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2005 (3) TMI 418 - ITAT LUCKNOW-AValidity of the assessment - Jurisdiction of Income-tax authorities - petition u/s 144A - Whether there exists any such direction/notification issued by the "Board" which can be said to be giving the Jt. CIT, Range 6, Kanpur, the jurisdiction and the ‘authority’ to act as AO and pass assessment order in his ‘Range’ in general or in the case of the present assessee in particular ? - Addl. CIT can be said to be covered by the inclusive definition of "Jt. CIT" as contained in s. 2(28C) of the Act? - HELD THAT:- The appellant’s case that the regular assessment order dt. 10th Feb., 2003, as passed by the Addl. CIT, Range 6, Kanpur is without jurisdiction also gets full support from the scheme as envisaged in s. 144A, which had been specifically invoked by it (the appellant) to seek instructions for the ACIT, Range 6, Kanpur who had been conducting the assessment proceedings in this case although and who had even issued a ‘draft’ assessment order. It is evident from the said section that after the machinery of s. 144A is placed in motion, either at the initiative of the Jt. CIT or on a reference being made by the AO or on an application made by the assessee, such Addl. CIT/Jt. CIT has been left only with two options, either he may take a view that no instructions need be given for the guidance of the AO, or instructions need be given. In the later case, if he is of the opinion that instruction adverse to the assessee need be given then be again owes a statutory duly to give the assessee an opportunity of being heard. Nowhere it is envisaged, even by implication, that the Jt. CIT can adopt a third course and intimate the assessee that he himself would be stepping into the ‘authority’ of the "AO" and finalize the ‘regular assessment order’ under his own signatures, as has been done here. This will be an act of "transgression of authority" which cannot be permitted. Therefore, we hold that after the proceedings u/s 144A get initiated under any of the three situations as discussed, the Jt. CIT himself cannot act as AO and pass an assessment order under his own signatures. Naturally, such a situation, presupposes existence of two separate and distinct "authorities", one who gives instructions and two, who receives the directions and implements the same strictly as such directions are of binding nature. Interestingly enough, s. 144A as has been reproduced by us above, gives an example, where the term "Jt. CIT" shall include "Addl. CIT" also. As it is, the "authority" designated for the purposes of proceedings u/s 144A is "Jt. CIT" which has been designated as an "IT authority’ by virtue of insertion of cl. (cca) in s. 116 of the Act w.e.f. 1st Oct., 1998, only. Can it mean that after the date, recourse to s. 144A will not be permissible in such "ranges" where the same are in the charge of the authority designated as "Addl. CIT". The answer would be in the negation as no such discrimination has been made in the statute. Therefore, to make the provisions of s. 144A effective and workable one can fall back to the interpretation clause of s. 2(28C) where it has been mentioned that "Jt. CIT" includes "Addl. CIT" also. We hasten to add that such an interpretation clause shall not be applicable, in the context of s. 2(7A) where the term is qualified as "such Jt. CIT........" This is an additional reason which is available in support of our conclusion that the ‘Addl. CIT, Range 6, Kanpur’ did not have the ‘authority’ to exercise the powers and perform the functions of an ‘AO’ and the assessment order dt. 10th Feb., 2003, as passed by him in this case, is bad-in-law. Accordingly, we hold that the assessment order dt. 10th Feb., 2003, passed by the Addl. CIT Range-6, Kanpur in the present case is wholly without jurisdiction and consequently such assessment order is not enforceable in law. The assessment order is, therefore, quashed, as being without jurisdiction. Since the primary issue about the very validity of the assessment order has been decided in favour of the assessee, we do not consider it necessary to deal with other issues which relate to the merits of the addition made in the assessment. In the result, the appeal directed by the assessee is allowed.
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