPUTY COMMISSIONER' OR 'ASSISTANT DIRECTOR' OR 'DEPUTY DI RECTOR' OR INCOME TAX OFFICER' UNDER THE ACT. THIS INTERPRETATION ALSO DE RIVES STRENGTH FROM THE PROVISIONS CONTAINED IN SECTION 120(4)(&) OF THE AC T WHICH READS AS UNDER: '120. JURISDICTION OF INCOME-TAX AUTHORITIES (4) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTIONS (1) AND (2) , THE BO ARD MAY, BY GENERAL OR SPECIAL ORDER, AND SUBJECT TO SUCH CONDITIONS, REST RICTIONS OR LIMITATIONS AS MAY BE SPECIFIED THEREIN,- (B) EMPOWER THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER TO ISSUE ORDERS IN WRI TING THAT THE POWERS AND FUNCTIONS CONFERRED ON, OR AS THE CASE MAY BE, ASSIGNED TO, THE ASSESSING OFFICER BY OR UNDER THIS ACT IN RESPECT O F ANY SPECIFIED AREA OR PERSONS OR CLASSES OF PERSONS OR INCOMES OR CLASSES OF INCOME OR CASES OR CLASSES OF CASES, SHALL BE EXERCISED OR PERFORME D BY AN ADDITIONAL COMMISSIONER OR AN ADDITIONAL DIRECTOR OR A JOINT C OMMISSIONER OR A JOINT DIRECTOR, AND, WHERE ANY ORDER IS MADE UNDER THIS CLAUSE, REFERENCES IN ANY OTHER PROVISION OF THIS ACT, OR I N ANY RULE MADE THERE UNDER TO THE ASSESSING OFFICER SHALL BE DEEMED TO B E REFERENCES TO SUCH ADDITIONAL COMMISSIONER OR ADDITIONAL DIRECTOR OR J OINT COMMISSIONER OR A JOINT DIRECTOR, BY WHOM THE POWERS AND FUNCTIONS ARE TO BE EXERCISED OR PERFORMED UNDER SUCH ORDER, AND ANY PROVISION OF THIS ACT REQUIRING APPROVAL OR SANCTION OF THE JOINT COMMISSIONER SHAL L NOT APPLY.' 5.3 IT WILL BE SEEN THAT THE SAID PROVISION PROVIDES THAT BOARD MAY BY GENERAL OR SPECIAL ORDER AND SUBJECT TO SUCH CONDITIONS, RESTR ICTIONS OR LIMITATIONS AS MAY BE SPECIFIED THEREIN EMPOWER THE DIRECTOR GENER AL OR CHIEF COMMISSIONER OR COMMISSIONER TO ISSUE ORDERS IN WRI TING THAT THE POWERS AND FUNCTIONS CONFERRED ON OR AS THE CASE MAY BE, A SSIGNED TO, ASSESSING OFFICER BY OR UNDER THIS ACT IN RESPECT O F ANY SPECIFIED AREA OR PERSONS OR CLASSES OF PERSONS OR INCOMES OR CLASSES OF INCOME OR CASES OR CLASSES OF CASES SHALL BE EXERCISED OR PERFORMED BY AN ADDITIONAL COMMISSIONER OR AN ADDITIONAL DIRECTOR OR A JOINT C OMMISSIONER OR A JOINT DIRECTOR AND WHERE ANY ORDER IS MADE UNDER TH IS CLAUSE, REFERENCE IN ANY OTHER PROVISION OF THIS ACT OR HI ANY RULE M ADE THERE UNDER TO THE ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 14 ASSESSING OFFICER SHALL BE DEEMED TO BE REFERENCES TO SUCH ADDITIONAL COMMISSIONER OR ADDITIONAL DIRECTOR OR JOINT COMMIS SIONER OR A JOINT DIRECTOR BY WHOM, THE POWERS AND FUNCTIONS ARE TO B E EXERCISED OR PERFORMED UNDER SUCH ORDER AND ANY PROVISION OF THI S ACT REQUIRING APPROVAL OR SANCTION OF THE JOINT COMMISSIONER SHAL L NOT APPLY. 