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2017 (3) TMI 1792 - ALLAHABAD HIGH COURTReopening of assessment u/s 147 - notice u/s 148 was issued by ITO-IV(1), Lucknow who had no jurisdiction in the matter and after transfer of case, ITO-V(2) who had jurisdiction in the matter, proceeded to make assessment without issuing notice u/s 148 which was mandatory, being a jurisdictional step - HELD THAT:- The curability permitted u/s 292BB is with regard to service of notice upon Assessee and not with regard to competence of authority who has issued notice. A similar question was considered in Commissioner of Income Tax, Gujarat-II Vs. Kurban Hussain Ibrahimji Mithiborwala [1971 (9) TMI 9 - SUPREME COURT] and Court said "Income Tax Officer's jurisdiction to reopen an assessment under Section 34 depends upon issuance of a valid notice. If notice issued by him is invalid for any reason, entire proceedings taken by him would become void for want of jurisdiction." Court then held that notice was invalid as A.O. had no jurisdiction to revise assessment then it cannot be treated to be mere irregularity so as to validate proceedings of assessment if the Assessee had participated. Similar is the view taken by a Full Bench of this Court in Laxmi Narain Anand Prakash Vs. Commissioner of Sales Tax, Lucknow [1980 (1) TMI 212 - ALLAHABAD HIGH COURT] The contention of learned counsel for Revenue that participation of Assessee before Jurisdictional A.O. would operate as acquiescence or waiver and will not invalidate proceedings is thoroughly misconceived. In Abdul Qayume Vs. Commissioner of Income Tax [1989 (12) TMI 37 - ALLAHABAD HIGH COURT] It is well settled that a jurisdiction can neither be waived nor created even by consent and even by submitting to jurisdiction, an Assessee cannot confer upon any jurisdictional authority, something which he lacked inherently. Even if, it can be said that Assessee submitted to jurisdiction of A.O., law is that Assessee cannot confer jurisdiction on an authority who did not have the same and we find support from Commissioner of Income Tax Vs. Hari Raj Swarup and sons [1982 (3) TMI 42 - ALLAHABAD HIGH COURT] In Mir Iqbal Husain Vs. State of U.P. [1963 (10) TMI 33 - ALLAHABAD HIGH COURT] it was held that requirement of valid notice cannot be waived. The mere fact that Assessee filed Return of Income pursuant to invalid notice would not render notice valid or validate subsequent proceedings which are vitiated in law for want of valid notice. In Raza Textile Ltd. Vs. Income Tax Officer, Rampur [1972 (9) TMI 15 - SUPREME COURT] Court said that it is incomprehensible to think that a quasi-judicial authority like A.O. can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. If an order is passed by a judicial or quasi-judicial authority having no jurisdiction, it is an obligation of Appellate Court to rectify the error and set aside order passed by authority or forum having no jurisdiction. This is what was held in State of Gujarat Vs. Rajesh Kumar Chimanlal Barot and another [2010 (5) TMI 600 - ALLAHABAD HIGH COURT] - Decided against Revenue and in favour of Assessee.
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