TMI Blog2010 (9) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... notice; Reassessment notice being void ab initio , the assessee cannot be said to have acquiesced in any proceeding or enquiry within the meaning of section 292BB and section 292BB does not lay down that even where a notice is void ab initio for want of jurisdiction, such notice shall still be deemed to have been duly served on an assessee in accordance with the provisions of the Income-tax Act - Appeal filed by the Department is dismissed. - A.D. JAIN AND K.G. BANSAL, JJ. H.K. Lal for the Appellant. Ravi Gupta and Raicsh Kumar Jain for the Respondent. ORDER A.D. Jain, Judicial Member. - This is Department s appeal for the assessment year 2001-02, taking the following grounds : "1. That on the facts and circumstances of the case as well as in law, the learned CIT(A) erred in allowing the appeal of the assessee and annulled the assessment by holding it to be without jurisdiction. 2. That on the facts and circumstances of the case as well as in law, the learned CIT(A) erred in ignoring the provisions of section 292BE of the Act in as much as the assessee never filed any objection to the initiation of proceedings. 3. That on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings were initiated well within time under the provisions of section 147 of the Act and that the notice issued was, in substance and effect, well in conformity and accordance with the intent and purpose of the Act. 6. The learned counsel for the assessee, on the other hand, has strongly relied on the impugned order. It has been contended that there is no error in the action of the learned CIT(A) in annulling the reassessment, since the ITO at Agra evidently did not have any jurisdiction over the assessee, which is a company registered at Delhi in 1997, having its office also at Delhi; and that the assessee had also undeniably filed its Income-tax returns for assessment years 1998-99 to 2000-01 in Delhi. It has been contended that it was on these patent facts available on record that the learned CIT(A) correctly annulled the reassessment wrongly done. It has been requested that as such, the appeal filed by the Department, having no merit, be dismissed. 7. We have heard the parties and have perused the material on record. Undisputedly the reassessment proceedings completed by the Assessing Officer at Delhi vide order dated 16-12-2008 were based on the notice issued under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 147 of the Act, of an assessee. It is also only an Assessing Officer within the meaning of section 2(7A) of the Act who can serve a notice under section 148 of the Act on an assessee. Herein, the Assessing Officer at Agra not being the Assessing Officer qua the assessee, as above, he could not have assessed or reassessed any escaped income of the assessee for the year under consideration, under section 147 of the Act and he could not have served the assessee with a notice under section 148 of the Act for the year under consideration. For these reasons, the impugned order cannot be found fault with at all. 11. The Department s objection regarding CIT(A) not having considered the provisions of section 292BB of the Act, too carries no force. Section 292BB of the Act reads as follows : "292BB. Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence is used either to denote conduct which is evidence of an intention by a party, conducting himself to abandon an equitable right; or to denote conduct from which another party would be justified in inferring such an intention. By such acquiescence, the assessee is led to what is known in law as estoppel by conduct. It is a consent which is sometimes called sleeping over one s rights . A person, having full knowledge of his rights, neglecting to dispute the rights of another or to force his own rights, is debarred from enforcing his rights and from questioning the other s rights. By such a conduct, under the law such a person acquiesces in the acts or rights of the other person. However, so as to constitute a valid acquiescence, lawful assent must be reasonably inferable and inferred from a conduct. Thus, acquiescence means a voluntary or volitional waiver or abandonment of one s rights. 17. Moreover, acquiescence, in order to be cognizable under the law, must be of a legal conduct, more particularly so, with regard to Governmental actions. 18. Now, to attract the provisions of section 292BB of the Income-tax Act, the assessee ought to have acquiesced with regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice of the notice, even though the assessee and his Authorized Representative have attended the hearing before the Assessing Officer during the assessment proceedings. Further, the design of the limitation period with reference to the end of the month leads to administrative inconvenience in as much as the last day of the month becomes a time- barring date. In order to address these issues and to reduce limitation, it is proposed to insert a new section 292BB in the Income-tax Act to provide that where the assessee has appeared in any proceeding or co-operated in any enquiry related to an assessment or reassessment, it shall be deemed that any notice under the provisions of this Act has been duly served upon him in time in accordance with the relevant provisions of the Act. Further, such assessee shall be precluded from taking any objection in any proceeding or enquiry under this Act that the notice was ( a ) not served upon him, or ( b ) not served upon him in time; or ( c ) served upon him in an improper manner............." 21. Now when once the notice itself was void from the very word go the assessee cannot be said to have appeared in any proceeding or to have co-oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any proceeding or inquiry under the Act. So, even if, for the sake of argument, it be taken that the assessee did appear in a valid proceeding or co-operated in a legitimate inquiry as per section 292BB, the provisions of the said section still do not get attracted. 27. When a statute requires that something shall be done in a particular manner or form without expressly declaring what shall be the consequence of non-compliance or not doing that in the manner or form prescribed, any failure to conform to the mode and form will be fatal to its validity. 28. The jurisdictional defect of the notice in question having been issued by an Assessing Officer not having jurisdiction over the assessee, as such, is not a mere irregularity, but an incurable illegality. To reiterate, herein, the factum of issuance of the notice by a non-jurisdictional Assessing Officer is an admitted fact. This defect is incapable of being cured by seeking recourse to the provisions of section 292BB of the Income-tax Act. 29. The findings of fact recorded by the learned CIT(A) in the present case, to the effect that the Assessing Officer at Agra did not have any jurisdiction over the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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