• Mar
  • 31
  • 2013

Jurisdiction of ITAT depends upon location of office of AO passing the order

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ITAT LUCKNOW BENCH ‘A’

Assistant Commissioner of Income-tax

versus

Smt. Lata Jain

Income Tax  Appeal Nos. 742 & 743 (Lkw.) of 2011
[ASSESSMENT YEARS 2006-07 & 2007-08]

Date of Pronouncement – 03.07.2012

ORDER

Sunil Kumar Yadav, Judicial Member

These appeals are preferred by the Revenue against the respective order of the ld. CIT(A) on various grounds.

2. During the course of hearing of the appeals, the ld. counsel for the assessee has moved an application raising a preliminary objection with regard to the jurisdiction of this Bench of the Tribunal to hear these appeals.

3. The ld. counsel for the assessee has submitted that the assessment was framed by the Assessing Officer, ACIT, Central Circle-2, New Delhi and the first appellate order was passed by the ld. CIT(A)-III, Laxmi Nagar, Delhi. The ld. counsel for the assessee further submitted that the jurisdiction of the Tribunal depends upon the location of the office of the Assessing Officer and not the place of business or residence of the assessee as per the standing orders under Income-tax (Appellate Tribunal) Rules, 1963. Since the office of the Assessing Officer who has passed the assessment orders is situated within the jurisdiction of ITAT, Delhi Benches, the appeals in these cases should have been filed before the Delhi Benches of the Tribunal and not before the Lucknow Benches of the Tribunal. In support of his contention, the ld. counsel for the assessee has placed reliance upon the judgment of Hon’ble Delhi High Court in the case of Seth Banarsi Dass Gupta v. CIT [1978] 113 ITR 817 (Delhi) and the judgment of Hon’ble Punjab & Haryana High Court in the case of CIT v. Motorola India Ltd. [2010] 326 ITR 156, in which their Lordships have held that the jurisdiction of the High Court depends upon the location of the Assessing Officer.

4. The ld. D.R., on the other hand, has submitted that the jurisdiction of the Assessing Officer over the assessee was transferred by the ld. Commissioner of Income-tax under section 127(2) of the Act vide his order dated 12.8.2011 from Delhi to Kanpur and the Assessing Officer at Kanpur falls within the jurisdiction of Lucknow Benches of the Tribunal. Since the appeals were filed on 19.12.2011 after transferring the jurisdiction of the Assessing Officer from Delhi to Kanpur, the appeals were rightly filed before the Lucknow Benches of the Tribunal and the Lucknow Benches of the Tribunal have the jurisdiction over the assessee and is quite competent to adjudicate these appeals.

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 his 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 Kanpur 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 26.8.2011 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:-

“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 Digvijay 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 Assessing 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 over 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 was 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 Delhi. 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 Tribunal 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 High Court in the case of 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 the Act. The relevant observations of the High Court are extracted hereunder:-

“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 or more Assessing Officers subordinate to him to any other Assessing Officer. It also deals with the procedure 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 in 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 after 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 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 the Delhi Benches of the Tribunal in accordance with law.

9. In the result, both the appeals of the Revenue are dismissed.


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