Asstt. Commissioner of Income Tax, Kanpur V. Shri Dinesh Chand Jain, New Delhi

MA 28/LKW/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2420 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-07-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Competent authority; Assessment record
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER M.A. NO S . 28 & 29/LKW/2012 [ARISING OUT OF ITA NO S.123 & 280/LKW/2012 ] ASSESSMENT YEAR S : 2006 - 07 & 2007 - 08 ACIT CENTRAL CIRCLE - I KANPUR V. SHRI. DINESH CHAND JAIN 201, SURYA KIRAN BUILDING 19, K.G. MARG NEW DELHI PAN: ADBPJ2732Q (APP LIC ANT) (RESPONDENT) M.A. NOS.30 & 31/LKW/2012 [ARISING OUT OF ITA NO S.742 & 743/LKW/2011] ASSESSMENT YEAR S : 2006 - 07 & 2007 - 08 ACIT CENTRAL CIRCLE - I KANPUR V. SMT. LATA JAIN 201, SURYA KIRAN BUILDING 19, K.G. MARG NEW DELHI PAN: AANPJ5648L (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. ALOK MITRA, D.R. RESPONDENT BY: SHRI. SWARAN SINGH, C.A. DATE OF H EARING: 25 0 7 2014 DATE OF PRONOUNCEMENT: 21 0 8 2014 O R D E R PER SUNIL KUMAR YADAV: THESE MISCELLANEOUS APPLICATIONS ARE PREFERRED BY THE REVENUE AGAINST THE RESPECTIVE ORDER OF THE TRIBUNAL, WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT ADJUDICATE D THE ISSUE OF JURISDICTION OF THE TRIBUNAL FOR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : ADJUDICATING THE APPEALS IN THE LIGHT OF THE RELEVANT PROVISIONS OF THE ACT. THE LD. D.R. HAS CONTENDED THAT THE JURISDICTION OVER THE CASE OF THE ASSESSEE WAS CONSEQUENTLY TRANSFERRED TO THE ACIT, CENTRAL C IRCLE, KANPUR BY THE COMPETENT AUTHORITY UNDER SECTION 127 OF THE INCOME - TAX ACT, 1961 VIDE ORDER DATED 12.8.2011 AND WAS EFFECTIVE FROM 23.8.2011. ACCORDINGLY THE ACIT, CENTRAL CIRCLE I, KANPUR WAS AUTHORIZED TO FILE APPEAL BEFORE THE ITAT, AND THE SAM E WAS FILED IN TIME, WHEREAS THE TRIBUNAL HAS HELD THAT THE APPEAL S CAN ONLY BE FILED IN DELHI BENCHES , AS THE ASSESSMENT WAS FRAMED BY THE ACIT, CENTRAL CIRCLE - II. THE LD. D.R. HAS FURTHER CONTENDED THAT THE TRIBUNAL HAS NOT APPRECIATED THE RELEVANT PART OF THE NOTIFICATION INDICATING THE JURISDICTION OF VARIOUS BENCHES OF THE TRIBUNAL AS REPRODUCED IN THE STANDING ORDER, ACCORDING TO WHICH ALL THE APPEALS AND APPLICATIONS FROM THE DISTRICTS, STATES AND UNION TERRITORIES SPECIFIED IN COLUMN 3 SHALL BE, W. E.F. 1.10.1997 HEARD AND DETERMINED BY THE BENCHES SPECIFIED IN COLUMN 2 OF THE TABLE. THEREFORE, AN ERROR IS CREPT IN THE ORDER OF THE TRIBUNAL, WHICH CALLS FOR RECTIFICATION. 