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2020 (1) TMI 823 - AT - Income TaxReopening of assessment u/s 147 - purported infringement of section 194C of the Act ostensibly on review of existing records - reopening after four years - HELD THAT:- We find that the action u/s 147 was sought to be taken in respect of assessment completed u/s 143(3) earlier after expiry of four years from the end of relevant assessment year alleging escapement of income from taxation. Therefore, the action of the AO is also required to be tested on the touchstone of embargo placed by the first proviso to section 147 of the Act. We do not find anything on record to show as to what material facts remained to be disclosed by the assessee in the original assessment proceedings. Significantly, the re-assessment order passed under s.147 of the Act also does not portray any concern of the AO on this aspect. Ostensibly, in the absence of an express allegation as a starting point, the conditions stipulated under first proviso under s.147 are not complied with. In this event, where embargo placed by the first proviso could not be overcome, the legitimacy of notice issued under the provisions of section 147 of the Act is vitiated. It is also the categorical case of assessee that TDS obligations under s.194C of the Act were duly met and challans for payments were also placed before lower authorities. The entire reassessment proceedings, thus, is without jurisdiction and liable to annulled. The consequent re-assessment order is also therefore liable to be struck down and cancelled as bad in law. Objection on behalf of the Revenue that challenge to jurisdiction u/s 147 has been raised for the first time before the Tribunal - It is well settled that the question of lack of jurisdiction is pure question of law capable of being adjudged on be basis of material on record. There is no estoppel available to the Revenue on the ground that assessee did not raise the question of jurisdiction before the lower authorities. Estoppel cannot give jurisdiction over a matter which is otherwise lacking. If an authority is found to have no jurisdiction to invoke reopening of a completed assessment, the consent or waiver can never give the jurisdiction to the authority concerned. Such view has been expressed J. S. Parker [1973 (2) TMI 25 - BOMBAY HIGH COURT] & P. V. Doshi vs. CIT [1977 (8) TMI 29 - GUJARAT HIGH COURT] Issuance of notice under s.147/148 of the Act is void ab initio and accordingly reassessment order is without jurisdiction and therefore illegal - Decided in favour of assessee.
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