We Have Heard Mr. Soumen Bhattacharjee, Learned Counsel For Theappellant And Mr. R. Sivaraman, Learned Counsel Appearing For Therespondent/Assessee v. “It May Be Noted That The Order U/S 263 Was Passed On 7.3.2013 Butboth The First Notice And Final Reminder Were Issued On A Single Day I.e.21.02.2014 Whereas Th

OD-36 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE ITAT/106/2024 IA NO: GA/2/2024 PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL –2, CHENNAIVs M/S. OJASVI MOTOR FINANCE PVT. LTD. BEFORE: THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 3[rd] May, 2024. Appearance:Mr. Soumen Bhattacharjee, Adv.…for the appellant Mr. R. Sivaraman, Adv.Ms. Kishwar Rahman, Adv.…for the respondent The Court: This appeal filed by the Revenue under Section 260A of theIncome Tax Act, 1961 (the Act) is directed against an order dated 5[th] February,2020 passed by the Income Tax Appellate Tribunal, “B” Bench, Kolkata inI.T.A. No.400/Kol/2018 for the Assessment Year 2008-09. The Revenue has raised the following substantial questions of law forconsideration:- A.Whether the learned ITAT has committed substantial error in law inholding that the assessment order under Section 147/143(3)/263/144dated 24.03.2014 passed by the Assessing Officer was not – existencein the eye of law, thus deleting the addition of Rs.95.39 crores withoutadjudicating on the facts of the case.holding that the assessment order under Section 147/143(3)/263/144dated 24.03.2014 passed by the Assessing Officer was not – existencein the eye of law, thus deleting the addition of Rs.95.39 crores withoutadjudicating on the facts of the case. B.Whether the learned Tribunal has committed substantial error in law bynot considering that though the order under Section 127 of the IncomeTax Act, was issued on 15.03.2013, the PAN was and records havealso not been transferred from ITO, Ward 1(4), Kolkata to Central Circle2(3), Chennai.not considering that though the order under Section 127 of the IncomeTax Act, was issued on 15.03.2013, the PAN was and records havealso not been transferred from ITO, Ward 1(4), Kolkata to Central Circle2(3), Chennai. We have heard Mr. Soumen Bhattacharjee, learned counsel for theappellant and Mr. R. Sivaraman, learned counsel appearing for therespondent/assessee. The short question which falls for consideration in the instant case waswhether the Assessing Officer had jurisdiction to pass the assessment orderdated 24[th] March, 2014 after the file was transferred to ACIT, Central Circle2(3), Chennai pursuant to an order passed by the Commissioner of Income Taxunder Section 127 of the Act. It is submitted by the learned Senior standing counsel for the Revenuethat despite notices and summons, the assessee did not appear and cooperatein the assessment proceedings and the Assessing Officer has proceeded to takenote of the factual details available and after noting the decision of the Hon’bleSupreme Court in Sumati Dayal vs. CIT, 214 ITR 801(SC) completed theassessment under Section 147, 143(3), 263 and 144 of the Act by an orderdated 24[th] March, 2014. It is submitted that at no point of time, the assesseehad raised the issue relating to jurisdiction before the Assessing Officer. Whenthe assessee carried the matter on appeal before the Commissioner of IncomeTax (Appeals) – 6, Kolkata (CITA), such a ground was not canvassed and for the first time before the learned Tribunal this issue was raised and the Tribunalhas decided the matter in favour of the assessee without adverting to theconduct of the assessee. Therefore, it is submitted that the case of theassessee ought not to have been allowed on this ground. Per contra, the learned advocate appearing for the respondent assesseesubmitted that the only summons or notice received by the assessee from theAssessing Officer is dated 21[st] February, 2014. Further, it is submitted that itis incorrect to contend that the assessee did not raise the jurisdictional pointbefore the appellate authority and the fact remains that the said point wasspecifically canvassed by the assessee before the CIT(A). In this regard, thelearned advocate has drawn the attention of this Court to the grounds raisedbefore the CIT(A). Before the CIT(A), the assessee contended as follows: Per contra, the learned advocate appearing for the respondent assesseesubmitted that the only summons or notice received by the assessee from theAssessing Officer is dated 21[st] February, 2014. Further, it is submitted that itis incorrect to contend that the assessee did not raise the jurisdictional pointbefore the appellate authority and the fact remains that the said point wasspecifically canvassed by the assessee before the CIT(A). In this regard, thelearned advocate has drawn the attention of this Court to the grounds raisedbefore the CIT(A). Before the CIT(A), the assessee contended as follows: “It may be noted that the order u/s 263 was passed on 7.3.2013 butboth the first notice and final reminder were issued on a single day i.e.21.02.2014 whereas the assessment was getting time barred on31.03.2014 fixing date of hearing on 10.03.2014 for both the first notice aswell as final reminder. The notices were addressed and served at the oldoffice of the company at P-41, Princep Street, Kolkata-700072 on07.03.2014 in spite of the fact that the notice of change of address wasfiled with NSDL on 31.12.2012 and also intimated to the AO withevidences on 14.01.2013. Besides, the above notices issued by the AOwere without jurisdiction since on 15.03.2013, the Ld. CIT had passed anorder u/s 127 transferring the jurisdiction of the assessee from ITO Ward-1(4) to ACIT, CC2(3)/Chennai. As such the notice issued and assessmentorder passed by the AO are without jurisdiction. Moreover, the AO withoutwaiting for compliance by the assessee on 10.03.2014 also issuedsummons to all the shareholders on 21.02.2014 itself ignoring the fact that all the share applicants were amalgamated and there was no existence ofthe share applicants as on the date of issue to notices to them. As suchthere was not valid service of notice even to the share applicants also. Itshows that the AO was not serious in granting any opportunity of beingheard. The AO never sought any explanations from the assessee aboutnon-service of the summon to the share applicants (reason being all shareapplicants had amalgamated). The AO even did not consider the paperbooks filed by the assessee evidencing the identity and creditworthiness ofthe share applicants and genuineness of the transaction. Hence theassessment having been completed in post haste and without jurisdictionand therefore the same is bad in law and is liable to be quashed.” Thus, it is seen that the jurisdictional point was raised by the assesseebefore the CIT(A). However, it appears that the CIT(A) did not appreciate thesame in a proper perspective nor considered the effect of the said submission.Before the Tribunal, the assessee has confined their argument only to thejurisdiction point which is evident from paragraph 2 of the impugned order.The learned Tribunal on going through the factual position found that the caseas canvassed by the assessee was established on facts. It is seen that on17.06.2010, the assessment under Section 143(3) was completed. Thereafter,two notices were issued under Section 263 of the Act dated 21.12.2012 and15.12.2013. On 07.05.2013 the CIT had passed the order under Section 263 ofthe Act. By order dated 15.03.2013, the CIT(A) transferred the file to thejurisdiction of the Assessing Officer in Chennai. It is thereafter the assessingauthority had issued notice dated 21.02.2014 and proceeded to complete theassessment on 24.03.2014. Thus, it is evidently clear that on and after the order passed by the CIT transferring the files to the jurisdiction at Chennai byorder dated 15.03.2013, the Assessing Officer here in Kolkata has nojurisdiction to deal with the matter. This aspect has been rightly noted by thelearned Tribunal. The learned Tribunal also took note of the decision of theHon’ble Division Bench of this Court in Ramshila Enterprises Private Limited383 ITR 546. In the said decision, the Court took note of the judgment of theHon’ble Supreme Court in Pandurang and Others vs. State of Maharashtra(1986) 4 SCC 436 for the proposition that even a right order by a wrong forumis a nullity. Reference was also made to the decision of the Division Bench ofthis Court in ITO, ‘A’ Ward, District Howrah and Others vs Ashoke Glass Works(1980) 125 ITR 491 (Cal) wherein it was held that when the jurisdiction isvalidly removed by a competent authority under the provisions of a statute, theoriginal court or any Tribunal or authority in such event will be incompetent,as having ceased to have jurisdiction, to proceed further with the pendingproceeding or proceeding which may be instituted after such removal ofjurisdiction. After noting the above decisions, the Tribunal has examined the factsand has found that on the date when the Assessing Officer completed theassessment, he had no jurisdiction over the matter. The learned Advocate appearing for the respondent assessee placedreliance on the decision of the Division Bench of High Court of Judicature atBombay in Income Tax Appeal No. 889 of 2018 dated 2[nd] December, 2022. Inthe said case, the factual position is more or less identical to that of the case on hand. In the said case, it was contended by the Revenue that the AssessingOfficer would continue to exercise jurisdiction in the case of the assessee in asmuch as the PAN of the assessee came to be transferred only subsequently.This argument was rejected by the Division Bench and held that the transfer ofPAN is consequential to the transfer of jurisdiction and it is the PAN whichfollows the jurisdiction and not vice versa. Before us, the Revenue has canvassed that the files as well as the PANwas still lying within the jurisdiction of the Income Tax Officer Ward 1(4)Kolkata. The transfer of the files is a ministerial or an administrative act to bedone by the department for which the assessee cannot be held responsible.That apart, the transfer of the PAN was only a consequential proceeding to thetransfer of jurisdiction and therefore the same cannot be a ground to hold thatthe Assessing Officer had jurisdiction over the matter despite the order oftransfer passed by the Commissioner on 15.03.2013. Thus, we find no grounds to interfere with the order passed by thelearned Tribunal. Accordingly, the appeal fails and the substantial questions oflaw are answered against the Revenue. (T.S. SIVAGNANAM, CJ.) (HIRANMAY BHATTACHARYYA, J.)