ACIT Circle-1, Ghaziabad V. Globus Constructions Pvt Ltd, Noida

ITA 1185/DEL/2020

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 8677 (ITAT-DELHI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 16-06-2020

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 1185/DEL./2020, A.Y. : 2015-16 ACIT, VS. GLOBUS CONST RUCTION PVT. LTD. CIRCLE-1, NOIDA. GHAZIABAD (PAN : AAECG8128L) (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : SH. SH. ROHIT TIWARI, SH. MOHAN KALRA, ADV. ITA NO. 6614/DEL./2019, A.Y. : 2009-10 ITO, WARD-2(4), VS. PRAVEEN BIDHURI NOIDA. NEW DELHI. (PAN : AJOPB1460C) (APPELLANT) (RESPONDE NT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : SH. PRAVEEN BIDHURI, ASSESSEE FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 2 ITA NO. 1228/DEL./2020, A.Y. : 2010-11 ITO, WARD-2(3), OMPRAKASH SHARMA, NOIDA. VS. GB NAGAR. (PAN : ATYPP8017D) (APPELLANT) (RESPONDE NT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : NONE ITA NO. 1187/DEL./2020, A.Y. : 2010-11 ITO, WARD-3(3), VS. SANDEEP KUMAR A GGARWAL, NOIDA. NOIDA.. (PAN : AGNPA1430H) (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : NONE ITA NO. 1179/DEL./2020, A.Y. : 2010-11 ITO, WARD-1(5), JAIVEER SINGH, NOIDA. VS. GB NAGAR. (PAN : BESPS4506L) (APPELLANT) (RESPONDE NT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : NONE FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 3 C.O. NO.- 49/DEL/2020, A.Y. 2010-11 (ARISING OUT OF ITA NO. 1146/DEL./2020) ITO, VS. JAHANGIR AL AM WARD-1(5), NOIDA NOIDA (PAN : AMXPA9467A) (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : NONE ITA NO. 6945/DEL./2019 A.Y. : 2009-10 DHARAM SINGH, VS. ITO, GHAZIABAD. WARD-1(2), GHAZIABAD. (PAN : EKEPS6792D) (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL AND SH. RAVI PRAKASH , ASSESSEE BY : NONE C.O. NO. -152/DEL/2019, (ARISING OUT OF ITA NO. 6945/DEL./2019) A.Y. : 2009-10 ITO, VS. DHARAM SINGH, WARD-1(2), GH AZIABAD. GHAZIABAD. (PAN : EKEPS6792D) (APPELLANT) (RESPONDENT) FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 4 ITA NO. 6823/DEL./2019, A.Y. : 2015-16 ITO, VS. RAMA GUPTA, WARD-2(2). GHAZIABAD. GHAZIABAD. (PAN : ACHPG6302Q) (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, SR. STADING COUNSEL SH. RAVI PRAKASH ASSESSEE BY : SH. AKHILESH KUMAR , ADVOCATE ITA NO. 6837/DEL./2019, A.Y. : 2015-16 ITO, VS. VIKAS MITTAL, WARD-2(5). GHAZIABAD. GHAZIABAD. (PAN : AKKPM6751A (APPELLANT) (RESPONDENT) REVENUE BY : SH. ZOIB HUSSAIN, DR ASSESSEE BY : SH. AKHILESH KUMAR , ADVOCATE DATE OF HEARING : 16.12.2020 DATE OF ORDER : 08.01.202 1 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : FOR THE SAKE OF BREVITY, AFORESAID APPEALS AND CROS S OBJECTIONS BEARING IDENTICAL QUESTION OF FACTS AND LAW ARE BEING DISPOSED OF BY WAY OF COMPOSITE ORDER. 2. APPELLANTS DHARAM SINGH, CROSS OBJECTOR JAHAGIR ALAM AND APPELLANT (INCOME TAX OFFICER, WARD-2(3), NOIDA) BY FILING FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 5 AFORESAID APPEALS AND CROSS OBJECTIONS SOUGHT TO SE T ASIDE THE IMPUGNED ORDERS ALL DATED 31.12.2018 PASSED BY SH. S.K. SRIVASTAVA LD.CIT(A)1, NOIDA ON THE IDENTICAL GROUN DS INTER ALIA THAT :- 1. BECAUSE SH. S.K. SRIVASTAVA, THE THEN CIT(A)-1, NOIDA HAD BEEN COMPULSORILY RETIRED BY THE GOVERNME NT OF INDIA WITH EFFECT FROM 11.06.2019 AND ACCORDINGLY, HE HAD BECOME FUNCTUS OFFICIO W.E.F. 11.06.2019. ACCORDINGLY, ANY DISCHARGE OF FUNCTION BY AN OFFICE R WHO HAS BECOME FUNCTUS OFFICIO IS A NULLITY IN LAW AND WITHOUT JURISDICTION. 2. IN THIS REGARD, RELIANCE IS PLACED ON THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF RUDRAGOUDA V. THE UNIVERSITY OF AGRICULTURAL SCIENCES AND ORS., WRIT PETITION NO. 31734/2016 (S- RES), WHEREIN IT WAS HELD THAT: - 'THE PETITIONER/OFFICER AFTER HIS RETIREMENT BECOME S FUNCTUS OFFICIO. NO OFFICER CAN CONTINUE TO DISCHARGE HIS FUNCTIONS SUBSEQUENT TO HIS RETIREMENT AND MORE PARTICULARLY, TO TAKE ACTION AGAINST THE SUBORDINAT E OFFICER OR TO SEEK SUCL DIRECTION FROM THIS COURT' (EMPHASIS ADDED) IT IS TO BE NOTED THAT THE TERM FUNCTUS OFFICIO HAS BEEN DEFINED TO MEAN THE FOLLOWING: - BLACK'S LAW DICTIONARY I'SIXTH EDITION PAGE 6731 GI VES ITS MEANING AS FOLLOWS: HAVING FULFILLED THE FUNCTION, DISCHARGED THE OFFICE, OR ACCOMPLISHED THE PURPOSE . AND THEREFORE, OF NO FURTHER FORCE OR AUTHORITY. ACCORDINGLY, IT IS SUBMITTED THAT ONCE THE THEN CIT (A)- NOIDA HAS BEEN COMPULSORILY RETIRED I.E., WITH EFFE CT FROM 11.06.2019, ANY ORDER PRIMA FACIE PASSED BY HIM OR ACTED UPON BY HIM AFTER THE DATE OF HIS COMPULSORY RETIRE MENT IS WITHOUT JURISDICTION. 3. BECAUSE A VIGILANCE INSPECTION FOR THE WORK CARRIED OUT BY SH. SANJAY KUMAR SRIVASTAVA IRS (RETD.),WHO WAS POSTED TO AS CIT(A)-1 NOIDA WITH TH E ADDITIONAL CHARGE OF CIT(A)-2 NOIDA, PRIOR TO HIS COMPULSORY RETIREMENT W.E.F 11.06.2019 WAS CONDUCTED ON 19.06.2019 BY THE VIGILANCE TEAM OF INCOME TAX FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 6 (VIGILANCE), WHICH REVEALED THAT ORDERS PURPORTED T O HAVE BEEN PASSED BY SH. SRIVASTAVA IN THE MONTH OF DECEMBER, 2018 WERE PRIMA-FACIE PASSED IN THE MONTH OF JUNE, 2019. IN MAJORITY OF THESE ORDERS LIABLE TO HAVE BEEN UPLOADED ON THE ITBA SYSTEM WERE UPLOADED BETWEEN 11 TH JUNE TO 13 TH JUNE, 2019, I.E. AFTER HIS DEMITTING THE OFFICE, AS PER THE CHARGE SHEET FILED BY THE CBI. AS PER THE CBI'S CHARGE SHEET THERE ARE ALSO INDICATIONS OF FALSIFICATION OF RECORDS TO ALLUDE T OWARDS DISPATCH OF THESE ORDERS ON 7TH JUNE, 2019, WHEREAS THEY WERE DISPATCHED ON 14TH JUNE, 2019 IT WAS FURTHER REVEALED THAT 104 ORDERS WERE CLAIMED TO BE PASSED BY SH. S.K. SRIVASTAVA DURING DECEMBER, 2018,HOWEVER, MANY OF THEM WERE UPLOADED TO THE CENTRAL SERVER US ING HIS RSA TOKEN ONLY AFTER HIS RETIREMENT. 4. BECAUSE LD. CIT(A)-1, NOIDA HAS COMMITTED A JURISDICTIONAL ERROR BY DECIDING THE APPEAL BEYOND FIFTEEN DAYS OF THE LAST HEARING IN CONTRAVENTION OF INSTRU CTION NO. 20/2003 DATED 23.12.2003 ISSUED BY THE CBDT AND THE ORDER WAS UPLOADED ON THE ITBA AFTER AN INORDIN ATE DELAY OF TIME, AS IT WAS UPLOADED AFTER HE WAS COMPULSORILY RETIRED UNDER PROVISIONS OF FUNDAMENTA L RULES (FR) 56(J). 5. BECAUSE THE ORDER OF THE CIT(A)-1, NOIDA, BEING A NULLITY IN THE EYES OF LAW, MAY BE SET ASIDE FOR FR ESH ADJUDICATION TO THE JURISDICTIONAL LD. CIT(A), NOID A. 6. BECAUSE, IT IS IMMATERIAL WHETHER AN ORDER PASSED WITHOUT JURISDICTION IS IN FAVOUR OF REVENUE OR AGA INST IT. SUCH AN ORDER IS CONTRARY TO THE ADMINISTRATION OF THE INCOME TAX ACT AND IT POLLUTES THE STREAMS OF JUST ICE. THEREFORE, REVENUE WOULD BE AN AGGRIEVED PARTY IF A COMMISSIONER OF INCOME TAX (APPEALS) PASSES AN ORDE R WITHOUT JURISDICTION AND IT IS IN INTEREST OF THE R EVENUE AS WELL AS TAX ADMINISTRATION TO ENSURE THAT ORDERS AR E PASSED B} CORRECT LEGAL AUTHORITY UNDER THE ACT. 7. BECAUSE THE REVENUE BEING 'STATE' CANNOT BE A BENEFICIARY OF AN ORDER PASSED WITHOUT JURISDICTION BY AN APPELLATE COMMISSIONER AND THEREFORE IT IS ABSOLUTE LY IMMATERIAL ULTIMATELY THE CASE WAS DECIDED IN FAVOU R OF THE REVENUE BY THE APPELLATE COMMISSIONER ALBEIT WITHOUT JURISDICTION. 8. BECAUSE ANY ORDERS, INSTRUCTIONS OR DIRECTION S ISSUED UNDER SECTION 268A(1) BY THE BOARD TO OTHER INCOME TAX AUTHORITIES FOR FIXING MONETARY LIMITS WOULD NOT AP PLY TO ORDERS PASSED WITHOUT JURISDICTION WHEN THE OFFICER FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 7 HIMSELF HAD NO JURISDICTION TO GRANT RELIEF OR PASS ANY ORDER WHATSOEVER. 9. BECAUSE THE MONETARY LIMITS FIXED PURSUANT TO SECTION 268A WILL ONLY APPLY TO ORDERS PASSED BY AUTHORITIES WITH JURISDICTION AND NOT TO AUTHORITIE S WITHOUT JURISDICTION. SECTION 268A(1) OF THE ACT RE ADS AS FOLLOWS: - 'SECTION 268A. (1) THE BOARD MAY, FROM TIME TO TIME , ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILI NG OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME-T AX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER' 10. THE REVENUECRAVES LEAVE TO MODIFY ANY OF TH E GROUNDS ABOVE AND/OR TO ADD ANY FRESH GROUND OR GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. NOTICES TO THE RESPONDENTS WERE SENT THROUGH REV ENUE DEPARTMENT AND WERE DULY SERVED. SH. PRAVEEN BIDHUR I ASSESSEE APPEARED IN PERSON IN ITA NO. 6614/DEL/2019, SH. ROHIT TIWARI AND MOHAN KALRA, ADVOCATE APPEARED IN ITA NO. 118 5/DEL/2020 AND SH. AKHILESH KUMAR, ADVOCATE APPEARED IN ITANO.6823/DEL/2019 AND 6837/DEL/2019 AND IN REST O F THE APPEALS NONE APPEARED ON BEHALF OF THE RESPONDENT / ASSESEE AND AS SUCH THEIR APPEALS HAVE BEEN TAKEN UP TO DECIDE EX PARTE WITH ASSISTANCE OF THE LD. SR. STANDING COUNSEL FOR THE REVENUE. 4. WE HAVE HEARD THE LD. SR. STANDING COUNSEL, SH. ZOIB HUSSAIN , SRI PRAVEEN BIDHURI ASSESSEE IN PRESON, SH . ROHIT TIWARI AND MOHAN KALRA, ADVOCATE, SH. AKHILESH KUMAR, A DVOCATE FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 8 AND PERUSED THE IMPUGNED ORDERS PASSED BY CIT(A)-I, NOIDA AND SUPPORTING DOCUMENTS PLACED ON FILE BY THE APPELLAN TS / CROSS OBJECTORS. 5. UNDISPUTEDLY SRI S.K. SRIVASTAVA LD. CIT(A)-1 NO IDA WAS HAVING JURISDICTION OVER APPEALS FILED UNDER INCOME TAX ACT PERTAINING TO NOIDA-1 AND NOIDA-2; IT IS ALSO NOT I N DISPUTE THAT CIT(A)-1, NOIDA WAS HAVING NO JURISDICTION OVER THE APPEALS PERTAINING TO GHAZIABAD JURISDICTION. 6. IT IS ALSO NOT IN DISPUTE THAT SRI S.K. SRIVASTA VA GOT COMPULSORILY RETIRED WITH EFFECT FROM 11.06.2019. IT IS ALSO NOT IN DISPUTE THAT ON THE COMPLAINT FILED BY MS. ANUJA SA RANGI, DIRECTORATE GENERAL OF INCOME TAX (DGIT-VIGILANCE) FIR BEARING NO. RC 1202019A0004 DATED 04.07.2019 WAS REGISTERED BY CENTRAL BUREAU OF INVESTIGATION (CBI), ANTI CORRUPT ION BRANCH (ACB), GHAZIABAD AGAINST SH. S.K.SRIVASTAVA THEN CI T(A)- 1 AND 2 NOIDA U/S 120B, 420, 468 IPC AND SECTION-7 OF TH E PREVENTION OF CORRUPTION ACT, 1988 (AS AMENDED IN 2018) FOR HA VING INDULGED IN ACTS OF OMISSION AND COMMISSION ADVERS ARIAL TO THE INTEREST OF REVENUE. IT IS ALSO ONE OF THE ALLEGATI ON IN THE FIR THAT SRI S.K. SRIVASTAVA CLAIMED TO HAVE PASSED 104 O RDERS AS CIT(A)-1 AND CIT(A)-2, NOIDA DURING DECEMBER, 201 8 BUT PRIMA FACIE PASSED IN THE MONTH OF JUNE, 2019. IN T HE BACKDROP OF FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 9 THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CAPTIO NED CASES THE SOLE QUESTION ARISES FOR DETERMINATION IN THIS CASE S IS : AS TO WHETHER IMPUGNED ORDERS PASSED BY LD. CIT(A) -1 AND 2 NOIDA ARE ILLEGAL, BAD IN LAW AND NON-EST HAV ING BEEN PASSED WITHOUT JURISDICTION IN VIOLATION OF CBDT NOTIFICATION AND AFTER HIS COMPULSORY RETIREMENT (W ITH EFFECT FROM 11.06.2019 ?). 7. SO FAR AS APPEALS BEARING ITA NO. 1185/DEL/2020, A.Y. 2015-16, CO NO. 49/DEL/2020, A.Y. 2010-11, 6623/DEL /2019, A.Y. 2015-16, ITA NO. 6945/DEL/20, A.Y. 2009-10, CO NO. 152/DEL/2019, A.Y. 2009-10 ARE CONCERNED THEY ARE P ERTAINING TO GHAZIABAD JURISDICTION AND ONLY CIT(A)- KANPUR IS H AVING THE JURISDICTION TO TRY AND ENTERTAIN THE SAME AS PER C BDT NOTIFICATION NO. 66/2014 DATED 13/11/2014 READ WITH ORDER NO. C. C IT/CCA, KANPUR-III. IT IS BEYOND COMPREHENSION AS TO HOW AN D UNDER WHAT CIRCUMSTANCES CIT(A)-1 NOIDA HAS DEALT WITH AND DIS POSED OF THESE APPEALS PERTAINING TO GHAZIABAD WHICH ARE APP ARENTLY BEYOND HIS JURISDICTION. 8. FROM THE COPY OF NOTIFICATION DATED 13 TH NOVEMBER, 2014 ISSUED BY CENTRAL BOARD OF DIRECT TAXES (CBDT) COPY OF ORDER DATED 15.11.2014 PASSED BY THE CHIEF COMMISSIONER O F INCOME TAX, KANPUR SPECIFYING THE JURISDICTION OF CIT(A)S , COPY OF FIR NO. RC 1202019A0004 DATED 04.07.2019 AND REPORT ON THE BASIS OF VIGILANCE INSPECTION QUA THE WORK AND CONDUCT OF SH.S.K. FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 10 SRIVASTAVA CIT(A)-1 NOIDA CONDUCTED BY D.G.I.T(VIGI LANCE), NEW DELHI, IT IS PROVED ON RECORD THAT SRI S.K.SRIV ASTAVA CIT(A)- 1, NOIDA WHO WAS COMPULSORILY RETIRED W.E.F 11.06. 2019 AND VIGILANCE TEAM OF INCOME TAX CONDUCTED VIGILANCE IN SPECTION QUA HIS WORK AND CONDUCT FOUND FOLLOWING ILLEGALITIES A ND IRREGULARITIES COMMITTED BY HIM :- A. SH.SANJAY KUMAR SRIVASTAVA, IRS (RETD.) (87052) WHILE POSTED AS / CIT(A)-, NOIDA WITH ADDITIONAL CHARGE OF CIT(A)-2, NOIDA, PRIOR TO HIS COMPULSORY RETIREMENT W.E.F 11.6,2019 INDULGED IN ACTS OF OMIS SION AND COMMISSION ADVERSARIAL TO THE INTEREST OF REVEN UE. B. ORDERS REPORTED TO HAVE BEEN PASSED BY SH.SRIVAS TAVA IN THE MONTH OF DECEMBER, 2018, WERE PRIMA-FACIE PA SSED IN THE MONTH OF JUNE, 2019. C. ALL THESE ORDERS LIABLE 10 HAVE BEEN UPLOADED ON ITBA SYSTEM WERE UPLOADED BETWEEN 11 LH JUNE TO I3 LH JUNE, 2019, AFTER HIS DEMITTING THE OFFICE. D. THERE ARE ALSO INDICATIONS OF FALSIFICATION OF R ECORDS TO ALLUDE TOWARDS DISPATCH OF THESE ORDERS ON 7 TH JUNE, 2019, WHEREAS THEY WERE DISPATCHED ON 14 TH JUNE, 2019. E. SH.SANJAY KUMAR SRIVASTAVA PASSED 13 ORDERS WHIC H WERE OUTSIDE HIS JURISDICTION. F. IT WAS CLAIMED THAT 104 ORDERS WERE PASSED BY SH.SANJAY KUMAR SRIVASTAVA DURING DECEMBER, 2018, HOWEVER MANY OF THEM WERE UPLOADED TO THE CENTRAL SERVER USING HIS RSA TOKEN ONLY AFTER HIS RETIREMEN T. G. IT IS APPREHENDED THAT EITHER THE ORDERS WERE NOT PASSED BY SH.SANJAY KUMAR SRIVASTAVA DURING DECEMBER, 2018, OR IF THE ORDERS WERE INDEED PASSED DURING . DECEMBER, 2018, THEN THE POSSIBILITY OF UN DUE FINANCIAL GAINS BY DELAYING THE ISSUE OF ORDERS CAN NOT BE RULED OUT, H. IT IS APPREHENDED THAT ROLE OF PRIVATE PLAYERS L IKE CONTRACTUAL ENGAGES/OUTSOURCED STAFF IN THE ABOVE ACTIVITIES WAS VERY EVIDENT AND REQUIRES IN DEPTH INVESTIGATION. FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 11 9. FROM THE AFORESAID ILLEGALITIES AND IRREGULARITI ES BROUGHT ON RECORD BY THE VIGILANCE INSPECTION TEAM OF INCOME T AX DEPARTMENT QUA THE WORK AND CONDUCT OF CIT(A)-NOIDA IT HAS COME ON RECORD CIT(A)-I, NOIDA HAS DECIDED INCOME TAX APPEALS REFERRED TO IN PRECEDING PARA NO. 7 PERTAIN ING TO GHAZIABAD JURISDICTION OVER WHICH HE HAS NO JURISDI CTION PURPORTEDLY ON 31.12.2018 WHEREAS IT IS PROVED ON R ECORD THAT ALL THESE APPEALS WERE DISPOSED OF IN THE MONTH OF JUNE , 2019 AFTER HIS COMPULSORY RETIREMENT. IT IS ALSO PROVED ON REC ORD THAT ALL THE IMPUGNED ORDERS HAVE BEEN UPLOADED ON ITBA SYSTEM B ETWEEN 11 TH JUNE TO 13 TH JUNE, 2019 AFTER HIS DEMITTING THE OFFICE BY SRI S.K.SRIVASTAVA, CIT(A)-1 AND2 NOIDA. IT IS ALSO PRO VED THAT HE HAS UPLOADED THE IMPUGNED ORDERS TO THE CENTRAL SER VER USING HIS RSA TOKEN ONLY AFTER HIS RETIREMENT. ALL THESE FACT S TO GO TO PROVE THAT THE IMPUGNED ORDERS HAVE BEEN PASSED BY SRIS .K.SRIVASTAVA, CIT(A)-1 AND 2 NOIDA AFTER HIS COMPULSORY RETIREMEN T WITH EFFECT FROM 11.06.2019, BECAUSE THE MOMENT HE CEASES TO HO LD HIS OFFICE HE HAS BECOME FUNCTUS OFFICIO. 10. HONBLE SUPREME COURT IN CASE OF UNITED COMMERCIAL BANK LTD. VS. WORKMAN 1951 SCR 380 IN THE IDENTICAL SITUATION HELD THAT JURISDICTIONAL DEFECT STRIKES AT THE VERY AUTHORITY OF THE FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 12 COURT TO PASS ANY DECREE AND SUCH A DEFECT CANNOT B E CURED EVEN BY CONSENT OF THE PARTIES. 10A. HONBLE SUPREME COURT OF INDIA IN CASE CIT ED AS KANWAR SINGH SAINI VS. HIGH COURT OF DELHI HELD THAT ORDER/ DECREE PASSED BY COURT HAVING NO JURISDICTION IS A NULLITY BY RETURNING FOLLOWING FINDINGS : THERE CAN BE NO DISPUTE REGARDING THE SETTLED LEGAL PROPOSITION THAT CONFERMENT OF JURISDICTION IS A LEGISLATIVE FUNCTION AND IT CAN NEITHER BE CONFERRED WITH THE C ONSENT OF THE PARTIES NOR BY A SUPERIOR COURT, AND IF THE COURT PASSES ORDER/DECREE HAVING NO JURISDICTION OVER THE MATTER, IT WOULD AMOUNT TO A NULLITY AS THE MATTER GOES TO THE ROOTS OF THE CAUSE. SUCH AN ISSUE CAN BE RAISED AT ANY BELATED STAGE OF THE PROCEEDINGS INCLUDING IN APPEA L OR EXECUTION. THE FINDING OF A COURT OR TRIBUNAL BECOM ES IRRELEVANT AND UNENFORCEABLE/INEXECUTABLE ONCE THE FORUM IS FOUND TO HAVE NO JURISDICTION. ACQUIESCENCE OF A PARTY EQUALLY SHOULD NOT BE PERMITTED TO DEFEAT THE LEGIS LATIVE ANIMATION. THE COURT CANNOT DERIVE JURISDICTION APA RT FROM THE STATUTE. [VIDE UNITED COMMERCIAL BANK LTD. V. WORKMEN, NAI BAHU V. LALA RAMNARAYAN, NATRAJ STUDIOS (P) LTD. V. NAVRANG STUDIOS, SARDAR HASAN SIDDIQUI V. STAT, A.R. ANTULAY V. R.S. NAYAK UNION OF INDIA V. DEOKI NANDAN AGGARWAL, KARNAL IMPROVEMENT TRUST V. PARKASH WANTFT, U.P. RAJKIYA NIRMAN NIGAM LTD. V. INDURE (P) LTD ., STATE OF GUJARAT V. RAJESH KUMAR CHIMANLAL BAROT, KESAR SINGH V. SADHU, KONDIBA DAGADU KADAM V. SAVITRIBAI SOPAN GUJAR AND CCE V. FLOCK (INDIA) (P) LTD.] 11. HONBLE SUPREME COURT IN CASE OF FATMA BIBI AHMED PATEL & ANRS (2008) 6 SCC 789 HELD THAT JURISDICTIONAL ISSUE GOES TO THE ROOT OF THE MATTER AND THE ENTIRE PROCE EDINGS HAVING BEEN INITIATED ILLEGALLY AND WITHOUT JURISDICTION, AND THUS ARE NULLITIES. FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 13 12. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE AND FO LLOWING THE DECISIONS RENDERED BY HONBLE SUPREME COURT IN CASE OF FATIMA BIBI (SUPRA) , UNITED COMMERCIAL BANK (SUPRA) AND KANWAR SINGH SAINI (SUPRA) WITHOUT ENTERING INTO THE MERITS OF THE CAPTIONED APPEALS, WE ARE OF THE CONSIDERED VIE W THAT THE IMPUGNED ORDERS SUFFER FROM JURISDICTIONAL DEFECT W HICH IS NOT CURABLE HAVING BEEN PASSED BY LD. CIT(A)-1 AND 2 NO IDA AFTER HIS COMPULSORY RETIREMENTS WITH EFFECT FROM 11.06.2019, WHEN HE WAS FUNCTUS OFFICIO, ARE NOT SUSTAINABLE IN THE EYES OF LAW, HENCE, NULLITIES. SO QUESTION FRAMED IS ANSWERED IN AFFIRMATIVE. 13. CONSEQUENTLY, IMPUGNED ORDERS PASSED IN THE CA PTIONED APPEALS BY CIT(A)-1 AND 2 NOIDA ARE SET ASIDE TO TH E FILES OF THE RESPECTIVE JURISDICTIONAL CIT(A)-1 AND 2 NOIDA AND CIT(A) GHAZIABAD TO DECIDE AFRESH IN ACCORDANCE WITH LAW B Y PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE / REV ENUE. CONSEQUENTLY AFORESAID APPEALS / CROSS OBJECTIONS A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 16 TH DAY OF DECEMBER, 2020. SD/- SD/- (N.K.BILLAIYA) (KU LDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 8 TH DAY OF JANUARY, 2021 FIT FOR PUBLICATION ITA NO.- 6614/DEL/2019 AND OTHERS. SD/- SD/- AM JM 14 BR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-20, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI