KALIKANTA DEBNATH, RAIPUR,RAIPUR V. .INCOME TAX OFFICER, WARD-1(1), RAIPUR, RAIPUR

ITA 487/RPR/2024

AI Insights

The case involves an appeal by Shri Kalikanta Debnath against the order passed by the Income Tax Officer (ITO), Ward-1(1), Raipur, which was based on an assessment order under sections 147 and 143(3) of the Income Tax Act, 1961. The primary contention was the improper assumption of jurisdiction by the ITO-1(1), Raipur, without a valid transfer order under section 127 of the Act, as the case was allegedly transferred from ITO-1(4), Raipur to ITO-1(1), Raipur. Additionally, the assessee challenged the validity of the notice issued under section 148, claiming it was barred by limitation. The CIT(Appeals) upheld the assessment, leading to the present appeal before the ITAT.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 35818 (ITAT-RAIPUR)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-11-2024
• Other Referred Cases: Sarita Jain Vs. ITO, Roop Das Vs. ITO, Ward-2(1), Bhilai, D. Craft Entertainment P. Ltd. Vs. ITO, Kusum Goyal Vs. ITO & Ors, Balaji Enterprise Vs. ACIT, Kanwar Singh Saini Vs. High Court of Delhi, Jindal Power Limited Vs. Jt. CIT, Range-1, Bilaspur, Peter Vaz Vs. CIT, CIT Vs. Ramesh D Patel, CIT Vs. Laxman Das Khandelwal
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: VEEKAAS S. SHARMA
• Keywords: Set aside; Opportunity of being heard; Additional evidence; Invalid notice; Unexplained investment; Gift; Principle of natural justice; Assessment record; Competent authority
• Section: 147; 148; 144; 143(3); 292BB; 143(2); 201; 271(1)(c); 153A; 69; 153C; 158BD

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी रवीश सूद, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER आयकर अपील सं. / ITA No.487/RPR/2024 Ǔनधा[रण वष[ / Assessment Year : 2011-12 Shri Kalikanta Debnath House No.20/9, Block-20, Vill & Post : Mana Camp, Raipur-492 001 (C.G.) PAN : AXPPD6574N .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer, Ward-1(1), Raipur (C.G.) ……Ĥ×यथȸ / Respondent Assessee by : Shri Veekaas S. Sharma, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 04.12.2024 घोषणा कȧ तारȣख / Date of Pronouncement : 09.12.2024 2 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the ADDL/JCIT(A), Faridabad, dated 19.09.2024, which in turn arises from the order passed by the A.O under Sec. 147 r.w.s.143(3) of the Income-tax Act, 1961 (in short ‘the Act’) dated 29.12.2018 for the assessment year 2011-12. The assessee has assailed the impugned order on the following grounds of appeal: “1. On the facts and in the circumstances of the case the assessment order passed u/s.147 r.w.s. 143(3) of the Income Tax Act, 1961 is illegal, bad-in-law & void-ab- initio inasmuch as the case of the assessee was transferred from Learned ITO 1(4), Raipur to Learned ITO-1(1). Raipur who subsequently passed the assessment order, whereas the assessment order is silent about the order u/s. 127 for the transfer of case from Learned ITO 1(4), Raipur to Learned ITO-1(1), Raipur which implies that there is no such order u/s. 127 regarding transfer of the case to Learned ITO-1(1), Raipur which renders the entire assessment proceeding bad-in- law, illegal and void-ab- initio. It is prayed that the assessment order passed u/s. 147 r.w.s. 143(3) may kindly be declared as illegal, bad- in-law and void-ab- initio and consequential enhancement of Rs. 20,01,000/- made to the total income may kindly be directed to be deleted. 2. On the facts and in the circumstances of the case, the assessment order passed u/s.147 r.w.s. 143(3) of the Income Tax Act, 1961 pertaining to A.Y 2011-12 is illegal, bad-in-law and void-ab-initio inasmuch as the proceedings have culminated from notice u/s.148 purportedly dated 27.03.2018 issued to the assessee on 3 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 11.04.2018 is barred by limitation as the statutory time limit for issuance of notice u/s 148 in terms of provisions of section 149 of the Income Tax Act, 1961 expired on 31.03.2018, thus, the notice u/s 148 dated 27.03.2018 issued on 11.04.2018 is invalid and consequently the assessment framed based on such invalid notice is also invalid and bad-in-law. It is prayed that the assessment order passed u/s.147 r.w.s 143(3) may kindly be declared as illegal, bad-in-law and void-ab-initio and consequential enhancement of Rs.20,01,000/- made to the total income may kindly be directed to be deleted. 3. On the facts and in the circumstances of the case the assessment order passed by the Learned A.O. and Confirmed by Learned CIT(A) is unjustified and inappropriate inasmuch as the Learned A.O. had made the addition of Rs. 20,01,000/- by invoking section 69 of the Income Tax Act, 1961 based on the presumption that the assessee could not be assumed to have savings in his possession without considering the long history of revenue generation of the assessee and bonafide explanation regarding source of cash deposit, thus, the enhancement of Rs.20,01,000/- made to the total income may kindly be directed to be deleted. 4. On the facts and in the circumstances of the case, the Learned AO has erred on facts and in law in adding entire cash deposited in Bank amounting to Rs.20,01,000/- as unexplained investment by invoking section 69 without considering the fact that the assessee had made cash deposit out of legitimate and explainable sources, as such, the addition is contrary to facts, law and legislative intent, hence, it is prayed that the addition of Rs.20,01,000/- made by the Learned A.O may kindly be deleted. 5. The Appellant craves leave to add, amend, alter vary and/ or withdraw any or all the above grounds of Appeal.” 4 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 2. Succinctly stated, the A.O, based on information that the assessee had during the subject year made cash deposits of Rs.20,01,000/- in his savings bank account, but had not filed his return of income for the year under consideration, i.e. A.Y.2011-12, initiated proceedings u/s. 147 of the Act. In compliance, the assessee filed his return of income on 26.04.2018, declaring an income of Rs.17,850/-. 3. During the course of the assessment proceedings, the A.O called upon the assessee to put forth an explanation as regards the cash deposits of Rs.20.01 lacs (supra) made in his savings bank account. In reply, it was, inter alia, stated by the assessee vide his reply dated 04.12.2018 that as he had during the year under consideration decided to become a spiritual teacher, therefore, to ensure a decent livelihood for his family members, he had parked his accumulated life savings etc. in his bank account. It was stated by him that he had made the cash deposits out of his various streams of income/accumulated funds. Elaborating further, the assessee claimed that the cash deposits of Rs.20.01 lacs were sourced out of, viz. (i) cash sale proceeds of agricultural land: Rs.2,66,000/-; (ii) sale of stock of cloth material: Rs.7,47,600/-; and (iii) accumulated savings of the past years. However, the A.O did not find favour with the aforesaid 5 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 explanation of the assessee. Accordingly, the A.O vide his order passed u/s.147 r.w.s. 143(3) of the Act, dated 29.12.2018 after treating the amount of Rs.20,01,000/- as the assessee’s unexplained investment u/s.69 of the Act, determined the income of the assessee at Rs.20,18,850/-. 