5.4 THE POSITION WHICH EMERGES THUS IS THAT AN ADDITIONAL C OMMISSIONER OF INCOME TAX IPSO FACTO CANNOT EXERCISE THE POWERS OR PERFORM THE FUNCTIONS OF AN ASSESSING OFFICER UNDER THE ACT. HE CAN PERFORM THE FUNCTIONS AND, EXERCISE THE POWERS OF AN ASSESSING OFFICER ONLY IF HE IS SPECIFICALLY DIRECTED UNDER SECTION 120(4)(6) OF TH E ACT. 3.33. SIMILAR ISSUE HAS BEEN DECIDED BY THE LUCKNOW BENCH OF ITAT IN THE CASE OF PRACHI LEATHER (P.) LTD V. AM. CIT [IT APPEAL NO. 26(L) OF 2010, DATED 8.12.2010] RELYING UPON ITS EARLIER ORD ER IN ITA NO.744/2004/LUCKNOW FOR ASSESSMENT YEAR 2001-02 DEC IDED THIS ISSUE ON THE SIMILAR LINES AFTER CONSIDERING AND FOLLOWIN G THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF DR. NALINI MAHAJAN (SUPRA). IT IS ALSO NOTED THAT THIS DECISION HAS ALSO BEEN CONSIDERED BY DELH I BENCH IN THE CASE OF MEGA CORPORATIONS LTD, SUPRA AND RELEVANT PORTION O F THE ORDER AS DISCUSSED THEREIN IS REPRODUCED BELOW: '16.2 FROM THE CONTENTS OF THE AFORESAID PROVISIONS, IT IS QUITE CLEAR THAT SO FAR AS ADDL. COMMISSIONER IS CONCERNED, FIRSTLY HE HAS BEEN INCLUDED IN THE DEFI NITION OF 'ASSESSING OFFICER' GIVEN UNDER SECTION 2(7A) OF THE ACT WITH EFFECT FROM 1.6.1994 AS A RESULT OF RETROSPECTIVE AMENDMENT MADE BY THE FIN ANCE ACT, 2007 BUT AT THE SAME TIME, IT IS ALSO CLEAR THAT THE ADD) CO MMISSIONER WILL BE ASSESSING OFFICER AS ENVISAGED IN SECTION 2(7A) SO AMENDED ONLY IF HE DIRECTED UNDER CLAUSE (6)OF SUB-SECTION (4) OF SECT ION 120 TO EXERCISE OR PERFORM ALL OR ANY OF THE POWERS AND FUNCTIONS CONC ERNED ON OR ASSIGNED TO AN ASSESSING OFFICER; MEANING THEREBY THAT THE A DDL. CIT CAN FUNCTION OR CAN EXERCISE THE POWERS AND PERFORM THE FUNCTION S OF AN ASSESSING OFFICER IF HE IS EMPOWERED BY THE CBDT AS REQUIRED UNDER CLAUSE (6) 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 DISCUSSED HEREINBE FORE THAT THE ADDITIONAL CIT COULD ACT AND EXERCISE THE POWERS OF AN AO ONLY IN CONSEQUENCE UPON DELEGATION OF SUCH AUTHORITY BY TH E BOARD, CHIEF COMMISSIONER OF INCOME-TAX OR COMMISSIONER OF INCOM E-TAX AS ENVISAGED IN THE PROVISIONS OF SECTION 120(4)(6) OF THE ACT. HOWEVER, THE POWER GIVEN TO THE CHIEF COMMISSIONER OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX BEING IN CONSEQUENCE UPON THE DELEGAT ION OF POWER DULY AUTHORIZED BY THE LEGISLATURE, THE CHIEF COMMISSION ER OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX WERE