TMI Blog2015 (3) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... t even as per the revenue, the contents of the Panchnama including that of non-appearance of the name in the authorization/requisition of the assessee, remained undisputed. Therefore, it cannot be said that the Tribunal did not give any opportunity to the revenue to meet with the additional ground. We do not find that a participation by the assessee in the earlier round of litigation either before the AO or before the Tribunal or consequently before the AO can operate as a bar to the assessee to challenge the jurisdictional authority of the AO under Section 158BC of the Act. If the condition precedent for block assessment under Section 158BC is not satisfied, such would go to the root of the matter and the jurisdiction, which has not been expressly conferred by the statute, cannot be invested with the AO for the block assessment. On facts, as recorded herein above, admittedly, there was no warrant authorization on the name of the assessee and hence, the Tribunal has found the assessment as ab initio void, which, in our view, calls for no interference, on facts and on law. No substantial questions of law would arise for consideration - Decided in favour of assessee. - Tax Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2005, AO made block assessment order under section 158BC of the Income Tax Act (hereinafter referred to as the Act ). The matters were again carried in appeal before the Tribunal. Pending the appeal before the Tribunal, additional ground was permitted to be raised by the Tribunal on the point that the order passed under Section 158BC read with Section 254 of the Act is bad in law, invalid or untenable since no warrant authorizing search was issued in the name of the assessee, but on the basis of the warrant issued on the joint name as shown in the Panchnama as that of Arun Choksi, Sanjay Choksi and family and Jolly Tea (India) Ltd. and Jolly group of companies. The Tribunal initially vide order dated 17.8.2010, found that the additional ground being root of the matter could be permitted, hence, the ground was permitted. It appears that thereafter, vide order dated 8.11.2012, the Tribunal modified the reasons recorded and substituted the word Whether or not the 'additional grounds' in respect of the validity of a warrant alleged to be either not issued or issued in joint name and another legal issue of non-issuance of the notice under Section 143(2) can be rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue at the time of search in the column 'A' following narration is mentioned:- Warrant in the case of :Arun Choksi, Sanjay Choksi and family and Jolly Tea (India) Ltd., and Jolly group of companies. It is clear from the above that none of the assessee's name is appearing in above narration. The issue to be decided by us in these appeals is whether in the absence of names of the assesees on the warrant authorizing search can proceedings u/s 158BC be initiated against them or not. To decide the issue the provisions of Section 292CC of the Income Tax Act inserted w.e.f. 15' April, 1976 are relevant and for the sake of convenience the same are reproduced as under:- 292CC. Authorisation and assessment in case of search of requisition- (1) Notwithstanding anything contained in this Act- (i) it shall not be necessary to issue an authorization under section 132 or make a requisition under section 132A separately in the name of the each person; (ii) (ii) where as authorization under section 132 has been issued or requisition under section 132A has been made mentioning therein the name of more than one person, the mention of such names, of more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere appellants before the Tribunal, are void ab initio. Consequently, the Tribunal has allowed the appeals mainly on the additional grounds raised by the assessee. 6. Mr. Parikh, learned counsel appearing for the revenue contended that in view of the order passed by this Court in Special Civil Application No.9049 of 2013, it was required for the Tribunal to express its view on the permission of the additional ground. He submitted that when in the earlier round of litigation, at the stage of first assessment made by AO before the Tribunal, when appeals were preferred against the first assessment, a contention for non-availability of the block assessment as per Section 158BC was not raised, the Tribunal could not have permitted raising of the additional grounds by the assessee and he further submitted that even if such ground was raised and the Tribunal was to consider the same, the contention raised by the revenue before the Tribunal were required to be dealt with. Since such contentions are not dealt with, the order can be said as perverse. He alternatively submitted that as observed by this court in its order passed in Special Civil Application Nos.9044 of 2013 to 9053 of 2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitted vide order dated 17.8.2010. But, as this Court vide order dated 13.6.2013 did make the abovereferred observations and even if lenient view is taken, at the most, it would mean that opportunity would be available to the revenue to meet with the additional ground, but such opportunity has already been availed by the revenue. The Tribunal has considered the Panchnama prepared by the revenue. It was for the revenue to controvert the said material by any contemporaneous record or otherwise. But, it appears that even as per the revenue, the contents of the Panchnama including that of non-appearance of the name in the authorization/requisition of the assessee, remained undisputed. Therefore, it cannot be said that the Tribunal did not give any opportunity to the revenue to meet with the additional ground. 9. Apart from the above, even if, it is considered for the sake of examination that the ground so raised before the Tribunal could also be raised before this Court in the present appeals, then also, we find that it is well settled legal position that there cannot be any estoppel or waiver against statute or law. We may make useful reference to the decision of this Court in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssel [1841] 9 Dowl 487 as under: It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it,it amounts to an irregularity; if he cannot, it is a nullity. Thereafter it was pointed out that a waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction could not be waived, for consent could not give a court jurisdiction where there was none. Even if there was inherent jurisdiction, certain provisions could not be waived. What can be waived would be only those provisions which are for the private benefit and protection of an individual in private capacity, which might be dispensed with without infringing any public right or public policy. This settled legal position was again reiterated in Superintendent of Taxes v.OnkarmalNathmal Trust, AIR 1975 SC 2065, where the question had arisen in the context of the Assam Taxation (on Goods Carried by Road and on Inland Waterways) Act, 1961. The assessee had obtained an injunction order against the State in a writ petition c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a fetter laid to protect public, on wider ground of public policy, it was held that such provisions which confer jurisdiction on assessment and reassessment could never be waived for the simple reason that jurisdiction could neither be waived nor created by consent. In the concurring judgment his Lordship, Beg. J., at page 2077, also pointed out that if the notice under section 7(2) was a condition precedent to the exercise of jurisdiction to make the best judgment assessment, the doctrine of waiver could never confer jurisdiction so as to enable the parties to avoid the effect of violating a mandatory provision on a jurisdictional matter even by agreement. This decision completely settles the legal position. It makes a distinction between the provisions which confer jurisdiction and provisions which merely regulate the procedure by holding that such provisions which confer jurisdiction or such mandatory provisions which are enacted in public interest on ground of public policy even in such revenue statutes could not be waived, because of the underlying principle that jurisdiction could neither be waived nor created by consent. 10. Under the circumstances, as on the point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143 and section 144 shall, so far as may be, apply; (c) the Assessing Officer, on determination of the undisclosed income of the block period in accordance with this Chapter, shall pass an order of assessment and determine the tax payable by him on the basis of such assessment; (d) the assets seized under section 132 or requisitioned under section 132A shall be retained to the extent necessary and the provisions of section 132B shall apply subject to such modifications as may be necessary and the references to regular assessment or reassessment in section 132B shall be construed as references to block assessment . 158BD. Undisclosed income of any other person Where the Assessing Officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under section 132 or whose books of account or other documents or any assets were requisitioned under section 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs, Mumbai [JT 2006 (12) SC 379 : 2006 (9) SCALE 652], this Court opined: In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does not, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act. 10. Law in this regard is clear and explicit. The only question which arises for our consideration is as to whether the notice dated 06.02.1996 satisfies the requirements of Section 158BD of the Act. The said notice does not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter. 11. No proceeding under Section 158BC had been initiated. There is, thus, a patent non-application of mind. A prescribed form had been utilized. Even the status of the assessee had not been specified. It had only been mentioned that the search was other information had been furnished. The provisions contained in Chapter XIVB are drastic in nature. It has draconian consequences. Such a proceeding can be ini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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