ALLEPPEY FINANCIAL ENTERPRISES Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The appellant is a financier whose business premises were searched by the Income-tax Department on 6.1.1997. Even though appellant was an assessee before the Income Tax Officer, Ward II, Alleppey, file was sent to the Assistant Commissioner of Income Tax, Investigation circle, Kottayam for completing the block assessment pursuant to search under Section 158BC in terms of Annexure I notification which is issued by the Commissioner of Income Tax under Section 120 of the I.T. Act. From the very beginning appellant questioned the jurisdiction of the assessing officer to whom file is sent for assessment. Since he overruled the objection and made assessment, appeal was filed against the same. During the pendency of the appeal, Commissioner of Income tax suo motu revised the order issued under Section 158BC and directed revision of assessment, against which appellant filed appeal before the Tribunal. Before the Tribunal, the appellant questioned the jurisdiction of the Assistant Commissioner, Investigation Circle at Kottayam to make assessment after file was transferred to him by the appellant's assessing officer at Alleppey. The Tribunal negatived the appellant's plea against which this appeal is filed under Section 260A of the I.T. Act.

(2.) The only question raised before us is whether the Officer who passed the assessment order, namely, the Assistant Commissioner of Income tax, Investigation circle at Kottayam, has jurisdiction to complete the block assessment under Section 158BC of the Act. Counsel for the appellant referred to the decision of the Supreme Court in AJANTHA INDUSTRIES V. CENTRAL BOARD OF DIRECT TAXES, (1976) 102 I.T.R. 281 and contended that before transferring the file from one Officer to another under Section 127(1) of the Act, the assessee should be given a hearing. According to counsel, no hearing was given and the objections about his inconvenience of going to Kottayam to attend the assessment proceedings was ignored by the department when the file was in fact transferred from the Officer at Alleppey to the Assistant Commissioner of Income tax at Kottayam. Standing counsel appearing for the respondent has referred to Annexure I notification issued by the Commissioner of Income tax under Section 120 of the Act conferring exclusive jurisdiction for assessment of search cases from various Districts and Taluks in the State including the revenue District of Alleppey where from appellant's file was transferred on the Assistant Commissioner of Income tax, Investigation circle, Kottayam. On going through Annexure I dated 24.4.1991 we find that in exercise of delegated powers under Section 120 of the Act, the Commissioner of Income tax has notified the Asst. Commissioner of Income tax, Investigation Circle, Kottayam as Officer having exclusive jurisdiction to make assessment of search cases for various Taluks and revenue Districts including the revenue District of Alleppey. Admittedly appellant is hailing f rom Alleppey where there is no notified officer to make assessment of search cases. Going by Annexure I notification it is clear that jurisdiction for assessment of search cases from Alleppey District is exclusively conferred on the Officer at Kottayam who really made the appellant's assessment.

(3.) The next question to be considered is whether the shifting of file from the Officer before whom appellant was assessed at Alleppey to the assessing officer after search for making assessment under Section 158BC is a transfer of file as visualised under Section 127 of the Act. We are in agreement with the respondent's counsel's argument that this is not a case of transfer of file from one officer to another because the assessing officer before whom appellant was assessed, namely, ITO at Alleppey, ceased to have jurisdiction for making assessment under Section 158BC of the Act. Appellant has no case that the Officer before whom appellant was assessed until search had the authority to complete the block assessment under Section 158BC after search. In fact transfer of file arises from an Officer with jurisdiction to make assessment to another Officer also with jurisdiction to make assessment. However, when the Officer before whom appellant was assessed ceased to have jurisdiction and the assessment has to be made by another officer who has exclusive jurisdiction in the matter, it is only a matter of conveying the file by the officer who was making assessment until search to the officer who has jurisdiction to make assessment after search. All what has happened in this case is after search, ITO at Alleppey who ceased to have jurisdiction to make assessment after search conveyed the file to the officer who really is invested with power to make assessment under Annexure I notification. There is no choice for the department or the appellant to choose between the officers for assessment because there is only one officer who is designated as assessing officer to make assessment of search cases from Alleppey Dist. Therefore there was no need to consider objection against transfer of assessment file in this case and it is only a case of sending file to the only assessing officer who had jurisdiction to make assessment. Since we find that there is no transfer of file as visualised under Section 127(1) of the Act, there was no need to give any hearing to the appellant and therefore there is no violation of the principle laid down in the decision of the Supreme Court above referred.