High Court Of Gauhati
CIT vs. Narendra Narayan Banik
Section 2(9A), 117, 158BC, 158BG
Ranjan Gogoi & H.N. Sarma, JJ.
IT Appeal No. 10 of 2006
7th August, 2009
Counsel Appeared :
U. Bhuyan, for the Appellant : D. Senapati & V.K. Bhatra, for the Respondents
JUDGMENT
Ranjan Gogoi, J. :
All these appeals being directed against common orders founded on identical grounds, were taken up for consideration together and are being disposed of by the present common judgment and order.
2. The assessments of the respondent-assessees in each of the appeals were completed by the AO under the provisions of Chapter XIV-B of the IT Act, 1961 (hereinafter referred to as “the Act”). Suo motu proceedings under s. 263 of the Act were initiated by the CIT in respect of the aforesaid assessments. While the proceedings were pending the assessees had filed appeals against the assessment orders passed by the primary authority. By different orders the CIT interfered with each of the assessment orders in exercise of powers under s. 263 of the Act. Thereafter, the appeals filed by the assessees were closed as infructuous by separate orders passed. Aggrieved, the respondent-assessees instituted Appeal Nos. 2, 3, 9 and 10 (Gau) of 2004 against the orders passed under s. 263 of the Act as well as Appeal Nos. 68 and 69 (Gau) of 2004 against some of the orders disposing of the appeals against the assessment orders as infructuous. Insofar as the present appeals are concerned, the Court would have to deal with three separate but identical orders, each dt. 15th Sept., 2005, passed by the learned Tribunal, Gauhati Bench allowing the appeals filed by the respondent-assessees before the learned Tribunal. A reading of the impugned orders dt. 15th Sept., 2005 indicates that the learned Tribunal came to the conclusion that as the AO, one Sri Dibyendu Kumar Deb, was promoted as Asstt. CIT on 7th Nov., 2001, the original assessment orders passed by him were so passed when the incumbent was holding the post of ITO. As under s. 158BG of the Act, assessment in block cases is to be finalised by an officer not below the rank of Asstt. CIT, the learned Tribunal held each of the initial orders of assessment to be null and void. Accordingly, the appeals filed by the assessees were allowed by the learned Tribunal. Aggrieved, the Revenue is before this Court.
We have heard Sri U. Bhuyan, learned standing counsel, the IT Department appearing on behalf of the appellants and Sri D. Senapati and Sri V.K. Bhatra, learned counsel for the respondentassessees. Sri Bhuyan, learned counsel for the appellants has drawn the attention of the Court to the fact that by the order dt. 8th July, 1999, by which the AO Sri Dibyendu Kumar Deb was transferred from Shillong to Silchar, he was also allowed to hold the charge of the office of the Asstt. CIT, Investigation Circle, Silchar in addition to his own duties. Sri Bhuyan has, therefore, urged that on the date when the assessment orders were passed the AO was holding charge of the office of the Asstt. CIT and, therefore, was competent to finalise the assessments in question. Sri Bhuyan has further submitted that the aforesaid fact, in spite of being on record, was overlooked and/or ignored by the learned Tribunal. Placing reliance on a judgment of the apex Court in the case of Pushpadevi M. Jatia vs. M.L. Wadhawan, Addl. Secretary, Government of India (1987) 3 SCC 367, Sri Bhuyan has submitted that the AO having been allowed to hold the charge of the office of the Asstt. CIT was competent to exercise the powers vested in the said office and, therefore, the assessment orders passed by the said officer are in conformity with the requirements of s. 158BG of the Act. In this regard, reliance has been placed by Sri Bhuyan on the observation of the apex Court in para 21 of the judgment in Pushpadevi M. Jatia vs. M.L. Wadhawan, Addl. Secretary, Government of India (supra), the details of which will be noticed in a subsequent part of this order. Controverting the submissions advanced on behalf of the appellants, the learned counsel for the respondent-assessees have placed before this Court the provisions contained in s. 2(9A) of the Act which define the Asstt. CIT in the following terms : “(9A) ‘Asstt. CIT’ means a person appointed to be an Asstt. CIT or a Dy. CIT under sub-s. (1) of s. 117.” Thereafter, the learned counsel have referred to the provisions contained in ss. 116 and 117 of the Act. It is the submission of the learned counsel for the respondents that the power to appoint an Asstt. CIT is vested in the Central Government by s. 117(1) of the Act and exercise of powers of the office of the Asstt. CIT by the AO, in the instant case, was without any appointment by the Central Government, as required. It is, therefore, contended that the AO was not legally competent to finalise the assessments for the block period. Jurisdiction having been exercised without authority of law, the assessment orders are a nullity, it is argued.
7. The rival submissions advanced on behalf of the parties have received the due and anxious consideration of the Court. In the present cases, materials had been brought on record on behalf of the Department to show that the AO, namely, Sri Dibyendu Kumar Deb, at the time of his transfer from Shillong to Silchar by the order dt. 8th July, 1999, had been appointed by the CIT to hold the charge of the office of the Asstt. CIT, Investigation Circle, Silchar in addition to his own duties. What would be the effect of the said order is a matter that did not receive consideration of the learned Tribunal. Ordinarily and in the normal course the failure to consider the aforesaid aspect of the matter should have resulted in an order of remand to the learned Tribunal for a de novo consideration of the question. However, as the question arising is a pure question of law, we are of the view that there is no impediment in a final determination of the said question by us in the present appeal proceedings.
8. In Pushpadevi M. Jatia (supra), the apex Court in para 21 of the judgment had laid down, though in the context of an order of preventive detention, that : “Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognized as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.” In this regard, reliance was also placed by the apex Court in one of its earlier decisions in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132.
9. In the present cases, the CIT, who is one of the delegates mentioned in s. 117(2) of the Act to exercise powers of appointment of the IT authorities below the rank of Asstt. CIT or Dy. CIT, had made an officiating arrangement vesting the powers of the Asstt. CIT in the AO, Sri Dibyendu Kumar Deb. The AO was regularly promoted to the post of Asstt. CIT on 7th Nov., 2001, by orders made in the name of the President. For a period of over two years the AO had exercised the powers of the Asstt. CIT. Though a feeble attempt has been made by the learned counsel for the respondent-assessees to question the competence of the CIT to make such an officiating arrangement, nothing has been brought on record to show that the CIT was incompetent to make such an arrangement. In fact, the specific pleadings of the Department before the learned Tribunal in this regard had not even been controverted by the respondent-assessees. The CIT is an authority who is entrusted with the duty and responsibility to ensure the smooth conduct of work in his Commissionerate. The promotion order of the AO dt. 7th Nov., 2001, indicates that over 900 persons had been promoted, at one time, from the post of ITO to that of Asstt. CIT. Naturally, the process would have taken time. In such a situation, there would be hardly any justification to deny the Head of the Commissionerate the power and competence to making an officiating arrangement by vesting certain powers in an officer in addition to the normal powers to be exercised by such an officer. This is perhaps the necessity and public policy that has been referred to by the apex Court in Pushpadevi M. Jatia (supra). Any other view would be a retrograde step having the potential of causing serious disruptions and imbalances in the administration, which the Court must avoid. There can, therefore, be no manner of doubt that the AO was competent in law to make the initial block assessments and the finding to the contrary recorded by the learned Tribunal, that too, by overlooking the materials available on record, is not legally sustainable.
10. We have noticed that in support of the challenge made in the appeals before the learned Tribunal several other issues on the merits were raised by the assessees. None of the aforesaid issues had been gone into by the learned Tribunal. This is on account of the fact that the learned Tribunal found fault with the exercise of jurisdiction by the AO. Now that we have held the AO to be legally competent to make the assessments in question, it will be necessary for the learned Tribunal to consider the other grounds of challenge raised in Appeal Nos. 2, 3, 9 and 10 (Gau) of 2004. Thereafter, depending on the conclusion that may be reached, the learned Tribunal shall consider the grounds urged in the other two appeals filed by the assessees, i.e., Appeal Nos. 68 and 69 (Gau) of 2004.
11. Accordingly and for the reasons stated above, we set aside the orders dt. 15th Sept., 2005, passed by the learned Tribunal, Gauhati Bench in Appeal Nos. 2, 3, 9 and 10 (Gau) of 2004 as well as in Appeal Nos. 68 and 69 (Gau) of 2004 and remit the matter back to the learned Tribunal for fresh disposal after hearing the parties and in accordance with law as well as the directions contained in the present order.
12. All the appeals filed by the
[Citation : 320 ITR 436]
