M/s. UV Realtors Pvt. Ltd., New Delhi v. ACIT, New Delhi

CO 11/DEL/2017 | 2012-2013
Pronouncement Date: 17-05-2021 | Result: Allowed

Appeal Details

RSA Number 1120123 RSA 2017
Assessee PAN AAACU7858B
Bench Delhi
Appeal Number CO 11/DEL/2017
Duration Of Justice 4 year(s) 3 month(s) 27 day(s)
Appellant M/s. UV Realtors Pvt. Ltd., New Delhi
Respondent ACIT, New Delhi
Appeal Type Cross Objection
Pronouncement Date 17-05-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 17-05-2021
Assessment Year 2012-2013
Appeal Filed On 20-01-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI G. S. PANNU VICE PRESIDENT AND SHRI AMIT SHUKLA JUDICIAL MEMBER I.T.A. NO.6033/DEL/2016 ASSESSMENT YEAR: 2012-13 ACIT CIRCLE-27(1) NEW DELHI. VS. M/S. UV REALTORS PVT. LTD. C-4 2 ND FLOOR SOAMI NAGAR NEW DELHI. TAN/PAN: AAACU 7858B (APPELLANT) (RESPONDENT) CO NO.11/DEL/2017 ASSESSMENT YEAR: 2012-13 M/S. UV REALTORS PVT. LTD. C-4 2 ND FLOOR SOAMI NAGAR NEW DELHI. VS. ACIT CIRCLE-27(1) NEW DELHI. TAN/PAN: AAACU 7858B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S.S. RANA CIT-DR RESPONDENT BY: SHRI D.C. AGARWAL. ADV. DATE OF HEARING: 11 03 2021 DATE OF PRONOUNCEMENT: 17 05 2021 O R D E R PER AMIT SHUKLA JM THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE AGAINST THE IMP UGNED ORDER DATED 19.07.2016 PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV KOLKATA FOR THE QUANTUM OF ASSESSMENT PASSED U/S.144 FOR THE ASSESSMENT YEAR 2 012- I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 2 13. IN THE GROUNDS OF APPEAL THE REVENUE HAS TAKEN FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE FOLLO WING ADDITIONS I) ADDITION RS. 15 02 655/- ON ACCOUNT OF RATES AN D TAXES (HOUSE TAX). II) ADDITION RS. 2 88 61 495/- ON ACCOUNT OF CREDI TS (TOTAL UNSECURED LOANS). III) ADDITION RS. 2 88 61 495/- ON ACCOUNT OF CRED ITS (TOTAL UNSECURED LOANS). IV) ADDITION RS. 6 61 873/- ON ACCOUNT OF DEPRECIA TION. BY ADMITTING ADDITIONAL EVIDENCES FILED BY ASSESSEE WITHOUT PROVIDING ANY OPPORTUNITY TO THE AO IN CONTRAVENTIO N OF THE PRINCIPAL OF NATURAL JUSTICE. WHEREAS THE ASSESSEE IN HIS CROSS OBJECTION HAS CHALLENGED THE VALIDITY OF THE ASSESSMENT ON THE GR OUND THAT ASSESSING OFFICER DID NOT HAD VALID JURISDICTION OVE R THE CASE. THE GROUNDS RAISED IN THE CROSS OBJECTION READS AS UNDER: 1. THAT THE ASSESSING OFFICER HAS NOT VALID JURISD ICTION OVER THE CASE OF THE APPELLANT. THE RETURN WAS BEING FILED Y EAR AFTER YEAR BY THE APPELLANT IN DELHI AND CONSEQUENTLY THE ASSESSM ENT SO FRAMED IN FURTHERANCE OF SUCH INVALID ASSUMPTION OF JURISD ICTION IS ALSO BAD IN LAW. 2. THAT THE LD. CIT(A) IS CORRECT IN LAW IN ALLOWIN G THE RELIEF TO THE ASSESSEE AND CONSEQUENTLY THE OBJECTION AS RAIS ED BY THE I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 3 REVENUE IN ITS APPEAL IS NOT MAINTAINABLE AND DESER VED TO BE DISMISSED. 2. SINCE THE ISSUE RAISED IN THE CROSS OBJECTION G OES TO THE VERY ROOT OF THE VALIDITY OF THE ASSESSMENT THEREF ORE SAME IS BEING TAKEN UP FIRST. 3. THE BRIEF FACTS APROPOS THE ISSUE RAISED IN CROS S OBJECTION ARE THAT ASSESSEE IS A COMPANY WHICH WAS REGISTERED ON 04.11.2004 AND SINCE THEN IT HAS REGI STERED OFFICE AT NEW DELHI WHICH IS EVIDENT FROM THE COPY OF CERTIFICATE OF INCORPORATION AT PAGE 36 OF THE PAPE R BOOK. THE ASSESSEE-COMPANY DERIVES RENTAL INCOME FROM THE PRO PERTIES WHICH ARE SITUATED IN DELHI AND NCR EVER SINCE ITS INCEPTION. SINCE ASSESSMENT YEAR 2005-06 ASSESSEE-COMPANY HAS BEEN FILING THE RETURN OF INCOME IN DELHI AND EVEN FOR T HE IMPUGNED ASSESSMENT YEAR 2012-13 ALSO IT HAS FILED ITS E-RE TURN ON 26.09.2012 DECLARING TOTAL INCOME OF RS.50 19 204/- . THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTI CE U/S.143(2) WAS ISSUED BY ITO WARD-10(2) KOLKATA. HOWEVER AS PER THE ASSESSING OFFICER NO COMPLIANCE WAS MAD E BY ASSESSEE DESPITE THE NOTICES WERE ISSUED AND SENT T HROUGH REGISTERED POST AT THE ADDRESS GIVEN IN THE ITR OF THE ASSESSEE-COMPANY WHICH WAS D-1108 NEW FRIENDS COLO NY NEW DELHI-110065. SINCE THERE WAS NO COMPLIANCE AS PER THE ASSESSING OFFICER DESPITE REPEATED NOTICES THE ASS ESSMENT WAS COMPLETED EX-PARTE U/S.144 BY THE DEPUTY COMMIS SIONER OF INCOME TAX CIRCLE-10(2) KOLKATA WHO HAS MADE THE FOLLOWING ADDITIONS IN THE ASSESSMENT ORDER; I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 4 (I) UNEXPLAINED CASH CREDIT ON ACCOUNT OF UNEXPLAINED L OAN OF RS.2 88 61 495/- (II) INTEREST PAID ON BORROWED FUNDS OF RS.44 57 322/- (III) DISALLOWANCE OF DEPRECIATION OF RS.6 61 873/- (IV) DISALLOWANCE ON ACCOUNT OF RATES AND TAXES OF RS.15 02 655/- 4. APART FROM THAT ASSESSING OFFICER HAS ALSO DISA LLOWED THE CLAIM OF DEDUCTION U/S.24(A) WHILE ASSESSING TH E INCOME FROM HOUSE PROPERTY ON THE GROUND THAT ASSESSEE HAS NOT PRODUCED ANY EVIDENCE. 5. BEFORE THE LD. CIT(A) KOLKATA THE ASSESSEE CHA LLENGED THAT LD. ASSESSING OFFICER HAS ERRED IN LAW IN PAS SING EX-PARTE ASSESSMENT ORDER U/S.144 WITHOUT HAVING JURISDICTION OVER THE CASE ON THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE WAS REGISTERED AT NEW DELHI AND HAS A REGISTERED OF FICE AT NEW DELHI AND IT NEITHER HAD ANY BUSINESS NOR ANY BUSIN ESS CONNECTION IN KOLKATA THEREFORE JURISDICTION UNDER THE INCOME TAX ACT LIES WITH THE ASSESSING OFFICER AT N EW DELHI NOT AT KOLKATA. IN THIS REGARD THE SUBMISSIONS MAD E BY THE ASSESSEE BEFORE THE CIT(A) WAS AS UNDER: THE APPELLANT WAS ORIGINALLY REGISTERED ON 4TN NOV EMBER 2004 WITH A CIN NO. U70101DL2004PTC130419 HAVING ITS REG ISTERED OFFICE AT NEW DELHI. A COPY OF THE CERTIFICATE OF I NCORPORATION IS ATTACHED HEREWITH FOR YOUR KIND CONSIDERATION AND R ECORD PLEASE. I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 5 B) THE TERRITORIAL JURISDICTION BEING EX DELHI THE APPELLANT CONTINUOUSLY FILED ITS RETURN OF INCOME SINCE INCEP TION AT NEW DELHI JURISDICTION ONLY AS UNDER- I) FOR THE ASSESSMENT YEAR 2005-06 THE RETURN WAS PREPARED MANUALLY AND FILED WITH ADDITIONAL COMMISSIONER RA NGE 18 NEW DELHI. A STAMP WAS OBTAINED AS RECEIPT FOR FILI NG THE RETURN. II) FOR THE ASSESSMENT YEAR 2006-07 TO 2008-09 THE RETURNS WERE FILED ELECTRONICALLY + ONE HARD COPY O F THE ACKNOWLEDGEMENTS WERE FILE PHYSICALLY AT THE RELEVANT WARD/CIRCLE/RANGE 18 AT NEW DELHI UNDER A STAMP OF THE RELEVANT WARD/CIRCLE/RANGE AT NEW DELHI. III) FOR THE ASSESSMENT YEAR 2009-10 TO 2012-13 THE RETURNS WERE FILED ELECTRONICALLY SHOWING DESIGNATION OF T HE ASSESSING OFFICER AS RANGE 18 NEW DELHI UNDER DIGITAL SIGNA TURES AND THEREFORE THERE WAS NO NEED TO FILE HARD COPY OF ACKNOWLEDGEMENTS WITH THE RELEVANT WARD/CIRCLE/RANG E AT NEW DELHI. A COPY OF THE ACKNOWLEDGEMENTS FOR THE ASSES SMENT YEAR 2005-06 TO 2012-13 ARE BEING ATTACHED HEREWITH FOR YOUR KIND CONSIDERATION AND RECORD PLEASE. C) THE APPELLANT HAS NO BUSINESS OR ANY OTHER CONN ECTION AT KOLKATA. D) THE APPELLANT IS LEGALLY ENTITLED TO CALL IN QU ESTION THE JURISDICTION OF THE DCIT CIRCLE 10(2) KOLKATA WITH IN THE PROVISIONS OF SECTION 124(3) AND THE SAME WAS CHALL ENGED VIDE APPELLANTS SUBMISSION DATED 29.08.2013. I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 6 E) THE APPELLANT CHALLENGED THE JURISDICTION OF AS SESSING OFFICER WARD 10(2) KOLKATA WITHIN ONE MONTH AS PRO VIDED IN SECTION 124(3) OF THE INCOME TAX ACT 1961. THE NOT ICE U/S 143(2) DATED 06.08.2013 FOR THE ASSESSMENT YEAR 201 2-13 ISSUED BY THE LEARNED ASSESSING OFFICER WARD 10(2) KOLKATA TO PRESENT BEFORE HIM ON 2ND SEPTEMBER 2013 WAS FORTH WITH REPLIED VIDE REPLY DATED 29.08.2013' WHICH WAS SENT BY THE APPELLANT THROUGH SPEED POST UNDER RECEIPT NO. ED245240050IN DATED 29.08.2013 INFORMING THE ASSESS ING OFFICER THAT THE COMPANY HAS NO CONNECTION WITH KOL KATA AND THE REGISTERED OFFICE OF THE COMPANY IS AT NEW DELH I AND THEREFORE THE TERRITORIAL JURISDICTION OF THE COMP ANY LIES WITH ASSESSING OFFICER AT NEW DELHI AND NOT AT KOLKATA. ASSESSEE ALSO REQUESTED TO EITHER DROP THE PROCEEDINGS OR TH E CASE BE TRANSFERRED TO NEW DELHI JURISDICTION. F) AFTER THE ASSESSEE CALLED IN QUESTION THE JURIS DICTION OF THE ASSESSING OFFICER WARD 10(2) KOLKATA THE ASSE SSING OFFICER IF NOT SATISFIED WITH THE CORRECTNESS OF T HE CLAIM THE ASSESSING OFFICER WARD 10(2) KOLKATA SHOULD HAVE R EFERRED THE MATTER FOR DETERMINATION OF JURISDICTION UNDER SECT ION 124(4) BEFORE THE HIGHER AUTHORITIES REFERRED IN SECTION 1 24(2) OF THE INCOME TAX ACT. THE ASSESSING OFFICER KOLKATA HAS COMPLETELY FAILED IN DISCHARGING HIS OBLIGATIONS UNDER THE PRO VISIONS OF SECTION 124(4) IN THIS REGARD BEFORE THE COMPLETION OF ASSESSMENT IN THIS CASE. G) THE JURISDICTION OF THE ASSESSING OFFICER AT DE LHI WAS NEVER TRANSFERRED BY THE CENTRAL BOARD OF DIRECT TA XES BECAUSE THE APPELLANT WAS NEVER SERVED A NOTICE FOR GIVING REASONABLE OPPORTUNITY OF BEING HEARD AS PROVIDED UNDER SECTIO N 127 OF THE I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 7 INCOME TAX ACT BEFORE TRANSFERRING THE JURISDICTION FROM NEW DELHI TO KOLKATA. THE APPELLANT ALSO NEVER APPLIED FOR TRANSFERRING THE JURISDICTION FROM NEW DELHI TO KOL KATA. 1.2 AS A MATTER OF FACT JURISDICTION FOR ASSESSMEN T UNDER THE I.T. ACT LIES WITH ASSESSING AUTHORITY AT NEW DELHI AND NOT AT KOLKATA. 1.3 YOUR KIND ATTENTION IS DRAWN TO THE ASSESSMENT ORDER IN WHICH THE ASSESSING OFFICER HAS CLAIMED TO HAVE SERVED NOTICES U/S 143(2) DATED 06.08.2013 AND U/S. 142(1) OF THE I.T. ACT DT. 15.05.2014 AND 20.01.2015. THE ASSESSING OF FICER HAS ALSO CLAIMED THAT NOTICES U/S 143(2) AND U/S. 142(1 ) OF THE LT. ACT REMAINED UN-COMPLIED WITH BY THE ASSESSEE AND A ISO THAT THE QUESTIONNAIRES U/S 142(1) DT. 15.05.2014 AND 20 .01.2015 REMAINED UN-COMPLIED. ACCORDING TO THE A.O. A FINAL NOTICE U/S. 142(1) PRESUMABLY ISSUED BY THE A.O. ON 02.02.2015 ALSO REMAINED UN-COMPLIED. 1.4 AS A MATTER OF FACT THE CLAIMS/OBSERVATIONS O F THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ARE FACTU ALLY INCORRECT THE FACT IS THAT ONLY ONE NOTICE U/S 143 (2) DATED 06.08.2013 WAS RECEIVED BY THE APPELLANT ON 22.08.2 013 AT THE THEN ADDRESS OF THE REGISTERED OFFICE WHICH WAS COM PLIED WITH ON 29.08.2013 WHICH IS WELL WITHIN ONE MONTH AS REQ UIRED UNDER THE PROVISIONS OF SECTION 124(3) DULY RECEIVE D BY THE ASSESSING OFFICER ON 02.09.2013. IN THE SAID RESPON SE THE APPELLANT CHALLENGED THE JURISDICTION OF THE ASSESS ING OFFICER BECAUSE THE ASSESSING OFFICER [D.C.I.T. CIRCLE 10(2 ) KOLKATA] WAS NOT EMPOWERED UNDER LAW TO HAVE TERRITORIAL JUR ISDICTION OVER THE CASE WHICH HAVE PRINCIPAL PLACE OF BUSINES S AT DELHI. I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 8 1.5 THAT WHILE ISSUING ABOVE SAID NOTICE ADDRESSED AT NEW DELHI THE ASSESSING OFFICER [D.C.I.T. CIRCLE 10(2) KOLKATA] WAS AWARE THAT THE APPELLANTS PRINCIPAL BUSINESS IS AT NEW DELHI WHICH IS A PLACE OUT OF HIS TERRITORIAL JURISDICTIO N. IN SPITE OF THAT KNOWLEDGE THE ASSESSING OFFICER KEPT ON COMPLETING THE ILLEGAL ASSESSMENT. 1.6 AS SUCH IT IS ESTABLISHED WITHOUT DOUBT THAT THE ASSESSMENT WAS MADE BY THE LEARNED ASSESSING OFFICE R WITHOUT HAVING ANY TERRITORIAL JURISDICTION AND THE ASSESSING OFFICER HAS GROSSLY VIOLATED THE PROVISIONS OF SECT ION 124(4) OF THE INCOME TAX ACT. ON THE BASIS OF FOREGOING SUBMI SSION THE ASSESSMENT FRAMED BY DCIT WARD 10(2) KOLKATA MAY B E DECLARED NULL & VOID AB-INITIO AND MAY KINDLY BE AN NULLED 1.7 YOUR KIND ATTENTION IS ALSO INVITED TO THE RAT IO LAID DOWN IN THE CASE OF INDIA GLYCOLS LIMITED VS. CIT (2005) 274 ITR 137 (CAL) WHICH IS A DECISION OF THE JURISDICTIONAL HIG H COURT. IN APPELLANTS CASE THE REGISTERED OFFICE OF THE COMP ANY PRINCIPLE PLACE OF BUSINESS AND CONTROL OFFICE OF THE COMPANY IS TOTALLY CONFINED TO THE UNION TERRITORY OF DELHI. ALL THE R ETURNS OF INCOME FROM THE INCEPTION OF THE COMPANY WERE FILED WITH THE ASSESSING OFFICER AT DELHI. THE RETURN OF INCOME PI CKED UP BY THE ASSESSING OFFICER KOLKATA DEARLY REFLECTS THAT THE JURISDICTION OF THE CASE LIES WITH THE ASSESSING OF FICER AT NEW DELHI. EVEN THE ADDRESS OF THE COMPANY REFLECTED IN THE ASSESSMENT ORDER FRAMED BY A.O. KOLKATA IS THAT OF DELHI. IN THE ABSENCE OF ANY ORDER U/S. 127 THE JURISDICTION ASSUMED BY DCIT 10(2) KOLKATA IS TOTALLY ILLEGAL AND ACCORDIN GLY THE ASSESSMENT MADE THE ASSESSING OFFICER KOLKATA IN F URTHERANCE I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 9 OF ASSUMPTION OF SUCH ILLEGAL JURISDICTION IS ALSO BAD IN LAW AND ILLEGAL. HENCE IT SHOULD BE ANNULLED. 6. LD. CIT(A) HAS CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER ON THE SUBMISSION MADE BY THE ASS ESSEE WHO SUBMITTED HIS REMAND REPORT DATED 28.06.2016. L D. CIT(A) ON THE BASIS OF THE SAID REMAND REPORT HAS D ISMISSED THE ASSESSEES GROUND AFTER OBSERVING AND HOLDING A S UNDER: 4.2. I HAVE CONSIDERED THE SUBMISSIONS OF THE AR O F THE APPELLANT ON THE PERTINENT ISSUE OF THE AO ILLEGALL Y ASSUMING JURISDICTION OVER THE CASE OF THE APPELLANT AND CON SEQUENTLY PASSING THE IMPUGNED ORDER. I HAVE FULLY CONSIDERED THE CONTENTIONS OF THE AR IN THIS REGARD WHICH SOLELY REVOLVE AROUND THE FACT THAT THE APPELLANT WAS INCORPORATED WITH REGISTERED OFFICE IN NEW DELHI. ITS DIRECTORS AS WE LL AS ITS PRINCIPAL PLACE OF BUSINESS ALWAYS REMAINED IN NEW DELHI. THE APPELLANT HAS NO BUSINESS CONNECTION IN KOLKATA . IT HAS FILED ITS RETURN OF INCOME MANUALLY AS WELL AS ELEC TRONICALLY FOR ALL PREVIOUS YEARS WITH THE AO HAVING JURISDICT ION ON THE APPELLANT IN NEW DELHI. IT WAS FURTHER CONTENDED BY THE APPELLANT THAT THERE WAS NO ORDER U/S 127 EVER PASS ED FOR TRANSFERRING THE JURISDICTION FROM NEW DELHI AND TH US THE ORDER FRAMED U/S 144 SHOULD BE HELD TO BE VOID AB-I NITIO. THE AO IN HIS REPORT MENTIONS THAT AS PER THE RECORD AV AILABLE WITH STD AST THE APPELLANT HAD FILED ITS RETURN OF INCOME FOR AY 2006-07 VIDE ACKNOWIEDGEMENTNO.57000184 IN THE A O CODE WBG- D-805-1 ON 25.12.2006 THE SAME WAS PROCE SSED U/S 143(1) ON 20.02.2008. THE AO MENTIONS THAT THE APPELLANT HAS ITSELF MENTIONED IN THE AO COLUMN IN ITS RETURN I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 10 FOR AV 2006-07 AS AO WARD-10(2) KOLKATA. THEREAFTE R THE AO HAS GIVEN ENTIRE PAN HISTORY 'OF THE APPELLANT. THE AO FURTHER STATES THAT IN AIL SUBSEQUENT RETURNS FILED BY THE APPELLANT FROM AY 2007-08 TO 20012-13 ALL THE RETU RNS WERE DULY PROCESSED IN KOLKATA AND THE APPELLANT NEVER R AISED ANY OBJECTIONS TO SUCH PROCESSING. THE STATUTORY NO TICE U/S. 143(2) WAS ISSUED AND DULY SERVED UPON THE APPELLAN T AT ITS NEW DELHI ADDRESS. THE APPELLANT REQUESTED THE AO T O TRANSFER ITS CASE FROM KOLKATA TO NEW DELHI. HOWEVE R THE APPELLANT NEVER MADE A REQUEST TO THE CONCERNED CIT FOR TRANSFERRING ITS CASE FROM KOLKATA TO NEW DELHI U/S 127 OF THE ACT. I FIND THAT THE APPELLANT HAS NOT BEEN ABL E TO REBUT THE FACTUAL ASPECT POINTED OUT BY THE AO IN ITS REP ORT AND THEREFORE I AM UNABLE TO ACCEPT THE CONTENTIONS OF THE APPELLANT THAT THE ASSESSMENT FRAMED AT KOLKATA LAC KS JURISDICTION AND THEREFORE THE ASSESSMENT SHOULD BE ANNULLED. I FIND THAT THERE WAS NO LEGAL GROUND FOR THE APPELLANT TO SEEK TRANSFER OF ITS CASE FROM KOLKATA CHARGE TO NEW DELHI CHARGE WITHOUT APPLYING FOR TRANSFER OF I TS CASE U/S 127 OF THE ACT. THE FACT THAT THE RETURNS WERE DULY PROCESSED AT KOLKATA IS ALSO NOT IN DISPUTE THUS I HOLD THAT THE ASSESSMENT FRAMED BY THE AO IS WITHIN HIS JURIS DICTION AND THERE IS NO ILLEGALITY IN FRAMING THE ORDER BY THE PRESENT AO. THIS GROUND IS DISMISSED. 7. BEFORE US LD. COUNSEL FOR THE ASSESSEE MR. D.C . AGARWAL SUBMITTED THAT HERE IN THIS CASE ALL THROUGHOUT AS SESSEE- COMPANY WAS NOT ONLY REGISTERED AT NEW DELHI BUT HA D ITS REGISTERED OFFICE RIGHT FROM THE BEGINNING AT NEW D ELHI. ALL THE INCOME DERIVED INCLUDING RENTAL INCOME WAS DERIVED FROM THE I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 11 PROPERTIES SITUATED IN DELHI. THE ASSESSEE NEVER HA D ANY BUSINESS IN KOLKATA NEITHER ANY ESTABLISHMENT OR PR OPERTY NOR ANY RESIDENCE OF DIRECTORS OF THE COMPANY IN KO LKATA. THE RETURN OF INCOME FOR THE VARIOUS YEARS HAVE BEEN RE GULARLY FILED AT DELHI WITH RANGE-18 RIGHT FROM THE ASSESS MENT YEAR 2005-06 WHEN RETURN WAS FILED MANUALLY AND FROM TH E ASSESSMENT YEARS 2006-07 TO 2008-09 IT WAS FILED ELECTRONICALLY ALONG WITH COPY OF MANUAL COPY SUBMI TTED BEFORE ASSESSING OFFICER RANGE-18 NEW DELHI. EVEN WHILE FILING THE RETURN OF INCOME ELECTRONICALLY FROM THE ASSESSMENT YEARS 2009-10 TO 2014-15 THE DESIGNATION OF THE AS SESSING OFFICER WAS ALWAYS SHOWN AS RANGE-18 NEW DELHI. TH E DETAILS OF FILING OF RETURN OF INCOME AND ACKNOWLEDGMENT RI GHT FROM THE ASSESSMENT YEARS 2005-06 TO 2014-15 HAVE BEEN P LACED IN THE PAPER BOOK FROM PAGES 37 TO 46. HE POINTED O UT THAT NONE OF THE RETURN WERE EVER FILED IN KOLKATA. HE F URTHER SUBMITTED THAT THE ASSESSEE NEVER HAD ANY ACKNOWLED GE AS TO HOW THE ASSESSING OFFICER KOLKATA WAS HOLDING THE JURISDICTION OF THE ASSESSEE AND NO NOTICE/ORDER OR ACKNOWLEDGEMENT WAS EVER SERVED ON THE ASSESSEE BY THE ASSESSING OFFICER KOLKATA. IT WAS ONLY IN THE ASSE SSMENT YEAR 2012-13 ASSESSEE FOR THE FIRST TIME IN FEBRUARY 2 016 CAME TO KNOW THAT ASSESSEES BANK ACCOUNT HAS BEEN ATTAC HED BY ASSESSING OFFICER KOLKATA AND THEN IT WAS DISCOVER ED THAT EX- PARTE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER CIRCLE-10 KOLKATA AGAINST THE DEMAND RAIS ED. THEREAFTER TRUE COPY OF THE ASSESSMENT ORDER WAS O BTAINED I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 12 FROM ASSESSING OFFICER CIRCLE -10 KOLKATA AND ON THAT BASIS APPEAL WAS FILED WITH LD. CIT(A) KOLKATA ON 03.03. 2016 WHICH WAS ADMITTED AND DECIDED BY THE IMPUGNED ORDER DATE D 19.07.2016. 8. LD. COUNSEL FURTHER SUBMITTED THAT ONE OF THE NO TICES SENT U/S.143(2) AT A NEW DELHI ADDRESS BY THE ASSES SING OFFICER ON 06.08.2013 SIGNED BY ITO WARD-10 KOLKA TA FOR ASSESSMENT YEAR 2012-13 WAS RECEIVED BY THE ASSESS EE AND IMMEDIATELY THEREAFTER ASSESSEE HAS RAISED OBJECTI ON TO THE JURISDICTION OF ITO WARD-10(2) KOLKATA VIDE LETTER DATED 29.02.2013 WHICH WAS SENT THROUGH SPEED POST ON THE SAME DATE. THE COPY OF WHICH HAS BEEN PLACED IN THE ADDI TIONAL PAPER BOOK PAGE 2. THE ASSESSING OFFICER IN RESPONS E TO SUCH LETTER INTIMATED TO THE ASSESSEE VIDE LETTER DATED 03.09.2013 THAT THE JURISDICTION ON ASSESSEE WOULD LIE TO HIM ON ACCOUNT OF PAN DATA BASE AND THE PAN OF THE ASSESSEE WAS AL LOTTED FROM KOLKATA IT WAS AAACU7858B. THE ASSESSING OFF ICER REJECTED THE OBJECTION RAISED BY THE ASSESSEE AT HI S OWN LEVEL WITHOUT EVEN INVOKING THE PROVISION OF SECTION 124( 4) WHEREIN REFERENCE TO PCIT HAS TO BE MADE MANDATORILY. THERE AFTER ITO WARD-10(2) TRANSFERRED THE CASE TO DCIT-10(2) KOLKATA WHO HAS PASSED AN EX-PARTE ORDER DATED 18.03.2015 AT AN INCOME OF RS.5 01 27 490/-. NO NOTICES SENT BY DCIT CIRCLE- 10 WAS RECEIVED BY THE ASSESSEE. WHEN THE ASSESSEE HAS CHALLENGED THE JURISDICTION AND TRANSFER OF JURISDIC TION FROM KOLKATA TO DELHI BY WAY OF AN ALTERNATIVE PLEA VIDE LETTER DATED 29.08.2013 TO PCIT HE THEN COMMUNICATED THAT ISSUE OF I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 13 TRANSFER WILL BE CONSIDERED AFTER 31 ST MARCH 2015 AFTER THE COMPLETION OF THE ASSESSMENT. 9. LD. COUNSEL FURTHER SUBMITTED THAT IF ITO WARD- 10(2) KOLKATA WAS PROCESSING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 AND ALSO FOR THE EARLIER AS SESSMENT YEAR THEN FROM THE BODY OF THE RETURN HE SHOULD H AVE KNOWN THAT THE ASSESSEE-COMPANY HAS BEEN FILING ITS RETUR N OF INCOME REGULARLY WITHIN THE JURISDICTION OF RANGE-18 NEW DELHI AND WHENEVER QUESTION OF JURISDICTION ARISES THEN SAME HAS TO BE DETERMINED BY PCCIT/PDGIT/PCIT/PDIT. THE ITO WARD-10(2) DID NOT HAVE THE STATUTORY AUTHORITY OR POWER TO PROCEED FOR MAKING THE ASSESSMENT. BECAUSE IN SUCH CASE INVOKING OF SECTION 124(2) IS MANDATORY AND ANY VIO LATION THEREOF WILL INVALIDATE THE ASSESSMENT. 10. WITHOUT PREJUDICE HE FURTHER SUBMITTED THAT AS SESSEE HAS RAISED OBJECTION TO THE JURISDICTION OF THE ITO WARD-10(2) KOLKATA WITHIN ONE MONTH OF ISSUANCE OF NOTICE U/S. 143(2) DATED 06.08.2013 WHICH WAS DISPOSED OF BY HIM ON 03.09.2013 AND THEREFORE THE REQUIREMENT UNDER A LAW FOR RAISING THE OBJECTION WITHIN ONE MONTH STANDS DULY COMPLIED WITH. THE ASSESSING OFFICER KOLKATA COULD NOT HAVE ANY JURISDICTION U/S.120 BECAUSE IN TERMS OF SECTION 120 (3) JURISDICTION OF THE ASSESSING OFFICER IS BASED ON; FIRSTLY TERRITORIAL AREA; SECONDLY PERSON OR CLASSES OF PERSON; THIRDLY INCOME OR CLASSES OF INCOME; AND LASTLY CASES OR CLASSES OF CASES. HERE THE CASE OF THE ASSESSEE DOES NOT FILE IN EITHER OF I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 14 THE ABOVE CATEGORIES AND NO CASE HAS BEEN MADE OUT BY THE ASSESSING OFFICER OR LD. CIT(A) THAT THE NATURAL JU RISDICTION OF THE ASSESSEE FALLS IN ANY OF THE FOUR CATEGORIES ME NTIONED IN SECTION 120(3). FURTHER PAN OR ALLOTMENT OF PAN IS NOT A CRITERIA MENTIONED IN SECTION 120(3) SO AS TO PROVI DE JURISDICTION TO THE ASSESSING OFFICER KOLKATA BECAU SE THE ALLOTMENT OF PAN IS NOT UNDER THE CONTROL OF THE AS SESSEE. U/S.124(1) JURISDICTION OF THE ASSESSING OFFICER OVE R THE ASSESSEE IS DECIDED BY THE CBDT ON THE BASIS OF WHE RE ASSESSEE IS EITHER CARRYING THE BUSINESS IN THAT AR EA ASSIGNED TO THE ASSESSING OFFICER U/S.120 OR THE ASSESSEE RE SIDING WITHIN THAT AREA. IN SUPPORT OF HIS CONTENTION HE STRONGLY RELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COUR T IN THE CASE OF S.S. AHLUWALIA (2014) 46 TAXMANN.COM 169. THE RELEVANT OBSERVATION OF THE HONBLE HIGH COURT READ S AS UNDER: 34. ON ANALYZING THE NEW SECTION 124 IT IS VIEWED THAT AS PER SUB-SECTION (1) ASSESSING OFFICER HAS JURISDICTION IN RESPECT OF PERSONS CARRYING ON BUSINESS OR PROFESSION WHERE SU CH BUSINESS OR PROFESSION WAS BEING CARRIED OUT OR SITUATED WITHIN THE AREA OR WHERE THE BUSINESS OR PROFESSION WAS CARRIED ON IN DIFFERENT AREAS IF THE PRINCIPAL PLACE OF BUSINESS OR PROFESSION WA S SITUATED WITHIN THE AREA. ASSESSING OFFICER UNDER SUB-CLAUSE (B) AL SO HAD JURISDICTION IN RESPECT OF ANY OTHER PERSON(S) RESI DING WITHIN THE AREA. RESIDENCE AND PLACE OF BUSINESS BEING THE BAS IS. SUB-SECTION (2) STIPULATES THAT QUESTION/ DISPUTE OF JURISDICTI ON AMONG TWO OR MORE ASSESSING OFFICERS IF RAISED SHALL BE DETERM INED BY THE DIRECTOR- GENERAL CHIEF COMMISSIONER OR THE COMMIS SIONER OR IF THE QUESTION RELATES TO AREAS FALLING WITHIN THE JURISD ICTION OF DIFFERENT I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 15 DIRECTORS-GENERAL CHIEF COMMISSIONERS OR COMMISSIO NERS THEN BY THE DIRECTORS-GENERAL CHIEF COMMISSIONERS OR COMMI SSIONERS CONCERNED AND IF THEY ARE NOT IN AGREEMENT BY THE BOARD OR BY SUCH DIRECTOR-GENERAL CHIEF COMMISSIONER OR COMMIS SIONER THAT THE BOARD MAY BY AN OFFICIAL GAZETTE SPECIFY. SUB-S ECTION (3) FURTHER STIPULATES THAT THE OBJECTION TO THE JURISDICTION C OULD BE QUESTIONED BY AN ASSESSEE OR A PERSON WITHIN ONE MONTH FROM TH E DATE ON WHICH RETURN OF INCOME UNDER SECTION 139(1) WAS MAD E OR WITHIN ONE MONTH FROM THE DATE OF ISSUANCE OF NOTICE UNDER SECTION 142(1) OR 143(2) OR AFTER COMPLETION OF ASSESSMENT WHICHE VER WAS EARLIER. IF NO RETURN OF INCOME WAS MADE OBJECTION TO THE J URISDICTION COULD BE ENTERTAINED IF MADE WITHIN THE TIME ALLOWED BY WAY OF NOTICE UNDER SECTION 115WD(2)/142(1)/115WH(1)/148 OF THE A CT TO MAKE THE RETURN OR BY NOTICE UNDER FIRST PROVISO TO SECT IONS 115WF OR 144 TO SHOW CAUSE WHY THE ASSESSMENT SHOULD NOT BE COMP LETED BY THE BEST JUDGMENT OF THE ASSESSING OFFICER WHICHEVER W AS EARLIER. SUB- SECTION (4) LAYS DOWN THAT WHEN AN ASSESSEE RAISES A DISPUTE REGARDING JURISDICTION OF THE ASSESSING OFFICER AND THE ASSESSING OFFICER IF NOT SATISFIED WITH THE CORRECTNESS OF TH E CLAIM HE SHALL REFER THE MATTER FOR DETERMINATION AS PER SUB-SECTI ON (2) OF SECTION 124 HOWEVER THIS SHOULD BE DONE BEFORE THE ASSESS MENT WAS MADE. THE AFORESAID SECTION THEREFORE POSTULATES WAIVER OF OBJECTION TO ASSUMPTION OF JURISDICTION BY THE ASSE SSING OFFICER. TIME LIMIT FOR RAISING THE OBJECTION STANDS STIPULA TED. PRINCIPLE OF DEEMED WAIVER APPLIES. THIS COULD ONLY HAPPEN WHEN THE AUTHORITY DOES NOT LACK OR SUFFER FROM INHERENT LACK OF SUBJE CT MATTER JURISDICTION. WHEN THERE IS INHERENT LACK OF SUBJEC T MATTER JURISDICTION PRINCIPLE OF WAIVER DOES NOT APPLY. T HE PRINCIPLE BEING SIMPLE THAT BY CONSENT ONE CANNOT CONFER JURISDICTI ON ON AUTHORITY WHICH LACKS INHERENT SUBJECT MATTER JURISDICTION ' [EMPHASIS SUPPLIED] I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 16 11. THUS HE SUBMITTED THAT IN THE PRESENT CASE THE RE IS INHERENT LAW OF JURISDICTION WITH THE ASSESSING OFFI CER KOLKATA U/S.124(1) SECONDLY OBJECTION U/S.124(3) RAISED WITHIN THE STATUTORY PERIOD HAS NOT BEEN DISPOSED O F AS PER THE REQUIREMENT OF SECTION 124(2)/124(4). THEREFORE THE ENTIRE ASSESSMENT ORDER IS BAD IN LAW. IN SUPPORT O F HIS CONTENTION HE RELIED UPON THE FOLLOWING JUDGMENT. I. SEKHAR KUMAR GOENKA VS. ACIT (2014) 47 TAXMANN.COM 236 (CUTTACK-TRIB). II. JOGINDER SINGH V. CIT (1981) 6 TAXMAN 245 (P UNJ. & HAR.) III. KUNJI MAL & SONS V. CIT (1982) 138 ITR 391 (DE LHI) IV. ABHISHEK JAIN V. ITO (2018) 94 TAXMANN.COM 35 5 (DELHI). 12. ON THE OTHER HAND LD. CIT-DR SUBMITTED THAT F IRSTLY AS PER THE PAN HISTORY OF THE ASSESSEE PAN OF THE ASS ESSEE WAS WITH WARD-10(2) KOLKATA UPTO 01.07.2016. SINCE PAN OF THE ASSESSEE WAS IN KOLKATA ANY E-RETURN OF INCOME FIL ED BY THE ASSESSEE AND WOULD AUTOMATICALLY BE LINKED WITH THE JURISDICTION OF WARD-10(2) KOLKATA. SECONDLY THE A SSESSEE HAS FILED ITS RETURN OF INCOME FOR THE ASSESSMENT Y EAR 2007- 08 WITH WARD-10(2) KOLKATA. DURING THE ENTIRE PERI OD OF 2007-08 TO 2012-13 NO APPLICATION WAS FILED BY THE ASSESSEE U/S.127 TO TRANSFER THE CASE FROM KOLKATA TO DELHI. HE ALSO REFERRED TO THE PROVISION OF SECTION 139A(5)(D) AND SUBMITTED I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 17 THAT AS PER THE REQUIREMENT OF THE SAID PROVISION THE ASSESSEE IS REQUIRED TO INTIMATE THE ASSESSING OFFICER REGAR DING CHANGE IN ADDRESS OF THE PAN WHICH HAS NOT BEEN DONE. HE F URTHER SUBMITTED THAT ALL THE RETURNS RIGHT FROM THE ASSES SMENT YEARS 2007-08 TO 2012-13 WAS PROCESSED U/S.143(1) I N THE ASSESSING OFFICER CODE OF ITO WARD-10(2) KOLKATA. WHEN ASSESSEE FILED A LETTER ON 29.08.2017 REQUESTING TO TRANSFER ITS CASE TO NEW DELHI THE ASSESSING OFFICER VIDE LETTE R DATED 03.09.2013 INFORMED THE ASSESSEE THAT IT WAS REQUIR ED TO MOVE AN APPLICATION U/S.127 FOR MIGRATION OF PAN. L ATER ON ONLY THE CASE TRANSFERRED FROM ITO WARD-10(2) KOL KATA ON 14.12.2014 TO DCIT CIRCLE-10 KOLKATA WHO REFERRED THE MATTER TO PCIT-IV KOLKATA TO TRANSFER CASE TO DELH I. ON 16.01.2015 PCIT-IV KOLKATA DIRECTED THAT JURISDICTI ON MAY BE CONSIDERED AFTER 31 ST MARCH 2013. THUS ON THESE FACTS THE ASSESSING OFFICER KOLKATA HAD CORRECTLY ASSUMED THE JURISDICTION AND PASSED THE ASSESSMENT ORDER. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AND THE MATERIAL PLACED ON RECORD QUA THE ISSUE OF VALIDITY OF THE JURISDICTION OF THE ASSESSING OFFICER. HERE IN THIS CASE IT IS AN UNDISPUTED FACT THAT ASSESSEE WAS INCORPORATE D AND HAS A REGISTERED OFFICE AT NEW DELHI AND ALL THE ACTIVI TIES FROM WHICH ASSESSEE COMPANY WAS DERIVING RENTAL INCOME F ROM THE PROPERTIES SITUATED IN DELHI AND NCR AND THERE WAS NEVER ANY BUSINESS CONNECTION OR ESTABLISHMENT IN KOLKATA. SI NCE INCEPTION I.E. FROM THE ASSESSMENT YEAR 2005-06 THE I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 18 ASSESSEE HAS BEEN FILING THE RETURN OF INCOME AT TH E ADDRESS MENTIONED AT NEW DELHI WHICH IS EVIDENT FROM THE RE TURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2005-06 TO ASS ESSMENT YEAR 2014-15. FROM THE PERUSAL OF THE ACKNOWLEDGEME NT OF RETURN OF INCOME FOR ASSESSMENT YEARS 2005-06 AND 2 006-07 IT IS SEEN THAT ACKNOWLEDGMENT SEAL BEARS A STAMP O F ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-18 NE W DELHI. EVEN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 SHOWS THE ADDRESS OF NEW DELHI AND THE ACKNOWLEDGMENT SEAL ON THE RETURN OF INCOME BEARS T HE STAMP OF ITO WARD-18 NEW DELHI AND THE STAMP DATE IS 3 RD OCTOBER 2007. EVEN IN THE ASSESSMENT YEAR 2008-09 THE ACKNOWLEDGEMENT BEARS THE STAMP OF ITO WARD-18(2) NEW DELHI DATED 24 TH FEBRUARY 2009. FROM ASSESSMENT YEAR 2009-10 THE ASSESSEE HAS BEEN FILING THE RETURN OF INCOME ELECTRONICALLY AND DESIGNATION OF THE ASSESSING OFF ICER AS PER THE INCOME TAX DEPARTMENT SOFTWARE WHERE RETURNS AR E UPLOADED HAS MENTIONED THE JURISDICTION AS RANGE-1 8 NEW DELHI. THEREAFTER ALL THE RETURNS OF INCOME HAVE BE EN FILED ELECTRONICALLY UP TILL 2014-15 AND THE DESIGNATION OF THE ASSESSING OFFICER HAS ALWAYS BEEN SHOWN AS RANGE-18 NEW DELHI. 14. THE DEPARTMENTS CASE BEFORE US IS MAINLY THAT THE PAN DATA BASE SHOWS THAT THE PAN JURISDICTION WAS WITH W ARD- 10(2) KOLKATA AND IT WAS ONLY ON 01.07.2016 THE AS SESSEES CASE WAS TRANSFERRED FROM WARD-10(2) KOLKATA TO CI RCLE-27 DELHI. THUS PAN JURISDICTION ALL THROUGHOUT THESE Y EARS LIED I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 19 WITH ITO WARD-10 KOLKATA ONLY. FURTHER FROM THE PERUSAL OF THE DOCUMENT SUBMITTED BY THE LD. DR WHICH CONTAINS THE COPY OF RETURN OF INCOME FOR THE ASSESSMENT YEAR 20 07-08 WE FIND THAT THE ADDRESSED MENTIONED IN THE RETURN OF INCOME IS D-1108 NEW FRIENDS COLONY NEW DELHI 110065 . EVEN THE MANUAL COPY FILED BEFORE THE INCOME TAX DEPARTM ENT IT BEARS THE STAMP OF ITO WARD-10(2) NEW DELHI. THUS IT CANNOT BE HELD THAT AT ANY POINT OF TIME THE ASSESS EE HAS FILED RETURN OF INCOME IN KOLKATA SHOWING ITS JURISDICTIO N AT KOLKATA. NOT ONLY THAT IN ALL THE RETURNS OF INCOM E FILED BY THE LD. CIT-DR IN HIS PAPER BOOK SHOWS THE DESIGNATION OF THE ASSESSING OFFICER AS RANGE-18 NEW DELHI. NOW FOR T HE IMPUGNED ASSESSMENT YEAR 2012-13 WHEN THE ASSESSEE S CASE WAS SELECTED FOR SCRUTINY WHICH NOTICES U/S.143(2) WAS SENT BY ITO WARD-10(2) KOLKATA WHICH WAS RECEIVED BY T HE ASSESSEE ON 06.08.2013. THEN WITHIN A MONTH I.E. ON 29.08.2013 THE ASSESSEE FILED AN OBJECTION TO THE JURISDICTION OF THE ITO WARD-10(2) KOLKATA STATING THAT ASSESS EES JURISDICTION LIES WITH ASSESSING OFFICER RANGE-18 NEW DELHI. HOWEVER THE ASSESSING OFFICER VIDE HIS LETTER DATE D 03.09.2013 INTIMATED THAT JURISDICTION WOULD LIE WIT H HIM BECAUSE OF PAN. 15. IN TERMS OF SECTION 120 WHICH PRESCRIBES THAT THE CRITERIA FOR THE ALLOTMENT OF JURISDICTION OF INCOM E TAX AUTHORITY SHALL BE AS PER THE DIRECTIONS OF THE CBD T; AND FOUR CRITERIA HAVE BEEN LAID DOWN IN SUB SECTION (3) NAM ELY (A) TERRITORIAL AREA (B) PERSONS OF CLASSES OF PERSONS (C) INCOME OF I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 20 CLASSES OF INCOME AND (D) CASES OF CLASSES OF CASE S. SECTION 124 WHICH GOVERNS THE JURISDICTION OF THE ASSESSING OFFICER ALLOCATES JURISDICTION TO THE ASSESSING OFFICER AS PER THE DIRECTION OR ORDER ISSUED BY THE CBDT UNDER SECTION 120(2) & (1); AND SUB SECTION (2) OF 124 PROVIDES THAT WHER E A QUESTION ARISES WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY PERSON THEN THE QUESTION SHALL BE DETERMINED BY SENIOR AUTHORITIES LIKE PDG DG PCC CC OR PC. THESE ARE THE ONLY AUTHORITIES WHO CAN DECIDE THE JURISDICTION WHEN AN Y QUESTION IS RAISED. HERE INTHIS CASE THE ITO WARD-10(2) KOL KATA BEFORE WHOM THE ASSESSEE HAS RAISED OBJECTION WITHIN TIME PROVIDED U/S.124(3) HAS HIMSELF REJECTED THE OBJECTION WITHO UT REFERRING THE MATTER AS PER THE REQUIREMENT OF LAW ENSHRINED IN SUB SECTION (4) OF SECTION 124 WHICH PROVIDES THAT WHE RE ASSESSEE RAISES THE QUESTION OF JURISDICTION OF ASSE SSING OFFICER THEN ASSESSING OFFICER SHALL IF NOT SATISF IED WITH THE CORRECTNESS OF THE CLAIM REFER THE MATTER FOR DETER MINING UNDER SUB SECTION (2) BEFORE THE ASSESSMENT IS MADE I.E. BEFORE THE AUTHORITIES MENTIONED IN SUB SECTION (2) . THUS ITO WARD-10(2) COULD NOT HAVE DECIDED THE JURISDIC TION ON ITS OWN AT THAT TIME AND SHOULD HAVE IMMEDIATELY REFERR ED THE MATTER TO THE CONCERNED HIGHER AUTHORITIES. AS BROU GHT ON RECORD BY THE LD. CIT-DR ALMOST AFTER 16 MONTHS FR OM THE DATE WHEN ASSESSEE HAS FILED ITS OBJECTION REGARDIN G JURISDICTION OF THE ASSESSING OFFICER AT KOLKATA LD . DCIT CIRCLE-10 HAD REFERRED THE MATTER TO LD. PCIT TO DE CIDE THE ISSUE. AS PER THE MANDATE OF THE LAW AS PROVIDED U/ S. 124(2) I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 21 THE LD. PCIT WAS REQUIRED TO ADJUDICATE THE ISSUE O F JURISDICTION FIRST BEFORE ASKING THE ASSESSING OFFIC ER TO PROCEED WITH THE ASSESSMENT. HOWEVER INSTEAD OF DE CIDING THE ISSUE OF JURISDICTION LD. PCIT MERELY OPINED TH AT TRANSFER OF JURISDICTION WILL BE CONSIDERED AFTER THE COMPLET ION OF THE ASSESSMENT. SUCH AN INSTRUCTION IN OUR OPINION WAS NOT IN ACCORDANCE WITH LAW. FIRST OF ALL THE QUESTION OF JURISDICTION WHICH WAS RAISED BY THE ASSESSEE ON 29.08.2013 BEFO RE THE ITO WARD-10 KOLKATA AT THE VERY FIRST INSTANCE SH OULD HAVE BEEN REFERRED TO THE LD. PCIT TO DECIDE THE QUESTIO N OF JURISDICTION; AND SECONDLY EVEN IF THE MATTER WAS RE FERRED TO HIM BY LD. DCIT CIRCLE-10 ON 14.12.2014 THEN LD. P CIT WAS BOUND TO DECIDE THE ISSUE OF JURISDICTION FIRST BEF ORE DIRECTING THE ASSESSING OFFICER TO PASS THE ASSESSMENT. THE A SSESSING OFFICER CANNOT ON ITS OWN ASKED THE ASSESSEE TO MOV E AN APPLICATION U/S.127 FOR MIGRATION OF PAN BECAUSE T HE POWER OF TRANSFERRING THE CASE U/S.127 LIES WITH HIGHER AUTHORITIES. POWER U/S. 127 HAS BEEN GIVEN TO PDG/DG/PCC/CC/PCIT OR CIT TO TRANSFER THE CASE OF AN ASSESSEE FROM ONE JU RISDICTION TO OTHER UNDER VARIOUS CIRCUMSTANCES. HOWEVER WHEN ASSESSEE FILES AND RAISED THE QUESTION OF JURISDICTI ON BEFORE THE ASSESSING OFFICER THAT HE DOES NOT HAVE THE JUR ISDICTION OVER HIS CASE THEN ASSESSING OFFICER HAS NO OPTION BUT TO COMPLY WITH THE MANDATE OF LAW AS PROVIDED IN SUB S ECTION (2) OF SECTION 124. IF THE ID. PC IT INSTEAD OF DECIDIN G THE ISSUE OF JURISDICTION HAS SIMPLY INSTRUCTED THAT TRANSFER OF JURISDICTION WILL BE CONSIDERED AFTER THE COMPLETION OF ASSESSME NT IT I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 22 MEANS THAT HE ALSO UNDERSTOOD THAT ASSESSING OFFICE R KOLKATA DID NOT HAD THE JURISDICTION IN THE CASE OF THE ASSE SSEE OTHERWISE HE WOULD HAVE DECIDED THE QUESTION OF JURI SDICTION IMMEDIATELY IN THE MONTH OF DECEMBER 2014 AS FOUR MONTHS WAS STILL LEFT FOR THE LIMITATION PERIOD (I.E. 31 ST MARCH 2015). IF THE JURISDICTION OF THE ASSESSEE HAD ALWAYS BEEN IN RANGE- 18 NEW DELHI THEN HE HAS NOT REQUIRED TO MOVE AN APPLICATION FOR JURISDICTION OF CASE U/S.127 FROM KO LKATA TO DELHI AND IT WAS PCIT ALONE WHO SHOULD HAVE CONSIDE RED THE MATTER IN TERMS OF SECTION 124(2) AND 124(4). THUS IN OUR OPINION HERE IN THIS CASE WE FIND THAT THERE HAS BEEN A GROSS VIOLATION OF THE PROVISION OF SECTION 124(2) READ W ITH SUB SECTION 4 OF SECTION 124. 16. THE ENTIRE CASE OF THE REVENUE HINGES UPON THE INTERPRETATION THAT ALLOTMENT OF PAN IS THE CRITERI A AND FOUNDATION OF DECIDING THE JURISDICTION OF THE ASSE SSING OFFICER. HOWEVER NOWHERE IN THE STATUTE IT HAS BEE N PROVIDED THAT PAN ADDRESS WILL DECIDE THE TERRITORIAL JURISDI CTION OF THE ASSESSING OFFICER. SECTION 139A MERELY PROVIDES WHO ARE THE PERSONS REQUIRED TO OBTAIN PAN HAVING REGARD TO THE NATURE OF TRANSACTION OF BUSINESS AND OTHER CONDITIONS LAID D OWN THAT ASSESSING OFFICER MAY ALLOT A PAN AND OTHER PROCEDU RE AND MECHANISM OF ALLOTMENT OF THE PAN. THE TERRITORIAL JURISDICTION IS DECIDED BY THE CBDT IN TERMS OF SECTION 120 ONLY . HERE IN THIS CASE AS DISCUSSED ABOVE NONE OF THE PARAMETE RS LAID DOWN FOR THE TERRITORIAL JURISDICTION ARE APPLICABLE TO THE ASSESSEE. EVEN THE ASSESSING OFFICER OR THE LD. CIT (A) HAS NOT I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 23 MADE OUT ANY CASE THAT ASSESSEES CASE FALLS IN EIT HER OF THE GIVEN CATEGORIES PROVIDED IN SUB SECTION (3) OF SEC TION 120. ALLOTMENT OF A PAN FROM A PARTICULAR PLACE CANNOT P ROVIDE JURISDICTION TO THE ASSESSING OFFICER. THE JURISDICT ION OF THE ASSESSING OFFICER OVER AN ASSESSEE IS DECIDED BY TH E CBDT ON THE BASIS OF FROM WHERE THE ASSESSEE IS EITHER CARR YING THE BUSINESS IN THAT AREA ASSIGNED TO THE ASSESSING OFF ICER U/S.120 OR THE ASSESSEE IS RESIDING WITHIN THAT ARE A. ADMITTEDLY THE ASSESSEE COMPANY DOES NOT ONLY HAVE REGISTERED OFFICE IN NEW DELHI BUT ALSO HAS BEEN CA RRYING OUT ALL ITS ACTIVITIES FROM WHICH IT HAS BEEN EARNING I NCOME FROM NEW DELHI AND HAS BEEN FILING THE RETURN OF INCOME FROM NEW DELHI. EVEN IN THE SOFTWARE OF THE INCOME TAX DEPAR TMENT WHERE RETURN OF INCOME IS UPLOADED ONLINE THE DESI GNATION OF THE ASSESSING OFFICER AS PER THE ADDRESS HAS ALWAYS BEEN MENTIONED AS RANGE-18 NEW DELHI. HAD THERE BEEN TH E ALLOTMENT OF JURISDICTION BY VIRTUE OF PAN THEN THE SOFTWARE OF THE DEPARTMENT WOULD HAVE ASSIGNED THE JURISDICTION AS WHEN ASSESSEE UPLOADS THE RETURN OF INCOME ELECTRONICALL Y ONLINE. BE THAT AS IT MAY NOWHERE IN THE STATUTE IT HAS BE EN PROVIDED THAT ALLOTMENT OF A PAN WOULD BE THE DETERMINATIVE FACTOR FOR JURISDICTION OF THE ASSESSING OFFICER. THUS WE HOLD THAT ITO WARD-10(2)/DCIT CIRCLE-10(2) KOLKATA DID NOT HAVE ANY JURISDICTION OVER THE ASSESSEE COMPANY AND ANY ORDER PASSED WITHOUT JURISDICTION IS NULL AND VOID. ACCORDINGLY WE HOLD THAT THE IMPUGNED ASSESSMENT ORDER PASSED BY ASSESS ING OFFICER OF KOLKATA IS WITHOUT JURISDICTION AND HENC E THE SAME I.T.A. NO.6033/DEL/2016 & CO NO.11/DEL/2017 24 DESERVED TO BE QUASHED AS PER THE PROVISIONS OF LAW . ACCORDINGLY CROSS OBJECTION OF THE ASSESSEE IS ALL OWED. 17. SINCE WE HAVE ALREADY QUASHED THE ASSESSMENT THE GROUNDS RAISED IN THE REVENUES APPEAL ON MERITS ST ANDS DISMISSED. 18. IN THE RESULT THE REVENUES APPEAL IS DISMISSE D AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH 2021. SD/- SD/- [G. S. PANNU] [AMIT SHUKLA] [VICE PRESIDENT] JUDICIAL MEMBER DATED: 17 TH MARCH 2021 PKK: