Tata Communications Ltd vs. Addl CIT (ITAT Mumbai)
S. 2(7A)/ 120(4): Though, by virtue
of the retrospective amendment to s. 2(7A), the Addl CIT is an "Assessing
Officer", he can act as such only if there is a notification issued by the
CBDT u/s 120(4)(b) or if there is an order u/s 127 transferring jurisdiction
from the DCIT to the Addl CIT. In the absence of either, the assessment order
is without jurisdiction and has to be quashed as null and void. The fact that
the assessee co-operated is irrelevant because there is no estoppel. The
argument of the Dept that as the order is passed by a higher officer, there is
no prejudice to the assessee is not acceptable. The matter also cannot be
remanded back (All imp judgements referred)
In view of the legal discussion made
above and facts of the case, it is clear that impugned assessment order has
been passed without authority of law in as much as Revenue has not been able to
demonstrate that the Additional Commissioner of Income tax who had passed the
assessment order had valid authority to perform and exercise the powers and
functions of an Assessing Officer of the assessee and to pass the impugned
assessment order. Under these circumstances, we have no other option but to
hold the same as nullity and, therefore, the impugned assessment order is
quashed having been passed with out authority of law
Volvo Group India Pvt. Ltd vs. DCIT (ITAT Bangalore)
Recovery of Tax u/s 220(6)/ 245: (i)
The term “recovery” is comprehensive and includes adjustment thereby reducing
the demand; (ii) It will be specious & illogical for the Revenue to contend
that if an issue is decided in favour of the assessee giving rise to a refund
in an earlier year, that refund can be adjusted u/s 245, on account of the
demand on the same issue in a subsequent year (iii) The decisions of CIT(A)
& Tribunal in favour of the assessee should not be ignored, (iv) Income-tax
officials are officers of the State and the Law requires that they perform
their duties with utmost objectivity and fairness, while keeping in mind the
sanctity of the role and function assigned to them which at times requires
tough steps (Maruti Suzuki Ltd 347 ITR 47 (Del) followed)
It is wrong to say that an
adjustment of refund u/s 245 is not a “recovery” only on the ground that s. 245
is placed in the Chapter of “Refunds”. The term “recovery” is comprehensive and
includes adjustment thereby reducing the demand. In Circular No. 1914 dated
2.12.1993, even the CBDT did not regard ‘recovery’ as excluding ‘adjustment’
u/s 245. However, different parameters may apply in considering a request for
stay against coercive measures to recover the demand and a stay against refund
adjustment. It is permissible for the authority to direct stay of recovery by
coercive methods but not grant stay of adjustment of refund
JDC Traders Pvt. Ltd vs. DCIT (ITAT Delhi)
S. 147/ 154: The AO cannot, after
conclusion of proceedings u/s 147, take aid of Explanation 3 to S. 147 to make
any addition u/s 154. If the Dept's argument is accepted that u/s 154 the AO is
empowered to deal with escapement of income even after the s. 147 assessment is
completed, it would empower the AO to go on making one addition after the other
by taking shelter of Explanation 3 to S. 147 endlessly. Such a course is not
permissible
If we accept the argument of the
learned DR that u/s 154 of the Act, ld. AO is empowered to deal with the
escapement of income in respect of which the reasons were not recorded even
after the assessment reopened under section 147 of the Act is completed, it
would empower the ld. AO to go on making one addition after the other by taking
shelter of Explanation 3 to Section 147 endlessly. Such a course is not
permissible. Power that is available to the ld.AO under Explanation 3 to
Section 147 of the Act, in our considered opinion, is not available to him u/s
154 of the Act, which obviously came to be exercised by the ld. AO after the
conclusion of the proceedings u/s 147 of the Act
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