TMI Blog2009 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-2006, whereby it is requested that the assessee has filed affidavit of Shri Nitin Shripad Pujari explaining the delay and the circumstances in which the delay occurred. Learned counsel for the assessee, Shri J.P. Shah, senior advocate stated that the delay is unintentional and because of human error in view of the affidavit and stated that if the delay is not condoned it will cause huge damage and a genuine cause will be defeated. The assessee has filed the affidavit of the senior officer of the deceased assessee, who was handling the affairs of late Shrimant F.P. Gaekwad, i.e., Shri Nitin Shripad Pujari, wherein he has solemnly affirmed as under : "I, Nitin Shripad Pujari, son of Shripad M. Pujari, at present residing at 8-B, Samir Society, Near Trilok Nagar, Ayurvedic Hospital Road, Ranigate, Baroda, aged 35 years, solemnly affirm and state as follows : I have been working in the staff of late Shrimant F.P. Gaekwad for the last ten years. I have been working as a go-between the Maharaja s family and the chartered accountant in the income-tax matters. Smt. Manjushree Gupta, chartered accountant of M/s. JRS Patel and Co., chartered accountant, Vadodara had handed over to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of M/s. JRS Patel and Co., chartered accountants, Vadodara. The order along with prepared grounds and the memorandum of the said appeal were handed over to Nitin Pujari in the beginning of the second week of October, 2004 for signatures and filing of the appeals to the Tribunal. However, the said fact was never discussed with me either by the JRS Patel and Co. or Nitin Pujari. In the meantime Smt. Manjushree Gupta asked Nitin Pujari regarding the acknowledgment of appeals filed with the Income-tax Appellate Tribunal. At that moment Nitin Pujari realised that, by mistake the Income-tax Appellate Tribunal appeals were not filed as the relevant papers had remained with him only. He could understand that he had committed the grave mistake. He explained all the relevant facts to me and under my instructions he requested our tax consultants to prepare all the relevant papers afresh and also help in preparing the affidavit explaining the delay. Accordingly the appeal was filed with Nitin Pujari s affidavit explaining the delay. Ultimately, there are lot of civil litigations pending and on going in the case of estate of late Maharaja F.P. Gaekwad and late Rajmata Shantadevi Gaekwad a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-appellant of 883 days in approaching the court against dismissal of his application to set aside ex parte decree passed against him Non-action on the part of his advocate explained as cause for the delay Appellant also comparing about conduct of the advocate before Consumer Forum and getting 50,000 as compensation Appellant s explanation for the delay accepted and delay condoned by trial court But in revision High Court setting aside the order of trial court on ground that appellant was negligent and was not careful enough to meet the advocate to verify the stage of the proceedings for a long time Held, High Court in revision erred in interfering with the exercise of jurisdiction by trial court in condoning the delay when appellant s conduct did not as a whole warrant castigating him as an irresponsible litigant having regard to present busy and preoccupied life." 6. The hon ble apex court further held that in the absence of anything showing male fide or deliberate delay as a dilatory tactic, court should normally condone the delay. The findings of the hon ble court an that the primary function of a court is to adjudicate the dispute between the parties and to advance su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent jurisdiction and would be a void order or a nullity. In view of this argument, he stated that the jurisdictional issue be admitted and adjudicated. 10. On the other hand, the learned senior Departmental representative argued that the assessee has never raised this issue before the lower authorities or before the Tribunal at the first stage, hence entirely new plea or new issue cannot be raised for the first time. He stated that the assessee having given up the contention regarding validity of notice under section 17(1) in the original proceedings and the matter having become final by the remand order/set aside order of the Tribunal, the same question cannot be raised before the Tribunal for the first time. 11. We find that this issue of admissibility of a jurisdictional issue for the first time even though the same was not raised at the stage of remand by the Tribunal, the assessee can raise this issue, as held by the hon ble jurisdictional High Court in the case of P.V. Doshi v. CIT [1978] 113 ITR 22 (Guj.), wherein it is held as under (from headnote) : " Held, that as a jurisdictional provision which was mandatory and enacted in public interest could never be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opened with the consequent hardship to the assessee and also unnecessary waste of public time and money in such proceedings. The conditions have, therefore, to be treated as being mandatory. There could never be a waiver of a mandatory provision for the simple reason that in such cases jurisdiction could not be conferred on the authority of mere consent but on condition precedent for the exercise of jurisdiction being fulfilled. He stated that if jurisdiction can be conferred by consent there would be no question of waiver, acquiescence or estoppel or the bar of res judicata being attracted because the order in such