2 . THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE TRIBUNAL HAS EXAMINED THE RELEVANT RULES AND NOTIFICATION WHILE ADJUDICATING THE ISSUE OF JURISDICTION OF THE TRIBUNAL AND THE TRIBUNAL HAS GIVEN A SPECIFIC FINDING IN ITS ORDER THAT THIS BENCH OF THE TRIBUNAL DOES NOT HAVE JURISDICTION TO HEAR THE APPEAL OF THE ASSESSEE , AS THE ASSESSING OFFICER WHO PASSED THE ORDER FALLS WITH IN THE JURISDICTION OF THE DELHI TRIBUNAL. THEREFORE, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT WHILE GIVIN G A CATEGORICAL FINDING IN THIS REGARD, THE TRIBUNAL HAS EXAMINED ALL NECESSARY ASPECTS. TH EREFORE, THE VIEW TAKEN BY THE T RIBUNAL CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION. 3 . WE HAVE CAREFULLY EXAMINED THE MISCELLANEOUS APPLICATIONS VIS - - VIS THE ORDERS OF THE TRIBUNAL IN THE LIGHT OF THE RIVAL SUBMISSIONS AND WE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : FIND THAT THE SOLE ISSUE BEFORE THE TRIBUNAL WITH REGARD TO THE JURISDICTION OF THE TRIBUNAL OVER THE APPEALS AND THE TRIBUNAL HAS ADJUDICATED THE ISSUE OF JURISDICTION IN THE LIGHT OF THE TRIBUNAL RULES AND THE STANDING ORDERS, ETC AND THE JUDICIAL PRONOUNCEMENTS ON THIS ASPECT AND THEREAFTER THE TRIBUNAL HAS CONCLUDED THAT THIS BENCH OF THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THESE APPEALS. IN I.T.A. NOS. 123 & 280/LKW/201, THE TRIB UNAL HAS FOLLOWED ITS EARLIER ORDER PASSED ON THIS ISSUE IN I.T.A. NOS.742 & 743/LKW/2011, IN WHICH THE TRIBUNAL HAS EXAMINED THE ISSUE OF JURISDICTION IN DETAIL. FOR THE SAKE OF REFERENCE, WE EXTRACT THE FINDING OF THE T RIBUNAL IN THIS REGARD AS UNDER: - 5. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE RECORD, WE FIND THAT UNDISPUTEDLY THE ASSESSMENTS IN BOTH THE ASSESSMENT YEARS WERE FRAMED BY THE ASSESSING OFFICER OF NEW DELHI I.E. ACIT, CENTRAL CIRCLE - 2, NEW DELHI VIDE HIS ORDERS DATED 28.12.2010. THEREAFTER APPEALS AGAINST THE SAID ORDERS WERE FILED BEFORE THE LD. CIT(A) - III, LAXMI NAGAR, DELHI ON 31.1.2011. THE JURISDICTION OF THE ASSESSING OFFICER OVER THE ASSESSEE WAS TRANSFERRED BY THE LD. COMMISSIONER OF INCOME - TAX VIDE HI S ORDER DATED 12.8.2011 W.E.F. 23.8.2011 UNDER SECTION 127(2) OF THE ACT FROM DELHI TO KANPUR. IF THE CONTENTION OF THE REVENUE IS ACCEPTED THAT W.E.F. 23.8.2011 THE JURISDICTION OF THE ASSESSING OFFICER OVER THE ASSESSEE IS TRANSFERRED FROM DELHI TO KANP UR FOR THE PURPOSE OF FILING OF APPEALS AGAINST THE ORDERS OF THE ASSESSING OFFICER, THEN THE APPEALS AGAINST THE ASSESSMENT ORDERS SHOULD HAVE BEEN DISPOSED OF BY THE LD. CIT(A), KANPUR AND NOT BY THE LD. CIT(A), DELHI WHO HAS PASSED THE ORDER ON 26.8.201 1 AFTER THE TRANSFER OF JURISDICTION OF THE ASSESSING OFFICER. WE, HOWEVER, CAREFULLY EXAMINED THE STANDING ORDER OF INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963 AND FIND THAT THE JURISDICTION OF DIFFERENT BENCHES OF THE TRIBUNAL DEPENDS UPON THE LOCATION OF THE OFFICE OF THE ASSESSING OFFICER AND NOT ON THE BASIS OF THE PLACE OF BUSINESS OR RESIDENCE OF THE ASSESSEE. FOR THE SAKE OF REFERENCE, WE EXTRACT THE CLAUSE 4 OF THE STANDING ORDERS OF INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963 AS UNDER: - PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : 4. THE ORDINARY JURISDICTION OF THE BENCH WILL BE DETERMINED NOT BY THE PLACE OF BUSINESS OR RESIDENCE OF THE ASSESSEE BUT BY THE LOCATION OF THE OFFICE OF THE ASSESSING OFFICER. 6 . THIS ISSUE WAS ALSO EXAMINED BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. DIGV IJAY CHEMICALS LTD. (SUPRA) WHEREIN IT WAS HELD THAT THE JURISDICTION OF THE HIGH COURT DEPENDS UPON THE LOCATION OF THE OFFICE OF THE ASSESSING OFFICER. THE FACTS OF THE CASE BEFORE THE DELHI HIGH COURT WAS THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASS ESSING OFFICER, BULANDSHAHER AND APPEAL AGAINST THE SAID ORDER WAS PASSED BY THE LD. CIT(A), MEERUT WHO DISMISSED THE SAME. APPEAL AGAINST THE SAID ORDER WAS FILED BEFORE THE TRIBUNAL AT DELHI AND THE TRIBUNAL AT DELHI WAS EXERCISING JURISDICTION EVEN OVE R THE TERRITORIES FALLING IN THE ADJOINING STATE OF UTTAR PRADESH. THE TRIBUNAL EVENTUALLY DECIDED THE APPEAL AND IN THE MEAN TIME THE ASSESSMENT RECORDS OF THE NEXT ASSESSMENT YEAR WAS TRANSFERRED TO DELHI IN TERMS OF SECTION 127 OF THE ACT. AN APPEAL W AS FILED BEFORE THE DELHI HIGH COURT AND THE ISSUE WAS RAISED WHETHER THE DELHI HIGH COURT HAS JURISDICTION TO HEAR THE APPEAL IN THE LIGHT OF THE FACT THAT JURISDICTION OF THE ASSESSING OFFICER OVER THE ASSESSEE HAS BEEN TRANSFERRED FROM BULANDSHAHER TO D ELHI. THEIR LORDSHIPS OF THE DELHI HIGH COURT HAVE HELD THAT TRANSFER OF ASSESSMENT RECORD WOULD NOT ALTER THE COMPETENCY OF THE COMPETENT HIGH COURT IN RELATION TO FILING OF APPEAL IS CONCERNED. BECAUSE THE SITUS OF THE ASSESSING OFFICER AND NOT THE TRI BUNAL IS THE BASIS FOR DETERMINING THE FORUM OF APPEAL. THEREFORE, THE APPEAL AGAINST THE ORDER PASSED BY THE TRIBUNAL EVEN THOUGH LOCATED IN DELHI OUGHT TO BE FILED IN THE HIGH COURT AT ALLAHABAD. 7 . SIMILAR VIEW WAS EXPRESSED BY HON'BLE PUNJAB & HARYANA H IGH COURT IN THE CASE OF CIT V. MOTOROLA INDIA LTD. (SUPRA) IN WHICH THEIR LORDSHIPS HAVE EXAMINED THIS ISSUE IN DETAIL IN THE LIGHT OF NOTE 4 UNDER SUB - RULE (1) OF RULE 4 OF THE INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963 AND THE RELEVANT PROVISIONS OF TH E ACT. THE RELEVANT OBSERVATIONS OF THE HIGH COURT ARE EXTRACTED HEREUNDER: - PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : A CONJOINT READING OF THE AFOREMENTIONED PROVISIONS MAKES IT EVIDENT THAT THE DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER IS EMPOWERED TO TRANSFER ANY CASE FROM ONE O R MORE ASSESSING OFFICERS SUB ORDINATE TO HIM TO ANY OTHER ASSESSING OFFICER. IT ALSO DEALS WITH THE PRO CEDURE WHEN THE CASE IS TRANSFERRED FROM ONE ASSESSING OFFICER SUBORDINATE TO A DIRECTOR GENERAL OR CHIEF COMMISSIONER OR COMMISSIONER TO AN ASSESSING OFFICER WHO IS NOT SUBORDINATE TO THE SAME DIRECTOR GENERAL, CHIEF COMMISSIONER OR COMMISSIONER. THE AFOREMENTIONED SITUATION AND THE DEFINITION OF THE EXPRESSION 'CASE' IN RELATION TO JURISDICTION OF AN ASSESSING OFFICER IS QUITE UNDERSTANDABLE BUT IT HAS GOT NOTHING TO DO WITH THE TERRITORIAL JURISDICTION OF THE TRIBUNAL OR HIGH COURTS MERELY BECAUSE SECTION 127 OF THE ACT DEALING WITH TRANSFER HAS BEEN INCORPORATED IN THE SAME CHAPTER. THEREFORE, THE ARGUMENT RAISED IS COMPLETELY DEVOID OF SUBSTANCE AND WE HAVE NO HESITATION TO REJECT THE SAME. IN VIEW OF THE ABOVE, THE APPEAL IS DISMISSED BY SUSTAINING THE PRELIMINARY OBJECTION THAT THIS COURT HAS NO TERRITORIAL JURISDICTION OVER AN ORDER PASSED BY THE ASSESSING OFFICER AT BANGALORE. ACCORDINGLY, THESE APPEALS ARE RETURNED TO THE REVENUE - APPELLANT FOR THEIR FILING BEFORE THE COMPETENT COURT OF JURISDICTION IN ACCORDANCE WITH LAW. 8 . TURNING TO THE CASES IN HAND, UNDISPUTEDLY THE OFFICE OF THE ASSESSING OFFICER WHO PASSED THE ASSESSMENT ORDERS IS LOCATED I N DELHI, OVER WHICH THE DELHI BENCHES OF THE TRIBUNAL HAS JURISDICTION. THE ORDER UNDER SECTION 127 OF THE ACT WAS PASSED BY THE LD. COMMISSIONER OF INCOME - TAX ON 12.8.2011 W.E.F. 23.8.2011, WHICH WAS PASSED AFTER PASSING THE ASSESSMENT ORDER AND EVEN AFT ER FILING OF THE FIRST APPEAL. THEREFORE, THE DELHI BENCHES OF THE TRIBUNAL HAVE THE JURISDICTION OVER THE ASSESSEE TO HEAR THE APPEALS AND NOT THE LUCKNOW BENCHES OF THE TRIBUNAL. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THESE APPEALS WERE WRONGLY FILED BEFORE THE LUCKNOW BENCHES OF THE TRIBUNAL AND THE LUCKNOW BENCHES HAVE NO PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 6 - : JURISDICTION TO ADJUDICATE THESE APPEALS. THEREFORE, THESE APPEALS ARE DISMISSED BEING NOT ADMITTED. WE, HOWEVER, GIVE LIBERTY TO THE REVENUE TO FILE THESE APPEALS BEFORE TH E DELHI BENCHES OF THE TRIBUNAL IN ACCORDANCE WITH LAW. 4 . SINCE THE TRIBUNAL HAS EXAMINED ALL THE RELEVANT ASPECTS BEFORE COMING TO A CONCLUSION THAT THIS BENCH OF THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THE APPEALS IN I.T.A. NOS. 123 & 280/LKW/201 AN D IN I.T.A. NOS.742 & 743/LKW/2011 AND ACCORDINGLY DISMISSED THE SAME WITH A LIBERTY TO THE REVENUE TO FILE APPEAL S BEFORE THE DELHI BENCHES OF THE TRIBUNAL IN ACCORDANCE WITH LAW. THEREFORE, THE FINDING OF THE TRIBUNAL CANNOT BE REVIEWED UNDER THE GARB O F RECTIFICATION UNDER SECTION 254(2) OF THE ACT, AS THE SCOPE OF SECTION 254(2) IS VERY LIMITED AND ONLY ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL CAN BE RECTIFIED. 5 . SINCE THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE LIGHT OF THE RELEVANT JUDICIAL PRON OUNCEMENTS , NOTIFICATION AND ITAT R ULES, WE FIND NO ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL. THE FINDING OF THE TRIBUNAL CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION. ACCORDING LY , WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATIONS OF THE REVE NUE AND WE DISMISS THE SAME. 6 . IN THE RESULT, MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.8.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST AU GUST , 2014 JJ: 3107 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 7 - : COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )