Power of the Additional Commissioner to deal with a petition

HIGH COURT OF DELHI Valvoline Cummins Ltd. v. Dy. CIT W.P.(C) 2511/2008 and CM No. 4729/2008 May 20, 2008 High Court, observed, inter alia, as under : 20 Before actually hearing the present writ petition, we luid thought that the matter involved the disposal of only a stay application before the departmental authorities and, therefore, some workable solution could be found out but learned counsel for the Revenue informed us that since the time granted to the Assesses for making the payment of 15% of the rax demand is over- the Revenue is mm insisting that the entire lax amount of about Rs. 25.01 Dfores be paid. The attitude of the Revenue is, its all or nothing Faced with sins situation, we are left with no alternative but to proceed lo hear the writ petition on merit. 22. A perusal of the definition of an Assessing Officer is defined m Section 2(7A) would show that an Assessing Officer is a person who is vested with relevant jurisdiction by virtue of an order passed under Section 120(1) or Section 120(2) of the Act. An Additional Commissioner can also be an Assessing Officer if he is directed under Section 120(4)(b) of the Act to exercise or perform all or any of the powers and functions of an Assessing Officer 23. As we have mentioned above, the CBDT has issued a Notification dated 17th September, 2001 under Section 120(4)(b) of the Act conferring the powers of an Assessing Officer on an Additional Commissioner of Income Tax. To this extent there is no controversy. 24. Subsequent to the Notification dated 17th September, 2001 the CBDT issued an order dated 16' May, 2007 lo the effect that in view of the increasing gap between the work load and scrutiny assessment, it has been decided to entrust the Range Heads with the responsibility of making assessments in top revenue potential cases of the range to be selected on the basis of die returned income. 25. Pursuant to the order dated 16th May, 2007 read with a few subsequent letters in this connection, the Commissioner of Income Tax passed a jurisdiction order dated 1st August, 2007 whereby the Additional Commissioner was entitled to exercise the powers and perform the functions of an Assessing Officer in respect of some cases (including that of the Assessee). It is pursuant to these orders that the Additional Commissioner passed an assessment order on 31st December, 2007 in the case of the Assesses. The power of the Additional Commissioner to pass the assessment order is also not in dispute. 26. What is in dispute, therefore, is the power of the Additional Commissioner to deal with a petition tiled under Section 220(6) of the Act requesting for a stay of the demand. 27. In this regard, it was submitted by learned counsel for the Assessee that the power to grant a stay under Section 220(6) of the Act is a discretionary power vested in the Assessing Officer and since the Additional Commissioner is the Assessing Officer, he alone is statutorily required to exercise his discretion, and pass an order on the slay petition filed by the Assessee on 1st February, 2008. The Additional Commissioner/Assessing Officer does not become functus officio immediately on passing an assessment order he continues to be the Assessing Officer in respect of the Assessee and therefore he must deal with the application filed by the Assessee under Section 220(6) of the Act. 28. On the issue of "concurrent" jurisdiction between the Additional Commissioner and the Deputy Commissioner, learned counsel for the Assessee relied upon a decision of the Calcutta High Court in Berger Paints India Limited & others vs. Assistant Commissioner of Income Tax & others, [2000] 246 ITR 133. The Calcutta High Court had explained the meaning of the expression “concurrent” to mean two authorities having equal powers to deal with a situation - but the same work cannot be divided between them. 29. It appears to us quite clearly that there is a distinction between concurrent exercise of power and joint exercise of power When power has been conferred upon two authorities concurrently, either one of them can exercise that power and once a decision is taken to exercise the power by any one of those authorities, that exercise must be terminated by that authority only. It is not that one authority can start exercising a power and the oilier authority having concurrent jurisdiction can conclude the exercise of that power. This perhaps may be permissible m a situation where both the authorities jointly exercise power but it certainly is not permissible where both the authorities concurrently exercise power. One example that immediately comes to the mind is that of grant of anticipatory bail. Both the Sessions Judge and the High Court have concurrent power. It is not as if a part of that power can be exercised by the High Court and the balance power can be exercised by the Sessions Judge. If the High Court is seized of an application for anticipatory bail it must deal with it and similarly if the Sessions Judge is seized of an anticipatory bail, he must deal with it. There can be no joint exercise of power both by the High Court as well as by the Sessions Judge in respect of the same application for anticipatory bail. 30. In the facts of the present case, since the Additional Commissioner had exercised the power of an Assessing Officer, he was required to continue to exercise that power till, his jurisdiction in the matter was not over merely on the passing of the assessment order but it continued in terms of Section 220(6) of the Act in dealing with the petition for stay What has happened in the present case is that after having passed (he assessment order the Additional Commissioner seems to have washed his hands of the matter and left it to the Deputy Commissioner to decide the slay petition filed under Section 220(6) of the Act. We are of the opinion lliat this was not permissible in law. 32. The power under Section 220(6) of the Act being a statutory power, the Additional Commissioner could not abdicate or relinquish it. That apart, we find that the Additional Commissioner had no authority in law to delegate his power to the Deputy Commissioner when he was conferred a statutory power by the CBDT. The principle of delegates non potest delegare would clearly apply It is only the CBDT or the Commissioner who could have divested the Additional Commissioner of the power to deal with an application under Section 220(6) of die Act The Additional Commissioner could not suo motu divest himself of this power and confer it upon a junior functionary such as the Deputy Commissioner he had no such authority