cases would lack inherent jurisdiction and would be a void order or a nullity. If an original order is without jurisdiction it would be a nullity confirmed in further appeals. The appellate order of the Tribunal thereon would also be a nullity and the Tribunal cannot confer any jurisdiction on the Income-tax Officer by making a remand order. An order of reassessment was passed on the assessee. In an appeal against the order before the Appellate Assistant Commissioner, the assessee gave up the contention regarding the validity of the notice of reassessment. On the meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t wealth. The assessee challenged the additions before the Commissioner of Wealth-tax (Appeals) who vide his order Nos. CAB/V-12,13,14 and 15/85-86 dated 31-12-1986 decided the appeals of the assessee. Subsequently appeal direct was given and the net wealth of the assessee was determined accordingly. The Department as well as the assessee went in second appeal against the orders of the Commissioner of Wealth-tax (Appeals) and the Tribunal vide its order in W.T. A. Nos. 886 to 888/Ahd./1984 and W.T. A. Nos. 227 to 229/Ahd./1987 both dated 31-12-2003 confirmed certain additions and directed to reframe assessment on some of the points. Thereafter in all these assessment years reassessment notice was issued beyond the period of four years from the end of the respective years only regarding one item, i.e., gold ornaments. The Assessing Officer in the reassessment order for the assessment years 1972-73 to 1974-75 included in the net wealth the land admeasuring 426 acres which were considered as exempt in original assessment under section 16(3) of the Act and taxed in the reassessment. As far as the assessment years 1975-76 to 1979-80 this 426 acres of land was not included in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax (Appeals) enhanced the same by including in the taxable wealth. Learned counsel for the assessee stated that once reopening was for the purpose of including gold ornaments and the reopening was beyond four years in respect of concluded assessment under section 16(3) of the Act particularly when the assessee has declared fully and truly all material facts necessary for the assessment, in that eventuality no reassessment is possible. As far as the merits of the case are concerned, learned counsel for the assesses stated that 426 acres of land had the same effect as that of 202 acres allowed by the Assessing Officer Learned counsel drew our attention to the letter from the hon ble Minister of State for Finance which states that not only the main building but the entire area composing the palace complex is exempt under section 5(1)( iii ) provided the entire area was in actual occupation of the former Ruler at the time of the Notification and continues to be in the occupation of the successor at the relevant time and has not been put to any other use. He stated that the whole plot of land is necessary for reasonable enjoyment of the palace and the same has been used in the same way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding demands relating thereto are modified/revised. You should send your compliance report within one month giving details of the cases reviewed/modified and the tax effect relating thereto. No. BRD/SIB/103-22/85-86." 18. In view of these arguments and the reliance placed on the circular, learned counsel for the assessee stated that the reopening is bad in law and even on the merits the issue should be allowed. 19. On the other hand the learned senior Departmental representative stated that the Tribunal vide their order dated 31-12-2002 in the case of the assessee for the assessment years 1975-76 to 1979-80 observed vide paragraph 5 of its order that "this issue of additional land of 426 acres was not the subject-matter of dispute whether the discussion of the Commissioner of Wealth-tax (Appeals) in the appeal for the assessment year 1967-68 was there for this land is also not evident. We, therefore, set aside the order of the Commissioner of Wealth-tax (Appeals) and remit the matter back to the file of the Assessing Officer to consider the claim of the assessee in the light of the appellate order for the assessment year 1967-68 and if he finds that the land of 202 acr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cres appurtenant to Laxmi Vilas palace has the same bearing as desired by the Income-tax Appellate Tribunal. Further, the assessee did not satisfy the Assessing Officer about the reasonableness of the land appurtenant to palace for the enjoyment of the same. In view of these facts and as per the directions of the Income-tax Appellate Tribunal vide their orders dated 31-12-2002 and 31-12-2003 for the assessment years 1975-76 to 1979-80 and 1972-73 to 1974-75 respectively, the Assessing Officer came to a conclusion that the land of 39.4 acres and 4)2 acres is quite reasonable for the enjoyment of the palace and accordingly rest of the land of 426 acres has been brought to tax relying on the decision of the Income-tax Appellate Tribunal, Jaipur Bench ( supra ) and Assessing Officer has correctly held the reasonableness of the land appurtenant to the Laxmi Vilas palace in the absence of any documentary proof and rest of the land has been brought to tax. 20. We have heard the rival contentions and gone through the facts and circumstances of the case. We find that the undisputed fact is that the assessee claimed 707 acres of land to be exempt under section 5(1)( iii ) of the Wealth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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