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11-03-2019, Tata Sons, Section 2(7A), 2(28C), 2(1c), 116(cc), Tribunal Mumbai

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2 months 6 days ago #8791 by amit
Section - 2(7A), 2(28C), 2(1c), 116(cc), 117, 118, 119, 120, 124, 127
Order Date - 11-03-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - ACIT
Respondent - Tata Sons Ltd.
Justice - MAHAVIR SINGH JM & N.K. PRADHAN AM
Citation - 319Taxpundit239
Appeal No. - ITA No. 2519/MUM/2009
Asstt. Year - 2004-05

Order

PER : N.K. PRADHAN, AM

The captioned cross appeals- one by the Revenue and one by the assessee – are directed against the order of the Commissioner of Income Tax (Appeals)-XXX, Mumbai [ in short ‘CIT(A)’] and arise out of the assessment completed u/s 143(3) of the Income Tax Act 1961 (the ‘Act’). As common issues are involved, we are proceeding to dispose them off by this consolidated order for the sake of convenience.

2. The assessee has filed an additional ground of appeal on 17.03.2017 stating that (i) the assessment order dated 31.12.2007 passed by the Addl. Commissioner of Income Tax [in short ‘Addl. CIT’] is bad in law, illegal and without jurisdiction and/or in excess of jurisdiction, as he failed to establish that he possessed legal and valid jurisdiction u/s 120(4)(b) of the Act to pass the order, (ii) Addl. CIT can perform functions and, exercise powers of an Assessing Officer only if he is specifically directed u/s 120(4)(b) of the Act and (iii) assessment has to be completed by the authority who has initiated proceedings for making assessment and any other authority can take over proceedings only after a proper order of transfer u/s 127(1) or 127(2) of proceedings. In this regard, the Ld. counsel of the assessee relied upon the order of the Co-ordinate Bench on similar facts and filed a copy of those orders.

The Ld. counsel submits that the additional ground raised herein go to the very root of the matter and deal with the jurisdiction and authority of the AO to pass the assessment order.

The question of jurisdiction can always be raised as an additional ground for the first time and is bound to be entertained as was decided in K.P. Narayansetty v. CIT (1967) 66 ITR 11 (Mys.). As the additional grounds of appeal filed by the assessee go into the matter of jurisdiction and similar issues have been decided by the Co-ordinate Bench, we admit the said additional grounds of appeal for adjudication.

3. The assessee-company filed its return of income for the assessment year (AY) 2004-05 on 29.10.2004 declaring total income of Rs.21,99,34,573/-. The Addl. CIT, Range-2(3), Mumbai completed the assessment u/s 143(3) dated 27.12.2006 on a total income of Rs.758,60,37,690/-. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A), who vide order dated 30.01.2009 partly allowed the appeal. In further appeal, the assessee has raised the above additional grounds of appeal before the Tribunal. Stating that assessment order cannot be passed by any officer without authority of law, the Ld. counsel of the assessee relies on the order of the Tribunal in the case of (i) Tata Sons Ltd. v. ACIT (2017) (ITA No. 193 & 3745/Mum/2006) (Mum ITAT) (AY 2002-03) (Order date : 27th November 2007); (ii) Tata Communication Ltd. v. Addl. CIT (ITA No. 7071/Mum/2005) (Mum ITAT) (AY 2002-03) (Order date : 30th June, 2017) and (iii) Tata Sons Ltd. v. ACIT [2016] (76 taxmann.com 81) (Mum ITAT) (AY 2001-02) (Order date : 31st October, 2016). Also referring to the decision in Hatkesh Co-op. Hsg. Society Ltd. v. ACIT (ITA No. 328 of 2014) (Bom), the Ld. counsel refers to the following observations:

“We are of the view that when an identical issue, which had earlier arisen before the Coordinate Bench of the Tribunal on identical facts and a view has been taken on the issue then judicial discipline would demand that a subsequent bench of the Tribunal hearing the same issue should follow the view taken by its earlier Coordinate Bench.”

4. On the other hand, the Ld. DR, referring to the provisions contained under section 2(7A), 2(28C), 2(1c), 116(cc), 117, 118, 119, 120, 124, 127 and various other provisions of the Act explains that the term “Assessing Officer” would include Addl. CIT. It is further stated that as per section 2(28C), the JCIT would also include Addl. CIT since Addl. CIT is an income tax authority u/s 117(1) of the Act

The Ld. DR further submits that the CBDT vide notification No. 267 dated 17.09.2001, issued u/s 120(4)(b) has conferred power upon Addl. CIT to act as an “Assessing Officer”. In this regard, the Ld. DR drew our attention to the CBDT Notification dated 17.01.2009. Also relying upon the Notification dated 01 08 2001, vide letter No. MIC/HQ1/Jurisdiction/2001-02, it is submitted that the CIT in exercise of power conferred by the Board u/s 120(1) and 120 (2) of the Act vide Notification No. 732 (E) dated 31.07.2001 has directed the Additional/Joint CIT to exercise powers and perform functions of the Assessing Officer in respect of certain classes of person of a certain territorial area. Thus the Ld. DR submits that the Addl. CIT has validly exercised power of the Assessing Officer in initiating and completing the assessment proceedings in respect of the assessee.

5. We have heard the rival submissions and perused the relevant materials on record. We find that similar issue arose before the Coordinate Bench as mentioned by the Ld. counsel. In this context, we may

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