4. Aggrieved, the assessee carried the matter in appeal before the ADDL/JCIT(A) but without success. The assessee in the course of the appellate proceedings apart from assailing the addition of Rs.20.01 lacs u/s. 69 of the Act on merits, had challenged the validity of the jurisdiction that was assumed by the A.O u/s. 147 r.w.s. 143(3) of the Act based on his multi-facet contentions, viz. (i) that the ITO-1(1), Raipur had wrongly assumed jurisdiction and framed the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018 in absence of any order of transfer u/s.127 of the Act, based on which, the case of the assessee was transferred to him from ITO-1(4), Raipur, i.e. the A.O who had issued notice u/s. 148 of the Act, dated 27.03.2018; (ii) that the assessment framed by the A.O vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018 was illegal and bad in the eyes of law as the notice u/s.148 of the Act, dated 27.03.2018 that was issued to the assessee on 11.04.2018 was time barred; and (iii) that as notice u/s. 148 of the Act, dated 6 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 27.03.2018 did not bear any signature either digitally or manually, therefore, the assessment order passed by the A.O based on the same u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018 was liable to be quashed. Also, the assessee assailed the merits of the addition of Rs.20.01 lacs that was made by the A.O. 5. Apropos the challenge to the validity of the jurisdiction that was assumed by the A.O both for initiating proceedings u/s. 147 of the Act and framing of the consequential assessment, the CIT(Appeals) called for a “remand report” from the A.O. In response, the A.O filed a “remand report” dated 15.07.2024 wherein, he had, inter alia, assailed the challenge of the assessee as regards the validity of the jurisdiction that was assumed by the A.O. i.e. ITO-1(1), Raipur for framing the assessment in absence of any order of transfer u/s.127 of the Act. For the sake of clarity, the “remand report”, dated 15.07.2024 is culled out as under: 7 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 8 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 9 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 10 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 11 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 12 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 6. Thereafter, the CIT(Appeals) in the backdrop of certain additional evidence that were filed by the assessee vide his letter dated 13 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 22.07.2024 once again called for a “remand report” from the A.O on 26.07.2024. Ostensibly, the A.O in his reply (as culled out by the CIT(A) in his order), had once again forwarded the same “remand report”, dated 15.07.2024, and apparently did not rebut the admission of the additional evidence as was sought by the assessee, Page 15-20 of CIT(Appeals) order. 7. The CIT(Appeals) in the backdrop of the documents as were available on record proceeded with and disposed of the appeal after referring to the reasons recorded by the A.O as regards the addition made by him. It was observed by him that as the assessee had failed to substantiate his claim that he was engaged in the bazaar haat and pheri sale of cloth material, and had income during the past years which was below the basic exemption limit, as well as his claim of having carried out agricultural land (Rs.2,66,000/-) and stock of cloth material (Rs.7,47,600/-), therefore, his explanation as regards the source of cash deposits in his bank account did not merit acceptance. 8. Apropos the capital account and balance sheet that was filed by the assessee before him, the CIT(Appeals) observed that apparently the same was prepared as an afterthought to explain the source of the subject cash deposits made by him in his bank account. Apropos the validity of the jurisdiction that was assumed by the A.O u/s. 147 of the 14 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Act for framing the assessment, the CIT(Appeals) subscribed to the A.O’s observation that as the assessee had not raised any objection to the jurisdiction of the A.O as per Section 124(3) of the Act in the course of the assessment proceedings, therefore, as per provisions of Section 292BB of the Act, he was disentitled from raising such objection in the course of the present proceedings. For the sake of clarity, the observations of the CIT(Appeals) on the aforesaid issue are culled out as under: “5.3 In this case notice u/s 148 of the Act was issued by ITO-1(4), Raipur on 27/03/2018. The AO has submitted that the assessee had not raised objection over jurisdiction before AO within one month from the date of service of notice. Accordingly, the appellant is not entitled to raised objection over the jurisdiction of the AO, as per Section 124(3) of the IT Act. Section 124(3) is re-produced as follows:- \"Section: 124(3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer- (a) where he has made a return under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or subsection (2) of section 143 or after the completion of the assessment, whichever is earlier.” 5.4 Further, since the appellant did not raised objection over jurisdiction before the AO, till the completion of assessment proceedings; as per provisions of Section 292BB of the Act, the appellant is not entitled to raised objection over the jurisdiction of the AO. Section 292BB is re-produced as follows:- “Notice deemed to be valid in certain circumstances. 292BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him has been duly served upon him in time in accordance with 15 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall be apply where the assessee has raised such objection before the completion of such assessment or reassessment.\" 9. Apropos the assessee’s claim that the notice u/s. 148 of the Act, dated 27.03.2018 was issued to the assessee on 11.04.2018, thus, the same was barred by limitation, the CIT(Appeals) after consulting scanned copy of the acknowledgement that was filed before him, as per which, stamp of the postal authority was marked as 31.03.2018, rejected the aforesaid claim of the assessee. Accordingly, the CIT(Appeals) based on his aforesaid observations dismissed the appeal. 10. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before the Tribunal. 11. I have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 12. Shri Veekaas S. Sharma, Ld. Authorized Representative (for short ‘AR’) for the assessee, at the threshold of hearing of the appeal, 16 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 submitted that the A.O had wrongly assumed jurisdiction and framed the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018. Elaborating on his contention, the Ld. AR submitted that though the notice u/s. 148 of the Act, dated 27.03.2018 was issued by the ITO-1(4), Raipur but thereafter, de-hors any order of transfer u/s. 127 of the Act, the ITO-1(1), Raipur had assumed jurisdiction and framed the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018. The Ld. AR submitted that though the assessee had, inter alia, assailed the validity of the assessment before the CIT(Appeals), but the latter held a firm conviction that as the assessee had not raised any objection regarding the jurisdiction of the A.O the in the course of the assessment proceedings as per Section 124(3) of the Act and Section 292BB of the Act, therefore, he was divested from objecting the same for the first time in the course of the proceedings before him. 13. Dr. Priyanka Patel, the Ld. Sr. Departmental Representative ( for short ‘DR’) relied on the orders of the lower authorities. 14. I have given thoughtful consideration to the contentions advanced by the Ld. Authorized Representatives of both the parties as regards the validity of the jurisdiction that was assumed by the A.O for framing the assessment vide his order passed u/s. 147 r.w.s. 143(3) of 17 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 the Act, dated 29.12.2018 in absence of any order of transfer u/s. 127 of the Act. Admittedly, it is a matter of fact borne from record that notice u/s. 148 of the Act, dated 27.03.2018 was issued by the ITO- 1(4), Raipur but thereafter, the assessment had been framed by the ITO-1(1), Raipur vide his order passed u/s.147 r.w.s. 143(3) of the Act, dated 29.12.2018. At this stage, I may herein observe, that as notice u/s. 148 of the Act, dated 27.03.2018 was issued by the ITO-1(4), Raipur, therefore, the ITO-1(1), Raipur could not have assumed jurisdiction to frame the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018 without any order of transfer u/s. 127 of the Act. I find that the said issue had been deliberated upon by the ITAT, Raipur, “SMC” Bench, in the case of Sarita Jain Vs. ITO, ITA No.260/RPR/2023, dated 24.06.2024, wherein based on exhaustive deliberations, the Tribunal had emphasized upon the indispensable statutory requirement of passing of a transfer order u/s.127 of the Act where the case of the assessee was to be transferred from one A.O to another A.O. For the sake of clarity, the observations of the Tribunal are culled out as under: “13. I have thoughtfully considered the contentions of the Ld. Authorized Representatives of both the parties in the backdrop of the material available on record. Before proceeding any further, I deem it fit to cull out the provisions of Section 127 of the Act, which reads as under: \"127. (1) The Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal 18 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,— (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place. (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred.\" (emphasis supplied by me) 14. Admittedly, it is a matter of fact borne from the record that though the Notice u/s 143(2), dated 29.07.2016, Page 1 of APB was issued by the ITO- 2(1), Raipur but thereafter the assessment had been framed vide order passed u/s.143(3) of the Act dated 27.12.2017 by the ITO-$(2), Raipur. The 19 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Ld. AR had placed on record a Notification No.1/2014-15 dated 15.11.2014, as per which, the JCIT, Range-2, Bhilai in exercise of the powers conferred upon him under sub-section (1), (2) and (3) of Section 120 of the Act by Pr. Commissioner/Commissioner of Income Tax-2, Raipur, had directed the A.O’s to exercise and perform functions under the Income Tax Act, 1961/Wealth Tax Act, 1957 in respect of respective cases or classes of persons in the territorial areas specified in the notification. Nothing has been brought on record by the Ld. DR which would reveal that any notification vesting jurisdiction over the case of the assessee with the ITO-4(2), Raipur was issued after the notice u/s.143(2), dated 29.07.2016 was issued by the ITO-2(1), Raipur. 15. Apropos the claim raised by the A.O, i.e. ITO-4(1), Raipur in his letter dated 10.05.2024 (supra) that as the jurisdiction over the assessee’s case remained within the same range, therefore, there was no requirement for the Pr. CIT to pass any order of transfer u/s. 127 of the Act, the same is found to be both factually and principally wrong. The case of the assessee had been transferred from ITO-2(1), Raipur to ITO-4(2), Raipur, i.e. from Range 2 to Range 4. Be that as it may, as per the mandate of Section 127 of the Act transfer of any case from one A.O. to any other A.O. would mandatorily require recording of reasons for doing so on the part of the concerned authority, viz. Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. It is further provided in sub-section (1) of Section 127 of the Act that wherever it is possible to do so the appropriate authority shall afford a reasonable opportunity of being heard in the matter to the assessee. Although sub-section (3) of Section 127 of the Act dispenses with the requirement of affording a reasonable opportunity of being beard to the assessee in a case where the transfer of the case is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place, but it does not dispenses with the statutory requirement of recording of the reasons for doing so by the concerned authority. As such, in the case before me, where jurisdiction over the case of the assessee had been transferred to ITO-4(2), Raipur from ITO-2(1), Raipur, i.e. within the same city, though no requirement of affording a reasonable opportunity of being heard to the assessee was required, but the pre-condition contemplated under sub-section (1) of Section 127 of the Act, i.e., recording of reasons for doing so by the appropriate authority could not have been done away with. 16. My aforesaid view that as per the mandate of law, a transfer order is statutorily required to be passed by the prescribed authority u/s.127 of the Act, and an A.O cannot on his own transfer an income tax file to another officer in the absence of the aforesaid order is squarely covered by the judgment of the Hon'ble High Court of Calcutta in the case of Kusum 20 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Goyal Vs. ITO and Ors. (2010) 329 ITR 283 (Cal). For the sake of clarity, the observations of the Hon'ble High Court are culled out as under: \"The question which falls for consideration is whether under section 127 of the Act an Assessing Officer on his own can transfer an income tax file to another officer and whether an order is required to be passed. In order to appreciate the issue it is necessary to refer to the relevant provisions in section 127 of the Act which is as under : “127.(1) The Director General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General or Chief Commissioner or Commissioner - (a) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) Where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place.” (Emphasis supplied ) 21 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 From a reading of the language of section 127(3) it is evident that when a file is transferred from one assessing officer to another whose offices are located in the same city, locality or place, though other statutory formalities are required to be complied with, the opportunity of hearing as postulated in section 127 (1) and (2) in case of inter city transfer, is not required. Now keeping the position of law in mind let the letter/notice dated 21st October, 2009 issued by the respondent no.2 be examined. In order to appreciate the issue it is necessary to refer to the relevant portion of the impugned intimation issued by the respondent no.2 which is as under: “Since your income has exceeded minimum threshold limit of Rs.10 lac for the assessment year 2007-2008, the jurisdiction to/of your case automatically gets vested with the Jurisdictional DCIT-Circle-54, Kolkata as per above Directives. You are kindly informed hereby that no order u/s 127 of the Income Tax Act 1961 by the Ld. Commissioner of Income Tax – XIX, WB is required to be passed for getting the assessment records transferred from ITO Ward-54(2), Kolkata to DCIT Circle-54, Kolkata by virtue of the provisions of sub-section 3 of section 127 of the Income Tax Act, 1961. For your ready reference the provisions of the said section is appended below. Section 127 sub-section (3) of the Income Tax Act, 1961 states/reads as: …… From the foregoing provisions it is clear that the Commissioner of Income Tax is not required to pass any order transferring the case from/to any Assessing Officer(s) if “the offices of all such officers are situated in the same city, locality or place.” (Emphasis supplied). It is evident that the respondent no.2 had sought to justify his action by stating that the jurisdiction automatically gets vested with the jurisdictional officer and no order under section 127 is required to be passed. In my view, the letter/notice dated 21st October, 2009 is patently illegal since it has been held in this judgement that in case of transfer within the same city, locality or place although the opportunity of hearing as postulated in section 127(1) and (2) has been dispensed with, other statutory formalities which includes issuing an order are required to be complied with. Similarly transfer of files for the assessment years 2007-2008, 2008-2009 and the earlier years as intimated in the letter/notice dated 30th July, 2009 issued by the respondent no.1 is also bad in law. The argument of 22 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 the respondents that in case of intra city transfer no order is required to be passed, cannot be accepted in view of the settled position of law in Kashiram Aggarwalla (supra) and in S.L.Singhania (supra) wherein the validity of the orders were under challenge, meaning thereby an order recording transfer has to be on the records. The judgement in Subhas Chandra Bhaniramka (supra) where it has been held that in case of transfer of file under section 158BD resort has to be made to section 127 also applies in the instant case. The judgement in M.A.E.K.K. Verma (supra) relied on by the Revenue is not applicable as it dealt with the question whether in case of intra city transfer notice is required to be served and whether separate orders of transfer are required under Wealth Tax Act, 1957 and Gift Tax Act, 1956. Therefore, since it has been held in this judgement that it is imperative on part of the respondents to issue order under section 127(3), the letters/notices under challenge are set aside and quashed. The writ petition is allowed. Consequential proceedings are also set aside and quashed. Accordingly, the notice dated 6th January, 2010 regarding the penalty proceedings under section 271(1)(c) for the assessment year 2006-07 is also set aside and quashed. The application being G.A.No. 81 of 2010 is also allowed. No order as to costs\" (emphasis supplied by me) 17. Also, a similar issue had been dealt with by the ITAT, Raipur in the case of Roop Das Vs. ITO, Ward-2(1), Bhilai, ITA Nos.310 & 311/RPR/2023 dated 09.04.2024 wherein, the Tribunal after relying on the judgments of the Hon'ble Supreme Court in the case of Ajanta Industries Vs. Central Board of Direct Tax supra) and that of the Hon'ble High Court of Calcutta in the case of Kusum Goyal Vs. ITO & Ors. (supra) had decided the issue in favor of the assessee, observing that a transfer order is statutorily required to be passed by the prescribed authority u/s.127 of the Act, and an A.O cannot on his own transfer an income tax file to another officer in absence of the aforesaid order u/s.127 of the Act. For the sake of clarity, the observations of the Tribunal are culled out as under: \"11. Apropos the claim raised by the A.O, i.e. ITO-2(1), Bhilai in her letter dated 14.03.2024 (supra) that as the jurisdiction over the assessee’s case remained within the same range, therefore, there was no requirement for the Pr. CIT to pass any order of transfer u/s. 127 of the Act, the same is found to be both factually and principally wrong. The case of the assessee had been transferred from ITO-1(4), Bhilai to ITO-2(1), Bhilai, i.e from Range 1 to Range 2. Be that as it may, as per the mandate of Section 127 of the Act transfer of any case from one A.O to any other A.O would mandatorily require recording of reasons for doing so on the part of the 23 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 concerned authority, viz. Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. It is further provided in sub-section (1) of Section 127 of the Act that wherever it is possible to do so the appropriate authority shall afford a reasonable opportunity of being heard in the matter to the assessee. Although sub-section (3) of Section 127 of the Act dispenses with the requirement of affording a reasonable opportunity of being beard to the assessee in a case where the transfer of case is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place, but it does not dispenses with the statutory requirement of recording of the reasons for doing so by the concerned authority. As such, in the case before me, where jurisdiction over the case of the assessee had been transferred to ITO-2(1), Bhilai from ITO-1(4), Bhilai, i.e. within the same city, though no requirement of affording a reasonable opportunity of being heard to the assessee was required, but the pre-condition contemplated under sub section (1) of Section 127 of the Act, i.e., recording of reasons for doing so by the appropriate authority could not have been done away with. 12. My aforesaid view that the requirement of recording reasons u/s.127(1) of the Act for transferring of a case from one A.O to another is mandatorily required, is supported by the judgment of the Hon'ble Supreme Court in the case of Ajanta Industries Vs. Central Board of Direct Tax (1976) 102 ITR 281 (SC). It was, inter alia, observed by the Hon'ble Apex Court that requirement of recording reasons u/s. 127(1) of the Act is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the files although not communicated to the assessee. It was further observed that recording of reasons and disclosure thereof is not a mere idle formality. The Hon'ble Apex Court observed that now when law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. For the sake of clarity, the relevant observations of the Hon'ble Apex Court are culled out as under: \"We are clearly of opinion that the requirement of recording reasons under section 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee.\" (emphasis supplied by me) 24 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 13. Also, my aforesaid view that as per the mandate of law, a transfer order is statutorily required to be passed by the prescribed authority u/s. 127 of the Act, and an A.O cannot on his own transfer an income tax file to another officer in absence of the aforesaid order is squarely covered by the judgment of the Hon'ble High Court of Calcutta in the case of Kusum Goyal Vs. ITO and Ors, (2010) 329 ITR 283 (Cal.). For the sake of clarity, the relevant observations of the Hon'ble High Court are culled out as under: \"The question which falls for consideration is whether under section 127 of the Act an Assessing Officer on his own can transfer an income tax file to another officer and whether an order is required to be passed. In order to appreciate the issue it is necessary to refer to the relevant provisions in section 127 of the Act which is as under : “127.(1) The Director General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General or Chief Commissioner or Commissioner - (a) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order; (b) Where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without 25 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place.” (Emphasis supplied ) From a reading of the language of section 127(3) it is evident that when a file is transferred from one assessing officer to another whose offices are located in the same city, locality or place, though other statutory formalities are required to be complied with, the opportunity of hearing as postulated in section 127 (1) and (2) in case of inter city transfer, is not required. Now keeping the position of law in mind let the letter/notice dated 21st October, 2009 issued by the respondent no.2 be examined. In order to appreciate the issue it is necessary to refer to the relevant portion of the impugned intimation issued by the respondent no.2 which is as under: “Since your income has exceeded minimum threshold limit of Rs.10 lac for the assessment year 2007-2008, the jurisdiction to/of your case automatically gets vested with the Jurisdictional DCIT-Circle-54, Kolkata as per above Directives. You are kindly informed hereby that no order u/s 127 of the Income Tax Act 1961 by the Ld. Commissioner of Income Tax – XIX, WB is required to be passed for getting the assessment records transferred from ITO Ward-54(2), Kolkata to DCIT Circle-54, Kolkata by virtue of the provisions of sub-section 3 of section 127 of the Income Tax Act, 1961. For your ready reference the provisions of the said section is appended below. Section 127 sub-section (3) of the Income Tax Act, 1961 states/reads as: …… From the foregoing provisions it is clear that the Commissioner of Income Tax is not required to pass any order transferring the case from/to any Assessing Officer(s) if “the offices of all such officers are situated in the same city, locality or place.” (Emphasis supplied). It is evident that the respondent no.2 had sought to justify his action by stating that the jurisdiction automatically gets vested with the jurisdictional officer and no order under section 127 is required to be passed. In my view, the letter/notice dated 21st October, 2009 is patently illegal since it has been held in this judgement that in case of transfer within the same city, locality or place although the opportunity of hearing as postulated in section 127(1) and 26 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 (2) has been dispensed with, other statutory formalities which includes issuing an order are required to be complied with. Similarly transfer of files for the assessment years 2007-2008, 2008-2009 and the earlier years as intimated in the letter/notice dated 30th July, 2009 issued by the respondent no.1 is also bad in law. The argument of the respondents that in case of intra city transfer no order is required to be passed, cannot be accepted in view of the settled position of law in Kashiram Aggarwalla (supra) and in S.L.Singhania (supra) wherein the validity of the orders were under challenge, meaning thereby an order recording transfer has to be on the records. The judgement in Subhas Chandra Bhaniramka (supra) where it has been held that in case of transfer of file under section 158BD resort has to be made to section 127 also applies in the instant case. The judgement in M.A.E.K.K. Verma (supra) relied on by the Revenue is not applicable as it dealt with the question whether in case of intra city transfer notice is required to be served and whether separate orders of transfer are required under Wealth Tax Act, 1957 and Gift Tax Act, 1956. Therefore, since it has been held in this judgement that it is imperative on part of the respondents to issue order under section 127(3), the letters/notices under challenge are set aside and quashed. The writ petition is allowed. Consequential proceedings are also set aside and quashed. Accordingly, the notice dated 6th January, 2010 regarding the penalty proceedings under section 271(1)(c) for the assessment year 2006-07 is also set aside and quashed. The application being G.A.No. 81 of 2010 is also allowed. No order as to costs\" (emphasis supplied by me) 14. As in the case before me no order of transfer u/s. 127(1) of the Act had been shown to have been passed, and in fact, the case of the assessee had been transferred simplicitor on the basis of a letter dated 11.04.2018 addressed by ITO-1(4), Bhilai to ITO-2(1), Bhilai; therefore, it is a clear case of invalid assumption of jurisdiction on the part of the ITO- 2(1), Bhilai who in absence of any valid assumption of jurisdiction had framed the assessment vide his order u/s.147 r.w.s. 144 of the Act, dated 30.11.2018. I, thus, in terms of my aforesaid observations quash the assessment framed by the ITO-2(1), Bhilai u/s.147 r.w.s. 144 of the Act dated 30.11.2018 for want of valid assumption of jurisdiction on his part. 15. As I have quashed the assessment framed by the A.O u/s. 147 r.w.s. 144 of the Act dated 30.11.2018 for want of valid assumption of jurisdiction, therefore, I refrain from adverting to and dealing with the grounds of appeal raised by the assessee, based on which, the additions made by the A.O has been assailed before me, which, thus, are left open.\" 27 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 18. Also, I find that ITAT, Kolkata in the case of D. Craft Entertainment P. Ltd. Vs. ITO, ITA No.1461/Kol/2017 dated 12.10.2018 after relying on the judgment of the Hon'ble High Court of Calcutta in the case of Kusum Goyal Vs. ITO & Ors (supra) had adjudicated the aforesaid issue in favor of the assessee. For the sake of clarity, the observations of the Tribunal are culled out as under: \"6. We find that no notice u/s.143(2) was issued by ITO, Wd-6(1), Kolkata before completing the assessment. We note that ITO, Wd-34(2), Kolkata did not enjoy the jurisdiction over the assessee company by virtue of both the earlier Notification No.228/2001 dated 31.07.2001(CBDT) as well as the latest Notification No.50/2014 dated 22.10.2014 of CBDT as discussed above. Therefore, the assessment completed by ITO, Wd- 6(1), Kolkata on the strength of the notice issued u/s. 143(2) of the Act by ITO, Wd- 34(2), Kolkata (who did not enjoy jurisdiction) is non-est in law and, therefore, is bad in law and consequently null in the eyes of law. Moreover, we also take note that Pr. CIT/CIT-12, Kolkata under whom ITO, Ward- 34(2), Kolkata functioned has not issued any order of transfer of the jurisdiction as contemplated u/s. 127 of the Act to ITO, Wd-6(1), Kolkata. The Hon'ble jurisdictional High Court in Kusum Goyal (2010) 329 ITR 283 (Cal) has clearly spelt out that the ITO on its own cannot transfer the jurisdiction without order from the competent authority. In this case, we note that there is no mention in the assessment order of any transfer order passed by the concerned CIT-12, therefore, the contention of the ITO, Ward-6(1), Kolkata that the jurisdiction has been transferred from ITO, Wd- 34(2) to ITO, Wd-6(1), Kolkata is also without authority and vitiates the transfer of jurisdiction as claimed by the AO in the assessment order and thus this fact also vitiates the assessment order. In the light of the above as well as the contention of the assessee that no opportunity of hearing was rendered to it by ITO, Wd-6(1), Kolkata before framing assessment u/s. 144 of the Act which omission on the part of AO also is against principles of natural justice and the impugned assessment u/s 144 of the Act is fragile for non-adherence of principles of natural justice on the part of AO. Therefore, looking from any angle as discussed above and especially taking note that the impugned assessment order passed by the ITO, Wd-6(1), Kolkata without issuing notice u/s. 143(2) of the Act is corum non-judice and therefore null in the eyes of law and, therefore, need to be quashed and we quash the impugned assessment order dated 13.03.2015 passed by ITO, Wd-6(1), Kolkata. The additional grounds raised by the assessee are allowed.\" 19. As in the case before me no order of transfer u/s.127(1) of the Act had been shown to have been passed, therefore, it is a clear case of invalid assumption of jurisdiction by the ITO-4(2), Raipur who in absence of any valid assumption of jurisdiction had framed the assessment vide his order u/s.143(3) of the Act, dated 27.12.2017. As the facts and issues involved in the present appeal remain the same as were involved in the aforesaid cases, therefore, following the same parity of reasoning, I quash 28 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 the assessment framed by the ITO-4(2), Raipur u/s.143(3) of the Act dated 27.12.2017 for want of valid assumption of jurisdiction on his part. 20. As I have quashed the assessment framed by the A.O, i.e ITO- 4(2), Raipur u/s. 143(3) of the Act dated 27.12.2017 for want of valid assumption of jurisdiction, therefore, I refrain from adverting to and dealing with the grounds of appeal raised by the assessee, based on which, the additions made by the A.O have been assailed before me, which, thus, are left open. 21. In the result, appeal of the assessee is allowed in terms of the aforesaid observations.” 15. Apropos the observation of the CIT(Appeals) that as the assessee had failed to object to the validity of the jurisdiction that was assumed by the A.O. i.e. ITO-1(1), Raipur for framing the assessment within the stipulated time period contemplated u/s. 124(3) of the Act, therefore, he could not have assailed the same in the course of proceeding before him, I am unable to persuade myself to subscribe to the said observation. I find that the aforesaid issue regarding the inherent lack of jurisdiction, though not raised in the course of proceedings before the lower authorities, can be raised in any appellate state of proceedings, is supported by the judgment of the Hon’ble Apex Court in the case of Kanwar Singh Saini Vs. High Court of Delhi, 2012 (4) SCC 307. After relying on the aforesaid judgment of the Hon’ble Apex Court and a host of other judicial pronouncements, the “Division Bench” of the Tribunal, Raipur in the case of Jindal Power Limited 29 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Vs. Jt. CIT, Range-1, Bilaspur, ITA Nos. 201 & 202/RPR/2017, dated 25.06.2024 on the aforesaid issue had held as under: “27. We shall now deal with the contention of the Ld. DR that as the assessee company had not called in question the jurisdiction of the Jt. CIT, Range-1, Bilaspur within the specified time period contemplated under sub section (3) of Section 124 of the Act, i.e. within a period of one month from the date on which it was served with the notice u/s. 143(2) of the Act, therefore, it was divested of its right from assailing the same for the first time before the Tribunal. 28. Before proceeding any further, it would be relevant to cull out Section 124(3) of the Act which reads as under: \"124 (1) xxxxxxx (2) xxxxxxx (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer— (a) where he has made a return under sub-section (1) of section 115WD or under sub-section (1) of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or sub-section (2) of section 115WE or sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144 to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier; (c) where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section 153C or after the completion of the assessment, whichever is earlier. 29. Having given a thoughtful consideration to the aforesaid claim of the ld. DR we are unable to persuade ourselves to subscribe to the same. On a careful perusal of 30 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Section 124 of the Act, it transpires that the same deals with the issue of “territorial jurisdiction” of an Assessing Officer. Ostensibly, sub-section (1) of Section 124 contemplates vesting with the A.O jurisdiction over a specified area by virtue of any direction or order issued under sub-section (1) and sub-section (2) of Section 120 of the Act. On the other hand sub-section (2) of Section 124 contemplates the manner in which any controversy as regards the territorial jurisdiction of an A.O is to be resolved. Apropos, sub-section (3) of Section 124 of the Act, the same places an embargo upon an assessee to call in question the jurisdiction of the A.O where he had initially not raised such objection within a period of one month from the date on which he was served with a notice under sub-section (1) of Section 142 or sub-section (2) of Section 143. In sum and substance, the obligation cast upon an assessee to call in question the jurisdiction of the A.O as per the mandate of sub-section (3) of Section 124 is confined to a case where the assessee objects to the assumption of territorial jurisdiction by the A.O, and not otherwise. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Bombay in the case of Peter Vaz Vs. CIT, Tax Appeal Nos. 19 to 30 of 2017, dated 05.04.2021 and that of the Hon’ble High Court of Gujarat in the case of CIT Vs. Ramesh D Patel (2014) 362 ITR492 (Guj.). In the aforesaid cases the Hon’ble High Courts have held that as Section 124 of the Act pertains to territorial jurisdiction vested with an AO under sub-section (1) or sub-section (2) of Section 120, therefore, the provisions of sub-section (3) of Section 124 which places an embargo on an assessee to raise an objection as regards the validity of the jurisdiction of an A.O would get triggered only in a case where the dispute of the assessee is with respect to the territorial jurisdiction and would have no relevance in so far his inherent jurisdiction for framing the assessment is concerned. Also, support is drawn from a recent judgment of the Hon’ble High Court of Calcutta in the case of Principal Commissioner of Income-tax Vs. Nopany & Sons (2022) 136 taxmann.com 414 (Cal). In the case before the Hon’ble High Court the case of the assessee was transferred from ITO, Ward-3 to ITO, Ward-4 and the impugned order was passed by the ITO, Ward-4 without issuing notice u/s 143(2), i.e. only in pursuance to the notice that was issued by the ITO, Ward-3, who had no jurisdiction over the assessee at the relevant time. The Hon'ble High Court considering the fact that as the assessment was framed on the basis of the notice issued under Sec. 143(2) by the assessing officer who had no jurisdiction to issue the same at the relevant point of time quashed the assessment. Apart from 31 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 that, the aforesaid view is also supported by the order of the ITAT, Kolkata ‘B’ Bench in the case of OSL Developers (p) Ltd. Vs. ITO, (2021) 211 TTJ (Kol) 621 and that of ITAT, Gauhati Bench in the case of Balaji Enterprise Vs. ACIT (2021) 187 ITD 111 (Gau.). Accordingly, on the basis of our aforesaid observations, we are of the view that as the assessee’s objection to the validity of the jurisdiction assumed by the Jt. CIT, Range-1, Bilaspur is not an objection to his territorial jurisdiction, but in fact an objection to the assumption of inherent jurisdiction by him in absence of an order u/s.120(4)(b) of the Act, therefore, the provisions of sub- section (3) of Section 124 would not assist the case of the revenue. 30. In fact, we find that the Hon'ble High Court of Bombay in the case of Bansilal B. Raisoni & Sons Vs. ACIT, Central Circle-1, Nashik & Anr, WP No.13391 of 2018 had, inter alia observed that the time limit for raising objection to the jurisdiction of the Assessing Officer prescribed under sub section (3) of Section 124 has a relation to the Assessing Officer's territorial jurisdiction. It was further observed that the time limit prescribed would not apply to a case where the assessee contends that the action of the Assessing Officer is without authority of law and, therefore, wholly without jurisdiction. Also, we find that the Hon'ble High Court of Bombay in the case of CIT-1, Nagpur Vs. Lalitkumar Bardia, (2017) 84 taxmann.com 213 (Bom) had addressed the contention of the department that where the assessee had not objected to the jurisdiction within the time prescribed under sub-section (3) of Section 124 of the Act, then, having waived its said right, it was barred from raising the issue of jurisdiction after having participated in the assessment proceedings. The Hon'ble High Court had observed that the waiver can only be of one's right/privilege but non-exercise of the same will not bestow jurisdiction on a person who inherently lacks jurisdiction. Therefore, the principle of waiver cannot be invoked so as to confer jurisdiction on an Officer who is acting under the Act when he does not have jurisdiction. The Hon'ble High Court while concluding as hereinabove had relied on the judgment of the Hon'ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi, 2012 (4) SCC 307. The Hon'ble Apex Court in its aforesaid judgment had held that it is the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court. The Hon'ble Apex Court further observed that if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as 32 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 the matter goes to the roots of the cause. Also, the Hon'ble Apex Court clarified that an issue can be raised at any belated stage of the proceedings including in appeal or execution. Elaborating further, it was observed by the Hon'ble Apex Court that the finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. It was further observed by the Hon'ble Apex Court that acquiescence of a party equally should not be permitted to defeat the legislative animation and the court cannot derive jurisdiction apart from the statute. For the sake of clarity, the observations of the Hon'ble Apex Court in the case of Kanwar Singh Saini Vs. High Court of Delhi (supra) are culled out as under: \"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. (Vide United Commercial Bank Ltd v. Workmen, Nai Bahu v. Lala Ramnarayan, Natraj Studios (P) Ltd. v. Navrang Studios, Sardar Hasan Siddiqui v. STAT, A.R. Antulay v. R.S. Nayak, Union of India v. Deoki Nandan Aggarwal, Karnal Improvement Trust v. Parkash Wanti, U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., State of Gujarat v. Rajesh Kumar Chimanlal Barot, Kesar Singh v. Sadhu, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and CCE v. Flock (India) (P) Ltd.)\" 31. We, thus, are of the view that as the Jt. CIT, Range-1, Bilaspur in absence of any order passed by the specified authority u/s. 120(4)(b) of the Act had no jurisdiction to frame the assessment in the case of the assessee company before us, therefore, the calling into question of the same by the assessee company before us would not be hit by the prescribed time limit contemplated in Section 124(3) of the Act, which as observed by us hereinabove, is in context of the territorial jurisdiction of the A.O. Apart from that, as held by the Hon'ble Supreme Court in the case of Kanwar Singh Saini Vs. High Court of Delhi (supra), as the Jt. CIT, Range-1, 33 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 Bilaspur in absence of any order in writing u/s. 120(4)(b) of the Act had wrongly assumed jurisdiction and framed the assessment vide his impugned order u/s. 143(3) of the Act dated 01.03.2013, therefore, the assessee company remained well within its right to challenge the absence of his inherent jurisdiction to frame the impugned assessment in the course of the proceedings before us. 32. We, thus, in terms of our aforesaid observations, quash the order passed by the Jt. CIT, Range-1, Bilaspur u/s. 143(3) of the Act dated 01.03.2013 for want of valid assumption of jurisdiction on his part.” 16. Accordingly, I am unable to concur with the view taken by the CIT(Appeals), who had approved the observation of the A.O in the “remand report” dated 15.07.2024/26.07.2024, that as the assessee had failed to object to the assumption of jurisdiction by the ITO-1(1), Raipur in the course of assessment proceedings, therefore, he was precluded from objecting to the absence of a transfer order u/s.127 of the Act in the course of the proceedings before the appellate authority. 17. Apropos the CIT(Appeals) observation that the assessee had not raised objection as regards the order of transfer u/s.127 of the Act which was required to have been made as per the mandate of Section 292BB of the Act, I am unable to comprehend the said observation of the CIT(Appeals). Before proceeding any further, I deem it fit to cull out the provisions of Section 292BB of the Act, which reads as under: “292BB. Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, 34 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was— (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.\". As per Section 292BB of the Act, as the scope of applicability of Section 292BB of the Act is circumscribed by instances where the assessee had not raised any objection qua the service of notice upon him, therefore, I fail to understand as to how the reference of the said statutory provision would come to the rescue to the department. My aforesaid view is supported by the judgment of the Hon’ble Apex Court in the case of CIT Vs. Laxman Das Khandelwal (2019) 417 ITR 325 (SC), wherein the Hon’ble Apex Court had held as under: “6. The question, however, remains whether Section 292BB which came into effect on and from 01.04.2008 has effected any change. Said Section 292BB is to the following effect:- “292BB. Notice deemed to be valid in certain circumstances. – Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was – 35 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 (a) Not served upon him; or (b) Not served upon him in time; or (c) Served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.” 7. A closer look at Section 292BB shows that if the assessee has participated in the proceedings it shall be deemed that any notice which is required to be served upon was duly served and the assessee would be precluded from taking any objections that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. According to Mr. Mahabir Singh, learned Senior Advocate, since the Respondent had participated in the proceedings, the provisions of Section 292BB would be a complete answer. On the other hand, Mr. Ankit Vijaywargia, learned Advocate, appearing for the Respondent submitted that the notice under Section 143(2) of the Act was never issued which was evident from the orders passed on record as well as the stand taken by the Appellant in the memo of appeal. It was further submitted that issuance of notice under Section 143(2) of the Act being prerequisite, in the absence of such notice, the entire proceedings would be invalid. 8. The law on the point as regards applicability of the requirement of notice under Section 143(2) of the Act is quite clear from the decision in Blue Moon’s case2. The issue that however needs to be considered is the impact of Section 292BB of the Act. 9. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. 36 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 10. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, the findings rendered by the High Court and the Tribunal and the conclusion arrived at were correct. We, therefore, see no reason to take a different view in the matter. 11. These Appeals are, therefore, dismissed. No costs.” (emphasis supplied by me) 18. Be that as it may, I am unable to concur with the observations of the CIT(Appeals), who had rejected the assessee’s claim that the ITO-1(1), Raipur had wrongly assumed jurisdiction and framed the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 29.12.2018 in absence of any order of transfer u/s. 127 of the Act. At the same time, I cannot remain oblivion of the fact that the absence of order u/s. 127 of the Act is neither discernible from the orders of the lower authorities nor anything has been placed on record before me which would conclusively establish the same. Accordingly, I am of the view that the matter in all fairness requires to be restored to the file of the ADDL/JCIT(A), Faridabad with a direction to call for the assessment records and after verify the claim of the assessee that no order of transfer u/s. 127 of the Act had been passed in the present case. In case, there is no order of transfer u/s.127 of the Act transferring the jurisdiction over the case of the assessee from ITO-1(4), Raipur i.e. the A.O who had issued notice u/s. 148 of the Act, dated 27.03.2018 to the A.O. i.e. ITO-1(1), Raipur who had framed the assessment u/s. 147 r.w.s. 143(3) of the Act, dated 37 Shri Kalikanta Debnath Vs. ITO, Ward-1(1), Raipur ITA No. 487/RPR/2024 29.12.2018, then the assessment framed in the case of the assessee would stand quashed for want of valid assumption of jurisdiction. Needless to say, the CIT(Appeals) in the course of the set aside proceedings shall afford a reasonable opportunity of being heard to the assessee who shall remain at liberty to substantiate his claim on the basis of fresh documentary evidence, if any. 19. In the result, appeal of the assessee is allowed for statistical purposes in terms of the aforesaid observations. Order pronounced in open court on 09th day of December, 2024. Sd/- (रवीश सूद /RAVISH SOOD) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर/ RAIPUR ; Ǒदनांक / Dated : 09th December, 2024. ***SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "