Siddhartha Nautiyal ORDER
Waseem Ahmed, Member (A)
1. The captioned appeal has been filed at the instance of the assessee against the order of the Learned Commissioner of Income Tax-VI, Ahmedabad (in short "Ld. CIT(A)") arising in the matter of assessment order passed under s. 158BC of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 01.04.1985 to 31.03.1995 & 01.04.1995 to 21.12.1995.
2. The assessee has challenged the validity of the assessment framed under section 158BC read with section 254 of the Act on the ground that the same has been framed without proper jurisdiction.
3. At the time of hearing, the Ld.AR submitted that the jurisdiction over the assessee was vested with the Add.CIT/Jt.CIT Bhavnagar, Range-1, by virtue of the order bearing No. HQ-VI/6-4/1/Jurisdiction U/s 120/2001-02 dated 01/08/2001, placed on pages 181 to 184 of the Paper Book. But the assessment has been framed by the A.C.I.T Circle-1, Bhavnagar who holds much lower position in ranking than Add.CIT/Jt. CIT. Therefore, the assessment has been framed by ACIT circle-1 without having proper jurisdiction and consequently the assessment in dispute is not sustainable/maintainable. On the contrary, the Ld. DR before us vide letter dated 23-3-2023 submitted as under:
"2. In this case, the Hon'ble ITAT vide order in IT(SS)A Nos. 8 & (/RJT/2002 dated 11.07.2008 for the Block Period 01.04.1985 to 21.12.01995 had set aside and remitted the matter back to the AO to settle the matter of jurisdiction by referring the same to the Appropriate Authority, and thereafter make the assessment of the assessee. Following the direction, a reference was made by the ACIT Cir-1, Bhavnagar vide his letter F.No. ACIT/Cir-1/124/BAS/08-09 dated 03/02/2009 which was forwarded vide endorsement No.BR-l/Cent.BAS/2008-09/498 dated 10.02.09 of the Addl. CIT, Bhavnagar Range-1, Bhavnagar to the Commissioner of Income-tax, Ahmedabad-VI, Ahmedabad.
3. Vide order u/s. 124(4) of the I T Act dated 08.06.2009, the Commissioner of Income-tax, Ahmedabad -Vi, Ahmedabad has held that the jurisdiction over the assessee vests with the ACIT, Circle-1, Bhavnagar and the matter of jurisdiction was decided accordingly as per the directions contained in the order of Hon'ble ITAT. In the said order, the CIT-VI, Ahmedabad had categorically rebutted the objections of assessee that the order u/s. 120 dated 01.08.2001 excludes the cases transferred u/s. 127 of the IT Act from the operation thereof. The relevant para No. 8 & 9 of the order is reproduce here below for ready reference:
"8. The aforesaid submissions are not found acceptable as the assessee has not correctly appreciated the provisions of section 127 of the Act. Consequent upon the restructuring of the department, the post of erstwhile Assessing Officer i.e. DGT(asst), Special Range-8, Ahmedabad stood abolished and the present Assessing Officer, namely, ACIT, Circle-1, Bhavnagar was vested the territorial jurisdiction over the cases of the assessee as per the order u/s.120 dated 01.08.2001 passed by the CIT. Section 127 of the i.T. Act empowers the Commissioner to transfer a case from an Assessing Officer subordinate to him to another Assessing Officer. In the p case, since the post of the Assessing Officer i.e. DCIT(Asst.), Special R? Ahmedabad under CIT(Central) stood abolished as a result of the restructuring of the Department, no order u/s.127 was required to be passed by the CIT(Central) as it was not a case of transfer of jurisdiction of the assessee from an Assessing Officer under, his jurisdiction to another Assessing Officer. The Hon'ble Tribunal also in its said order dtd. 11.07,2008 has only observed that the provisions of Section 124(4) of the Act have not been complied with by the Assessing Officer and has accordingly remitted the matter back to the file of the AO for settling the matter of jurisdiction by referring the same to the Appropriate Authority. The assessee's contention that CIT (Central) was required to pass an order u/s, 127 for transferring the case from Bhavnagar to Ahmedabad is therefore not found tenable.
9. It may further be mentioned here that the provisions of Section 124(2) come into the picture when there is clash of jurisdiction i.e. when a question, arises whether a particular or another officer has the jurisdiction to assess a person. If the question is one relating to more than one area within the jurisdiction of one and the same Director-General or Chief Commissioner or Commissioner, the Director-General or Chief Commissioner or Commissioner shall determine which of the Officers shall have the jurisdiction to make such assessment. In the present case, the post of DC1T (Asstt.), Special Range-8, Ahmedabad stood abolished and the present Assessing Officer viz. ACIT, Circle-1, Bhavnagar came to acquire jurisdiction as per order u/s. 120 passed by the CIT, As such, there was no question regarding clash of jurisdiction between two Assessing Officers which could have been settled by referring the matter to the CIT or CCIT. As already stated, the present Assessing Officer i.e. ACIT, Circle-1, Bhavnagar was vested with the territorial jurisdiction over the case of the assessee as per the aforesaid order u/s. 120 dtd, 01.08.2001. The present Assessing Officer i.e. ACIT, Circle-1, Bhavnagar has therefore rightly exercised the jurisdiction over the said case. A reference in this regard may also be made to the provisions of Section 124(5) of the Act. It may be emphasized here that the said Section 124(5) opens with a non- obstante clause "notwithstanding anything contained in this Section or in any direction or order issued under section 120"
The certified true copy of the said order of the Commissioner of Income-tax, Ahmedabad- VI, Ahmedabad is enclosed herewith for kind perusal and necessary action."
4. We have heard the rival contentions of both the parties and perused the materials available on record. The controversy in the present case is limited to decide which authority of income tax whether Additional CIT/ Joint CIT Range-1 or ACIT Circle-1 has jurisdiction over the assessee for the block period in dispute so as to frame the assessment. According to the learned DR the jurisdiction over the assessee lies with the ACIT Circle-1. The basis of the argument of the learned DR was the order passed by the Commissioner of Income Tax Ahmedabad-VI vide letter dated 8-6-2009 wherein it was clarified that the jurisdiction lies with the ACIT circle 1. On perusal of the order of the Commissioner of Income Tax Ahmedabad-VI, we note that the reference has been made by the Commissioner of Income Tax to the order passed under section 120 of the Act dated 1 August 2001. Thus, the entire basis of the revenue to hold the jurisdiction over the assessee of ACIT circle 1 was the order passed under section 120 of the Act dated 1 August 2001. We have perused such order, placed on pages 181 of the paper book along with the schedule and find that the jurisdiction lies with the additional/ joint Commissioner of Income Tax range 1. The relevant extract relating to the jurisdiction is placed on page 183 of the paper book. Thus, there remains no ambiguity to the fact that the jurisdiction was vested with the additional/ joint Commissioner of Income Tax range-1 for framing the assessment for the block period in dispute whereas the assessment has been framed by the ACIT circle 1. It is the trite law that the person who has been authorized to frame the assessment can only do the same. In the present case, the assessment framed by the authority without having valid jurisdiction. Accordingly, we hold that the assessment framed by the AO in the given case is not maintainable and sustainable. Accordingly, we quash the same. Hence, the ground of appeal of the assessee is hereby allowed.
5. As the assessee has succeeded on the technical issue discussed above, we are not inclined to decide the other contentions raised by the assessee challenging the validity of the assessment at the time of hearing.
6. Furthermore, once we have held that the assessment framed in dispute is not sustainable as the same has been made by the person having no jurisdiction over the assessee, we are not inclined to adjudicate the issue raised by the assessee on merit. Accordingly, we dismiss the same as infructuous.
7. In the result, the appeal filed by the assessee is partly allowed.
Order pronounced in the Court on 12/06/2023 at Ahmedabad
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