ACIT CIR 1, THANE V. JYOTI KUMAR KUPTE, THANE

ITA 6489/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9555 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 13-09-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 03-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMERDEEP
• Keywords: Unexplained investment; Transfer pricing
• Section: 143(3); 142(1); 148; 12; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI I.P.BANSAL,JUDICIAL MEMBER & SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.6489/MUM/2010(A.Y. 2005-06) THE ACIT, CIR.1, VARDAAN BLDG., LOWER GROUND FLOOR, WAGLE INDL. ESTATE, MIDC, THANE - 400 604. (APPELLANT) VS. MR.JYOTI KUMAR KUPTE, D-1003, SHREEJI VILLA, ALMEIDA ROAD, THANE. PAN:AEQPK 1523G (RESPONDENT) C.O.NO.25/MUM/2012(A.Y.2005-06) MR.JYOTI KUMAR KUPTE, D-1003, SHREEJI VILLA, ALMEIDA ROAD, THANE. PAN:AEQPK 1523G (CROSS OBJECTOR) VS. THE ACIT, CIR.1, VARDAAN BLDG., LOWER GROUND FLOOR, WAGLE INDL. ESTATE, MIDC, THANE - 400 604. (APPELLANT IN APPEAL) REVENUE BY : SHRI AMERDEEP ASSESSEE BY : SHRI VIJAY MEHTA DATE OF HEARING : 21/11/2012 DATE OF PRONOUNCEMENT : 3 0/11/2012 ORDER PER I.P.BANSAL, J.M, THIS APPEAL IS FIELD BY THE REVENUE AND CROSS OBJE CTION IS FILED BY THE ASSESSEE. BOTH ARE DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-II, THANE DATED 15/05/2010 FOR ASSESSMENT YEAR 2005-06. THE GROUND OF APPEAL RAISED BY THE REVENUE IN ITS APPEAL AND GROUNDS RA ISED BY THE ASSESSEE IN ITS CROSS OBJECTION ARE AS UNDER: ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 2 REVENUES GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE HONBLE CIT(A) WAS JUSTIFIED IN HOLDING TH AT THE ORDER U/S 144 MADE BY THE A.O. IS BAD IN LAW & THEREFORE NULL & V OID AB-INITIO, WITHOUT APPRECIATING THE FACT THAT THE CCIT(CCA), PUNE HAD CONFERRED CONCURRENT JURISDICTION TO THE INCOME TAX OFFICER(HQ)(CIB), PU NE BY ORDER U/S 127 OF THE I.T. ACT DATED 01.08.2007. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) WAS JUSTIFIED IN RELYING ON THE DECISION OF HONBLE ITAT C BENCH, MUMBAI IN THE CASE OF PRAVIN BABULA L ZALA VS ITO (ITA NO. 788/MUM/2009 ) FOR AX. 2005-06, WHEN THE MISCEL LANEOUS APPLICATION U/S 254(2) AGAINST THE IMPUGNED ORDER I S PENDING FOR DECISION OF HONBLE ITAT C BENCH MUMBAI. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) WAS JUSTIFIED IN ALLOWING THE AP PEAL OF THE ASSESSEE, WITHOUT APPRECIATING THE FACTS AND MERIT OF THE CAS E. GROUND OF CROSS OBJECTION: 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT DECIDING THE VALIDITY OR OTHERWISE OF THE ASSESSMENT OF RS.11,60 ,000/- ON ITS MERITS. THE ID. CIT (A) OUGHT TO HAVE ADJUDICATED THE CONTR OVERSY IN ACCORDANCE WITH LAW AND ON THE BASIS OF THE RECORD AND DELETED THE ADDITION OF RS.11,60,000/- BROUGHT TO TAX BY THE ASSESSING OFFI CER AS UNEXPLAINED INVESTMENT. 2. THE ASSESSEE IN THE PRESENT CASE HAS BEEN ASSESS ED BY ITO,(HQ)(CIB),PUNE VIDE ORDER DATED 26/12/2007 PASS ED UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT). AMOUNT OF R S.11,60,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE ON THE BASIS OF ANNU AL INFORMATION RETURN BEING CASH DEPOSITS MADE IN SAVING BANK ACCOUNTS O F THE ASSESSEE IN FINANCIAL YEAR 2004-05. LD. CIT(A) HAS QUASHED THE ASSESSMENT ORDER ON THE GROUND THAT AO WHO HAS ASSESSED THE ASSESSEE DID NOT HAVE JURISDICTION TO ASSESS AS THE ASSESSEE WAS REGULAR ASSESSEE WITH T HE ITO, THANE. THE WHOLE DISPUTE REVOLVES AROUND THE JURISDICTION WHIC H ACCORDING TO DEPARTMENT WAS ACQUIRED BY ITO, PUNE VIDE LETTER O F CHIEF COMMISSIONER OF ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 3 INCOME TAX (CCIT), PUNE DATED 1/8/2007, COPY OF WHI CH HAS BEEN PLACED ON RECORD. THE CONTENT OF SAID LETTER IS REPRODUCED BELOW: ORDER UNDER SECTION 120 OF THE INCOME TAX ACT,1961 . IN EXERCISE OF THE POWERS CONFERRED BY SECTION 120 OF THE INCOME TAX ACT AND INSTRUCTION NO.5/2006 DATED 1 ST AUGUST, 2006, I HEREBY ORDER THAT THE ASSESSING OFFICERS WORKING UNDER THE CONTROL OF COMMISSIONER OF INCOME TAX (CIB), PUNE AND THE ADDL . COMMISSIONER OF INCOME TAX (CIB), PUNE, AS MENTIONED BELOW SHALL AC T AS DESIGNATURED ASSESSING OFFICERS (DAOS) AND SHALL EXERCISE CONC URRENT JURISDICTION WITH RESPECT TO THE ASSESSEES FALLING WITHIN THE JU RISDICTION OF COMMISSIONERS OF INCOME TAX 1,II,III, IV,V, PUNE, C OMMISSIONER OF INCOME TAX-I&II, KOLHAPUR, COMMISSIONERS OF INCOME TAX I & II, NASIK, COMMISSIONER OF INCOME TAX, AURANGABAD; COMMISSIONE RS OF INCOME TAX-I, II & III, THANE, COMMISSIONER OF INCOME TAX (CENTRAL), PUNE AND DIRECTOR OF INCOME TAX (TRANSFER PRICING), PUNE WHO SE NAMES APPEAR IN ANNUAL INCFORMATION RETURN (AIR) DATA RELATING TO P UNE REGION ARE ARE WHOS PANS ARE NOT MENTIONED IN AIR DATA. S.NO. ASSESSING OFFICER. 1. INCOME TAX OFFICER (HQ) (CIB), PUNE 2. INCOME TAX OFFICER (CIB)-8, PUNE. 2. THE DAOS SHALL HAVE CONCURRENT JURISDICTION OV ER THE CASES FOR ISSUING NOTICES U/S. 142(1). IN CASE OF NON-EXISTI NG ASSESSEES (WHO HAVE NEVER FILLED A RETURN OF INCOME EARLIER) THE D AO SHALL ASSESS THE CASE U/S. 143(3) OR 144 AS THE CASE MAY BE. IN AL L OTHER CASES THE DAOS SHALL TRANSFER THE AIR INFORMATION TO THE JUR ISDICTION ASSESSING OFFICER. 3. THIS ORDER IS WITH IMMEDIATE EFFECT AND UNTIL FU RTHER ORDER. 2.1 THE ABOVE LETTER WAS ISSUED IN PURSUANCE OF INS TRUCTION NO.6 OF 2006 DATED 1/8/2006 ISSUED BY CBDT. PARA -10 OF THE SAID INSTRUCTION READ AS UNDER: IN ORDER TO SUSTAIN PAN OF PERSONS IN RESPECT OF TRANSACTIONS WHERE PAN IS NOT QUOTED BY THE AIR FILED, THE DIRECTORATE OF INC OME TAX (SYSTEMS) HAS ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 4 DEVELOPED A NEW SEARCH ENGINE MIPPRA (MULTI ITERATI VE PHONETIC PATTERN RECOGNITION ALGORITHM). IT HAS ACCORDINGLY BEEN DEC IDED AS UNDER: A) NO FRESH NOTICE U/S. 142(1) SHALL HENCEFORTH BE ISSUED IN PURSUANCE TO PARA 5 (ON PAGES 3-4) OF LETTER OF THE DIT (SYS TEMS) DATED 20TH DEC 2005 (COPY ENCLOSED) IN RESPECT OF CASES HAVING AIR INFORMATION BUT NO PAN FRESH NOTICES IN THIS CATEGORY OF CASES WILL BE ISSUED ONLY IN ACCORDANCE WITH (D) AND (E) BELOW. B) AFTER RUNNING THE MIPPRA CASES IN RESPECT OF WHI CH PANS ARE IDENTIFIED WILL BE DEALT WITH IN ACCORDANCE WITH PA RAGRAPHS 3 TO 9 ABOVE. C) IN RESPECT OF THE NON-PAN CASES (WHOSE PAN COULD NOT BE IDENTIFIED EVEN AFTER MIPPRA), NOTICES U/S. 142(1) WILL BE PRI NTED CENTRALLY AT THE DIRECTORATE OF INCOME TAX (SYSTEMS) AND DISPATCHED BY END OF OCTOBER, 2006 TO THE CCIT AT THE 48 STATIONS ALONG WITH PART Y-WISE DETAILS OF TRANSACTIONS CONTAINED IN THE AIR AND THE INFORMATI ON SOURCE. D) FOR THE PURPOSE OF ISSUANCE OF THESE NOTICES AND TAKING STATUTORY ACTION THEREUPON, THE BOARD HAS DECIDED THAT CADRE CONTROLLING CCIT SHOULD PASS ORDERS CONFIRMING CONCURRENT JURISDICTI ON TO ONE OR MORE ASSESSING OFFICERS (HEREINAFTER REFERRED TO AS THE DESIGNATED ASSESSING OFFICER), DEPENDING ON THE WORKLOAD, AT THE STATION S WHERE THE ASSESSEES (TO WHOM NOTICES U/S:142(1) ARE TO BE ISS UED) ARE LOCATED. E) THE CCIT SHALL PASS ON THE NOTICES ALONG WITH TH E ALL? INFORMATION TO THE DESIGNATED ASSESSING OFFICERS WHO SHALL ISSUE T HE NOTICE U/S. 142(1) AFTER FILING IN ALL THE RELEVANT PARTICULARS AND DE AL WITH THESE CASES AS UNDER (I) IF, ON THE BASIS OF REPLY TO THE NOTICE, IT IS FOUND THAT THE PERSON IS AN EXISTING ASSESSEE THE NOTICE ALONG WITH THE REPLY / RETURN AND THE AIR INFORMATION SHOULD BE TRANSFERRED BY THE DESIGNATED ASSESSING OFFICER TO THE JURISDICTIONAL ASSESSING OFFICER SHALL THEN DEAL WITH SUCH CASES AS UNDER (A) IF THE RETURN WAS FILED PRIOR TO THE ISSUE OF THE NOTICE, THE JURISDICTIONAL ASSESSING OFFICER SHALL ASSESS THE CASE U/S. I43(3)/144 (B) IF THE RETURN WAS FILED PRIOR TO THE ISSUE OF T HE NOTICE, THE JURISDICTIONAL ASSESSING OFFICER (BOTH IN NETWORKED AND NON-NET WORKED STATIONS) SHOULD MANUALLY APPLY THE CFR CRITERION O R THE PROPERTY CRITERION OR THE PROPERTY CRITERION ( AS THE CASE M AY BE) FOR SELECTING CASES FOR SCRUTINY. ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 5 (C) WHERE THE TIME FOR ISSUANCE OF NOTICE U/S. 143 (2) HAS EXPIRED THE JURISDICTIONAL ASSESSING OFFICES MAY CONSIDER ISSUA NCE OF NOTICE U/S. 148 AS PER LAW, AFTER RECORDING REASONS THEREFORE. THE REASONS TO BE RECORDED BY THE ASSESSING OFFICERS SHOULD BE ELABOR ATE IN EACH SUCH CASE, MENTIONING THE FACTS THEREOF, AND SHOULD STA ND THE TEST OF LAW. (II) WHERE THE PERSON IS NOT AN EXISTING ASSESSEE ( HAS NEVER FILED A RETURN OF INCOME EARLIER), THE DESIGNATED ASSESSING OFFICER S HALL ASSESS THE CASE U/S. 143(3)/144. 2.2 THE LD. CIT(A) WHILE HOLDING SO HAS RELIED UPO N THE DECISION OF ITAT MUMBAI IN THE CASE OF PRAVIN BALUBHAI ZALA, IN ITA NO.778/MUM/2009, IN WHICH ALMOST ON SIMILAR CIRCUMSTANCES THE ASSESSMEN T WAS QUASHED. IT IS THE CASE OF DEPARTMENT THAT LD. CIT(A) HAS WRONGLY HELD THAT THE ASSESSMENT IS NULL AND VOID WITHOUT CONSIDERING THE FACT THAT CCIT, PUNE HAD CONFERRED CONCURRENT JURISDICTION TO ITO (HQ)(CIB), PUNE BY ORDER DATED 1/8/2007 WHICH HAS ALREADY BEEN REPRODUCED ABOVE. IT IS ALS O THE CASE OF REVENUE THAT THE CASE OF PRAVIN BALUBHAI ZALA VS.ITO (SUPR A) HAS WRONGLY BEEN RELIED UPON BY THE LD. CIT(A) AS A MISCELLANEOUS APPLICATI ON HAS ALREADY BEEN FILED AGAINST THE SAID ORDER WHICH IS PENDING BEFORE C BENCH MUMBAI. 2.3 AS AGAINST THAT IT IS THE CASE OF THE ASSESSEE THAT SINCE THE ASSESSEE IS REGULARLY BEING ASSESSED BY ITO, THANE, EVEN ACCORD ING TO THE LETTER DATED 1/8/2007 ISSUED BY CCIT, ITO(HQ)(CIB), PUNE DID NOT HAVE ANY JURISDICTION. IT IS ALSO THE CASE OF ASSESSEE THAT THOUGH INITIAL LY THE TRIBUNAL HAS RECALLED THE ORDER IN THE CASE OF PRAVIN BALUBHAI ZALA VS. ITO(SUPRA), WHICH IS RELIED UPON BY LD. CIT(A) BUT SUBSEQUENTLY VIDE ORDER DATE D 28/3/2012 IN ITA NO.788/MUM/2009 THE TRIBUNAL HAS AGAIN HELD THAT WH EN ITO, THANE HAD JURISDICTION ON THE ASSESSEE AND ITO (HQ)(CIB), PUN E WAS DESIGNATED OFFICER, HE WAS REQUIRED TO TRANSFER THE INFORMATION GATHERE D FROM AIR HAVING JURISDICTION OF THE ASSESSEE I.E. ITO, THANE AND IT WAS HELD THAT ASSESSMENT ORDER PASSED BY ITO (HQ)(CIB), PUNE WAS WITHOUT JU RISDICTION AND WAS IN ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 6 VIOLATION OF INSTRUCTION ISSUED BY CBDT. SINCE ON THE ISSUE OF JURISDICTION ITSELF THE ASSESSMENT ORDER WAS CANCELLED, THE BEN CH DID NOT GO INTO OTHER ISSUES RAISED IN THE APPEAL. THE RELEVANT FINDING OF ITAT IN THE SAID ORDER ARE AS FOLLOWS: 5. AS PER THE SAID INSTRUCTIONS, MORE PARTICULAR LY, IN VIEW OF PARA 10(E), IF, ON THE BASIS OF THE REPLY ISSUED BY THE DESIGNA TED A.O IT IS FOUND THAT THE PERSON IS AN EXISTING ASSESSEE THEN THE INFORMATION ALONG WITH THE REPLY OR RETURN AND THE AIR INFORMATION SHOULD BE SENT TO TH E AO HAVING THE JURISDICTION OVER SAID ASSESSEE AND IT IS THE JURISDICTIONAL A.O WHO SHOULD DEAL WITH SUCH CASES. IN THE PRESENT CASE, ADMITTEDLY, THE AO WAR D 3(2), THANE IS HAVING JURISDICTION ON ASSESSEE AND THE ITO (HQ)CIB, PUNE WAS A DESIGNATED OFFICER. HENCE, HE/SHE SHOULD HAVE TRANSFERRED THE INFORMATI ON GATHERED FROM THE AIR TO THE AO HAVING THE JURISDICTION OVER THE ASSESSEE I.E. THE I.T.O WARD 3(2), THANE. AS PER THE EVIDENCE ON RECORD, WE FIND THAT THE ASSESSEE HAS INFORMED ITO (PUNE) THAT HE IS ASSESSED BY THE ITO WARD 3(2 ) AND IN SUCH SITUATION AS HE WAS EXISTING ASSESSEE THE ITO (HQ)(CIB)(PUNE) HA S NO JURISDICTION TO FRAME THE ASSESSMENT OF THE ASSESSEE. THERE IS NO JURISD ICTION TO FRAME THE ASSESSMENT OF THE ASSESSEE. THERE IS NO QUARREL ON THE WELL SETTLED PROPOSITION THAT THE INSTRUCTIONS ISSUED BY THE CBDT ARE BINDIN G ON ALL THE TAX AUTHORITIES AND IN VIEW OF INSTRUCTION NO.6 OF 2006 DATED 1 ST AUGUST, 2006 IN VIEW OF SEC.119 OF THE INCOME TAX ACT. IT IS COMMON FEATU RE THAT UNFORTUNATELY INSTRUCTIONS ISSUED BY HIGHEST FORUM LIKE CBDT ARE ALWAYS FLOUTED BY THE OFFICERS LIKE PRESENT ONE AND SUCH CASES BOARD HAS TO TAKE FIRM DISCIPLINARY ACTIONS AS IT CAUSES SERIOUS HARDSHIP AND ALSO HARA SSMENT TO THE ASSESSEE. WE, THEREFORE, HOLD THAT THE ASSESSMENT ORDER PASSE D BY THE ITO (HQ) CIB, PUNE IS WITHOUT JURISDICTION AS IT IS IN VIOLATION OF INSTRUCTIONS ISSUED BY THE CBDT. WE ACCORDINGLY CANCEL THE ASSESSMENT ORDER PASSED BY THE ITO (HQ.)(CIB), PUNE AND ASSESSEES APPEAL IS ALLOWED O N THIS GROUND. AS THE ASSESSMENT ORDER ITSELF IS CANCELLED ON THE ISSUE O F JURISDICTION WE CANNOT CONSIDER IT NECESSARY TO GO INTO OTHER ISSUES IN TH IS CASE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. LD. A.R HAS PLACED A COPY OF AFOREMENTIONED ORDER ON RECORD AND A COPY WAS ALSO GIVEN TO LD. D.R. 3. WE HAVE HEARD BOTH THE PARTIES AT LENGTH. IT WA S CONTENDED BY LD. DR THAT AS ASSESSEE DID NOT RESPOND TO THE NOTICES ISS UED BY THE AO, THEREFORE, AO COULD NOT KNOW THAT WHERE OR NOT THE ASSESSEE W AS BEING ASSESSED AT ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 7 THANE. THUS, ITO, PUNE HAD THE JURISDICTION OVER T HE ASSESSEE IN TERMS OF LETTER DATED 1/8/07 ISSUED BY CCIT, PUNE. LD. CIT( A) HAS WRONGLY CANCELLED THE ASSESSMENT WITHOUT APPRECIATING THAT ITO, PUNE HAD THE JURISDICTION OVER THE ASSESSEE. 3.1 IT WAS THE CASE OF LD. A.R THAT THE ASSESSEE H AS PLEADED BEFORE CIT(A) THAT NOTICE ISSUED BY AO ,PUNE WAS NEVER RECEIVED H IM AND THUS THERE WAS NO OCCASION WITH THE ASSESSEE TO SAY THAT HE WAS AS SESSED AT THANE. LD. A.R SUBMITTED THAT IRRESPECTIVE OF THIS FACT THAT WHEN ITO, PUNE DOES NOT HAVE JURISDICTION OVER THE ASSESSEE THEN THE FACT THAT W HETHER OR NOT NOTICE WAS RECEIVED BY THE ASSESSEE WILL BE IRRELEVANT AND THE ASSESSMENT HAS TO BE CONSIDERED TO BE WITHOUT JURISDICTION AND THE FATE WILL REMAIN SAME. 4. AFTER CAREFUL CONSIDERATION OF THE SUBMISSION O F BOTH THE PARTIES WE FOUND THAT FINDING OF FACT RECORDED LD. CIT(A) THAT THE ASSESSEE WAS BEING ASSESSED AT THANE HAS NOT BEEN CONTROVERTED BY THE REVENUE BY BRINGING ANY POSITIVE MATERIAL ON RECORD TO SHOW THAT IT WAS FAC TUALLY INCORRECT. SIMILARLY, THOUGH IT HAS BEEN MENTIONED IN THE ASSESSMENT ORDE R THAT NOTICE WAS SERVED ON THE ASSESSEE BY ITO, PUNE BUT IT HAS NOT BEEN BROUGHT ON RECORD THAT SUCH STATEMENT OF AO IN THE ASSESSMENT ORDER I S CORRECT. LOOKING INTO ENTIRETY OF THESE FACTS, WE FIND THAT THIS ISSUE IS COVERED BY THE AFOREMENTIONED DECISION OF TRIBUNAL DATED 28/3/2012 IN THE CASE OF PRAVIN BALUBHAI ZALA, (SUPRA). HERE THE FACTS OF THE CAS E MAY BE LITTLE BIT DIFFERENT AS THE ASSESSEE HAD RESPONDED TO THE NOTICE ISSUED BY ITO, PUNE BUT THE FACTS REMAIN THAT ASSESSEE WAS BEING ASSESSED AT TH ANE. HOWEVER, THE SECOND DECISION RELIED UPON BY LD. AR, WHICH IS DAT ED 28/7/2011, IN THE CASE OF MRS. SAYALI (APARNA) S. PATIL VS. ITO, 201 1-(IDI) GJX-5257- TPUN, COPY OF THE SAME WAS FILED BEFORE US AND ALSO GIVEN TO LD. DR, IN SIMILAR CIRCUMSTANCES IT WAS HELD THAT THE ASSESSMENT FRAME D BY THE AO IN THE ABSENCE OF HAVING JURISDICTION IS NULL AND VOID. T HE TRIBUNAL WHILE HOLDING ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 8 SO HAS RECORDED THE SUBMISSIONS OF THE DEPARTMENT T HAT ASSESSEE DID NOT BOTHER TO RESPOND THE NOTICES ISSUED BY ITO(HQ)(CIB ). THE RELEVANT PORTION OF THE SAID ORDER IS ALSO REPRODUCED BELOW. 5. THE LD. D.R. IN RE-JOINDER SUBMITTED THAT THE FIRST APPELLATE AUTHORITY WAS DIFFERENT IN THE CASE OF NITIN B. POTTE, THAN THE F IRST APPELLATE AUTHORITY WHO HAS DECIDED THE FIRST APPEAL IN THE CASE OF THE ASSESSE E. THE ASSESSEE NEVER BOTHERED TO RESPOND THE NOTICES ISSUED BEFORE THE I TO (CIB), THUS, THERE WAS NO OCCASION FOR THE ITO(CIB) TO KNOW THAT THE ASSESSEE IS ASSESSED BY THE REGULAR A.O HAVING JURISDICTION OVER THE ASSESSEE. 6. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT EVEN AS PER THE ORDER DT. 1.8.2007 OF THE LD. CHIEF CIT (PUNE) PASSED U/S. 12 0 OF THE I.T. ACT REFERRED BY LD. D.R, THE ITO (HQ)(CIB) WAS HAVING NO JURISDICTI ON OVER THE ASSESSEE FOR FRAMING THE ASSESSMENT IN QUESTION, SINCE UNDISPUTE DLY, THE ASSESSEE HAD ALREADY FILED RETURN OF INCOME FOR THE YEAR UNDER C ONSIDERATION ON 31ST MARCH 2006 WITH THE AO HAVING REGULAR JURISDICTION OVER T HE ASSESSEE. THE SAID ORDER DT. 1.8.2007 OF THE LD. CHIEF CIT VIDE PARA NO. 2 H AS MADE IT CLEAR AS FOLLOWS : 2. THE DAOS SHALL HAVE CONCURRENT JURISDICTION OVE R THE CASES FOR ISSUING NOTICES U/S 142(1). IN CASE OF NON EXISTING ASSESSE ES HAVE NEVER FILED A RETURN OF INCOME EARLIER) THE DAO SHALL ASSESS THE CASE U/ S. 143(3) OR 144, AS THE CASE MAY BE. IN ALL OTHER CASES THE DAOS SHALL TRAN SFER THE AIR INFORMATION TO THE JURISDICTIONAL ASSESSING OFFICERS (JAO).' WE THUS FIND SUBSTANCE IN THE OBJECTION OF THE LD. A.R. THAT THE ITO (HQ)(CIB) WAS HAVING NO JURISDICTION TO FRAME ASSESSMENT U/S. 144 OF THE ACT IN THE CASE OF THE ASSESSEE OR TO ISSUE NOTICES U/S. 142(1) OF THE ACT OR OTHER TO THE ASSESSEE. THUS, THE ASSESSMENT FRAMED BY HIM IN ABS ENCE OF HAVING JURISDICTION IS NULL AND VOID. IT IS HELD AS SUCH. 4.1 RESPECTFULLY FOLLOWING THE AFOREMENTIONED DECIS ION OF TRIBUNAL, WE FIND THAT LD. CIT(A) HAS COMMITTED NO ERROR IN HOLDING T HAT ASSESSMENT FRAMED BY ITO(HQ)(CIB), PUNE IS NULL AND VOID . WE DECLINE T O INTERFERE IN SUCH FINDINGS RECORDED BY LD. CIT(A). THE DEPARTMENTAL APPEAL IS DISMISSED. 5. NOW COMING TO THE CROSS OBJECTION FILED BY THE A SSESSEE, AS ASSESSMENT HAS BEEN HELD TO BE NULL AND VOID, NO ADDITION REMA INS WHICH CAN BE AGITATED ITA NO.6489/MUM/2010(A.Y. 2005-06)& CO NO.25/M/2012 9 THROUGH CROSS OBJECTION. THEREFORE, CROSS OBJECTIO N HAS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED OF HAVING BECOME INFRUCT UOUS. 6. IN THE RESULT, APPEAL AS WELL AS CROSS OBJECTION ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 30 TH DAY OF NOV. 2012 SD/- SD/- (RAJENDRA ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30TH NOV. 2012. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R I BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.