DUTY BOUND, IF AT ALL THEY WERE TO EXERCISE SUCH DELEGATED POWER TO ACT ACCORDING TO T HE PROVISIONS OF LAW; MEANING THEREBY THAT IT WAS INCUMBENT UPON THE CHIE F COMMISSIONER OF INCOME-TAX OR THE COMMISSIONER OF INCOME-TAX, AS TH E CASE MAYBE, IF AT ALL THEY WANTED TO AUTHORIZE THE ADDITIONAL CIT TO ACT AND PERFORM THE FUNCTIONS OF AN AO, TO PASS A PROPER ORDER DELEGATI NG SUCH FUNCTIONS/POWERS UPON HIN THIS VIEW OF OURS IS FULL Y SUPPORTED BY THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF DR. NALINI MAHAJAN V. DIT [20011 252 ITR 123/R20021122 TAXMAN 897 WHER EIN THE HON'BLE HIGH COURT, WHILE DISCUSSING THE POWERS OF ADDITION AL DIRECTOR ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 15 INVESTIGATION, HELD AS UNDER: 'IT IS NOW WELL-SETTL ED THAT WHEN A POWER IS GIVEN TO DO A CERTAIN THING HI A CERTAIN MANNER, TH E SAME MUST BE DONE IN THAT MANNER OR NOT AT ALL. A DELEGATION OF POWER IS ESSENTIALLY A LEGISLATIVE FUNCTION. SUCH A POWER OF DELEGATION MUST BE PROVID ED BY THE STATUTE. THE DIRECTOR HIMSELF FOR CERTAIN MATTERS IS THE DEL EGATING AUTHORITY. HE, UNLESS THE STATUTE EXPRESSLY STATES, CANNOT SUB-DEL EGATE HIS POWER TO ANY OTHER AUTHORITY. IN ANY EVENT, IF AN AUTHORITY, WHI CH 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 A MENDMENT IS CARRIED OUT, BY REASON OF THE REDESIGNATION ITSELF, READ WI TH THE PROVISIONS OF THE GENERAL CLAUSES ACT, THE ADDL. DIRECTOR DOES NOT GE T ANY STATUTORY POWER TO ISSUE AUTHORIZATION TO ISSUE WARRANT. THEREFORE, THE ADDL. DIRECTOR (INVESTIGATION) CANNOT BE SAID TO HAVE ANY POWER TO ISSUE ANY AUTHORIZATION OR WARRANT TO JOINT DIRECTOR. CONSEQU ENTLY, NOTIFICATION DT. 6TH SEP. 1989 IS NOT VALID IN LAW TO THE SAID EXTEN T. 18.2 SO FAR AS THE PRESENT CASE IS CONCERNED, THOUGH WE ARE CONCERNED WITH THE POWERS OF ADDITIONAL CIT BUT THE PROPOSITION OF LAW LAID DOWN BY THE HON'BLE HIGH COURT WHICH WAS, THOUGH IN RELATION TO POWERS OF AD DITIONAL DIRECTOR (INVESTIGATION), IS FULLY APPLICABLE TO THE PRESENT CASE. 18.3 IN VIEW OF THE AFORESAID FACTS, CIRCUMSTANCES AND THE DISCUSSION AND FOLLOWING THE LAW LAID DOWN BY THE HON'BLE DELHI HIGH COURT IN THE CA SE OF DR. NALINI MAHAJAN (SUPRA), FIRST OF ALL WE ARE OF THE OPINION THAT THE ADDL.CIT, RANGE-6, KANPUR HAVING NOT BEEN EMPOWERED TO EXERCI SE OR PERFORM THE POWERS OR FUNCTIONS OF AN ASSESSING OFFICER, THE AS SESSMENT FRAMED BY HIM WAS ILLEGAL AND VOID AB INITIO.......' 3.34. IT IS FURTHER NOTED THAT SIMILAR VIEW HAS BEEN EXPRESSED BY JODHPUR BENCH OF ITA IN THE CASE CITY GARDEN V, ITO [2012] 21 TAXMANN.COM 373/51 SOT 195 (URG) WHEREIN IT HAS BEEN HELD THAT IN THE ABSENCE OF A SPECIFIC ORD ER ISSUED IN PURSUANCE TO SECTION 120(4)(6) SPECIFICALLY AUTHORIZING JOINT COMMISSIONER OF INCOME TAX TO EXERCISE THE POWERS AND PERFORM THE F UNCTION 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. 3.3 5. SIMILAR VIEW HAS BEEN TAKEN BY LUCKNOW BENCH OF IT AT IN THE CASE OF MICROFIN SECURITY (P.) LTD. V. ADDL. CIT [2005] 3 SOT 302 WHEREIN IT WAS HELD THAT IN ABSENCE OF ANY ALLOCATION BEING MADE IN FAVOUR OF A DDITIONAL COMMISSIONER TO MAKE AN ASSESSMENT, HE CANNOT ASSUM E FOR HIMSELF SUCH AN AUTHORITY SO AS TO PASS AN ASSESSMENT ORDER . 3.36. SIMILAR VIEW HAS BEEN TAKEN RECENTLY IN ANOTHER JUDGMENT BY THE DELHI BENCH OF THE IT AT IN THE CASE OF HARVINDER SINGH JAGGI V. ASSTT. C IT [2016] 157 ITD 869/67 TAXMANN.COM 109. RELEVANT PART OF OBSERVATIO NS OF THE BENCH IS REPRODUCED BELOW: '.......AS REGARD THE CONTENTION OF THE ASSESSEE THAT NO ORDER UNDER SECTION 127 WAS PASSED BY THE COMMIS SIONER OF INCOME- TAX, THE REVENUE HAS SUBMITTED THAT THE ADDL. COMMI SSIONER OF INCOME TAX WAS PROVIDED CONCURRENT JURISDICTION OVER THE C ASES THROUGH THE ORDER OF THE COMMISSIONER OF INCOME TAX AND, THEREFORE, N O SEPARATE ORDER UNDER SECTION 127 WAS REQUIRED TO BE PASSED BY THE COMMISSIONER OF INCOME TAX. HOWEVER, NO SUCH ORDER OF THE COMMISSIO NER OF INCOME TAX CONFERRING THE CONCURRENT JURISDICTION TO THE ADDL. COMMISSIONER OF INCOME TAX OVER THE CASES OF THE INCOME TAX OFFICER IS EITHER AVAILABLE ON ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 16 ASSESSMENT RECORD, OR WAS PRODUCED BY THE REVENUE. THUS, IN ABSENCE OF ANY SUCH ORDER, IT CAN'T BE ESTABLISHED THAT SAID A SSESSMENT ORDER PASSED WAS WITHIN THE JURISDICTION OF THE ADDL. COMMISSION ER OF INCOME TAX. THUS, THE ASSESSMENT COMPLETED, BY ADDITIONAL COMMI SSIONER OF INCOME TAX IN THE CASE BEING WITHOUT JURISDICTION, IS VOID AB INITIO. ACCORDINGLY, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED.' 3 .37. IN THE CASE OFBINDAL APPARELS LTD. (SUPRA), DELHI BENCH OF IT A T TOOK A SIMILAR VIEW AND HELD THAT IN VIEW OF DEFINITION OF ASSESSING OF FICER CONTAINED U/S 2(7A), AN ADDITIONAL COMMISSIONER CANNOT BE AN AUTH ORITY TO EXERCISE AND PERFORM ALL OR ANY OF THE POWERS OF THE FUNCTIO NS OF THE ASSESSING OFFICER TO MAKE ASSESSMENT OF INCOME. THE BENCH ANA LYSED THE PROVISIONS OF SECTION 2(7A) AS IT EXISTED PRIOR TO AMENDMENT MADE BY FINANCE ACT, 2007. 3.38. DURING THE COURSE OF HEARI NG, IT WAS ALSO SUBMITTED BY LD. CIT-DR TO DEFEND THE IMPUGNED ASSE SSMENT ORDER THAT IN ANY CASE THE ASSESSMENT ORDER HAS BEEN PASSED BY AN OFFICER OF THE RANK OF ADDITIONAL COMMISSIONER WHICH IS MUCH SUPER IOR TO THE RANK OF ASSISTANT COMMISSIONER AND THUS NO PREJUDICE CAN BE PRESUMED TO HAVE BEEN DONE TO THE ASSESSEE. WE FIND THAT REASONING G IVEN BY THE LD. CIT- DR TO DEFEND THE IMPUGNED ASSESSMENT ORDER DOES NOT HAVE ANY LEGAL FORCE. IT IS WELL SETTLED LAW THAT JURISDICTIONAL C ONDITIONS REQUIRED TO BE FULFILLED BY THE ASSESSING OFFICER MUST BE PERFORME D STRICTLY IN THE MANNER AS HAVE BEEN PRESCRIBED AND IF IT HAS NOT BEEN DONE IN THE MANNER AS PRESCRIBED UNDER THE LAW, THEN IT BECOMES NULLITY I N THE EYES OF LAW. HON'BLE SUPREME COURT IN THE CASE OF CIT V. ANJUM M . H. GHASWALA [20011 252 ITR 1/119 TAXMAN 352 OBSERVED THAT IT IS A NORMAL RULE OF CONSTRUCTION THAT WHEN A STATUE VESTS CERTAIN POWER S IN AN AUTHORITY TO BE EXERCISED IN A PARTICULAR MANNER, THEN THAT AUTHORI TY IS BOUND TO EXERCISE IT ONLY IN THE MANNER PROVIDED IN THE STATUE ONLY. 3.39. HON'BLE BOMBAY HIGH COURT DEALT WITH A SIMILAR SITUATION HI THE CA SE OF GHANSHYAM K. KHABRANI (SUPRA} WHEREIN THE SAID ASSESSEE RAISED A N ISSUE THAT REQUISITE SANCTION PRESCRIBED U/S 151 FOR REOPENING OF AN ASS ESSMENT WAS REQUIRED TO BE OBTAINED BY THE AO FROM JOINT COMMISSIONER OF INCOME TAX WHEREAS THE SAME WAS GRANTED BY COMMISSIONER OF INC OME TAX AND THEREFORE THE SAME WAS NULLITY IN THE EYES OF LAW. REVENUE TOOK A STAND THAT SANCTION WAS GRANTED BY AN OFFICER SUPERIOR IN RANK AND THEREFORE, NO PREJUDICE WAS CAUSED TO THE ASSESSEE. BUT HON'BLE H IGH COURT DID NOT AGREE WITH THE CONTENTION OF THE REVENUE AND OBSERV ED THAT: '........THE EXPRESSION 'JOINT COMMISSIONER' IS DEFINED IN SECTI ON 2(28C) TO MEAN A PERSON APPOINTED TO BE A JOINT COMMISSIONER OF INCO ME TAX OR AN ADDITIONAL COMMISSIONER OF INCOME-TAX UNDER SECTION 117(1). SECTION 151(2) MANDATES THAT THE SATISFACTION HAS TO BE OF THE JOINT COMMISSIONER. THE EXPRESSION HAS A DISTINCT MEANING BY VIRTUE OF THE DEFINITION IN SECTION 2(28C). THE COMMISSIONER OF I NCOME TAX IS NOT A JOINT 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. WHEN THE STATU TE MANDATES THE SATISFACTION OF A PARTICULAR FUNCTIONARY FOR THE EX ERCISE OF A POWER, THE SATISFACTION MUST BE OF THAT AUTHORITY. WHERE A STA TUTE REQUIRES SOMETHING TO BE DONE IN A PARTICULAR MANNER, IT HAS TO BE DON E IN THAT MANNER ONLY............' 3.40. THUS, IN VIEW OF THE LEGAL DISCUSSION MADE ABOVE AND ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 17 FACTS OF THE CASE, IT IS CLEAR THAT IMPUGNED ASSESS MENT ORDER HAS BEEN PASSED WITHOUT AUTHORITY OF LAW HI AS MUCH AS REVEN UE HAS NOT BEEN ABLE TO DEMONSTRATE THAT THE ADDITIONAL COMMISSIONE R OF INCOME TAX WHO HAD PASSED THE ASSESSMENT ORDER HAD VALID AUTHORITY TO PERFORM AND EXERCISE THE POWERS AND FUNCTIONS OF AN ASSESSING O FFICER OF THE ASSESSEE AND TO PASS THE IMPUGNED ASSESSMENT ORDER. UNDER THESE CIRCUMSTANCES, WE HAVE NO OTHER OPTION BUT TO HOLD THE SAME AS NULLITY AND, THEREFORE, THE IMPUGNED ASSESSMENT ORDER IS QU ASHED HAVING BEEN PASSED WITHOUT AUTHORITY OF LAW. 5.1 THE RATIO LAI D DOWN IN THE DECISION OF TATA SONS LTD. (SUPRA) AND OTHER DECISIONS RELIED O N BY THE BENCH THEREIN, APTLY APPLIES TO THE FACTS OF THE PRESENT CASE. THEREFORE, ADHERING TO THE PRINCIPLE OF JUDICIAL DISCIPLINE, WE FOLLOW THE DECISION OF THE TRIBUNAL REFERRED TO ABOVE AND HOLD THAT IN THE FACTS OF THE PRESENT CASE, THE ADDL. CIT IN THE ABSENCE OF A VALID ORDER U/S 120(4)(B) A S WELL AS SECTION 127(1) OF THE ACT COULD NOT HAVE EXERCISED POWERS OF AN AS SESSING OFFICER TO PASS THE IMPUGNED ASSESSMENT ORDER. ACCORDINGLY, TH E IMPUGNED ASSESSMENT ORDER IS ANNULLED/QUASHED. CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE DOES NOT SURVIVE. 8. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH V IEW TAKEN BY THE CO- ORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 2004-0 5, WE ARE OF THE CONSIDERED VIEW THAT THE AO WHO PASSED IMPUGNED ASS ESSMENT ORDER IS HAVING NO JURISDICTION TO PASS ASSESSMENT ORDER IN ABSENCE OF A VALID ORDER PASSED U/S 120(4)(B) AS WELL AS SECTION 127(1 ) OF THE I.T.ACT, 1961, CONSEQUENTLY, THE ASSESSMENT ORDER PASSED BY THE AO IS BAD IN LAW AND LIABLE TO BE QUASHED. ACCORDINGLY, WE QUASHED ASSES SMENT ORDER PASSED BY THE AO. 9. THE ASSESSEE, AS WELL AS THE REVENUE HAVE FILED NUMBER OF GROUNDS CHALLENGING THE FINDINGS OF THE AO IN RESPECT OF IS SUES INVOLVED ON MERITS. SINCE, WE HAVE QUASHED THE IMPUGNED ASSESSMENT ORDE R PASSED BY THE AO, THE GROUND TAKEN BY THE REVENUE AS WELL AS THE ASSESSE BECOMES ACADEMIC IN NATURE AND DOES NOT REQUIRE ANY SPECIFI C ADJUDICATION ITA NO.5090 & 5572/MUM/2012 M/S.TATA SONS LIMITED 18 ACCORDINGLY, GROUNDS TAKEN BY THE ASSESSEE AS WELL AS THE REVENUE ARE NOT SPECIFICALLY ADJUDICATED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 /07/2 019 SD/- (PAWAN SINGH) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 24/07/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//