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TMI Blog1974 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 3, the Inspecting Assistant Commissioner of Income-tax, Range V. In the course of the proceedings before respondent No. 3, the company was served with a notice under section 274(2) read with section 271 of the Income-tax Act, 1961, for the assessment year 1960-61, as in the opinion of respondent No. 3, the company had concealed the particulars of its income or deliberately furnished inaccurate particulars of such income for the assessment year 1960-61. Thereafter, by his order dated February 24, 1967, respondent No. 3 imposed a penalty of Rs. 1,04,000 upon the company under section 271(1)(c) of the Income-tax Act, 1961. Being aggrieved by the said order, the company preferred an appeal before the Income-tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no question as to the maintainability of the application under article 226 and the interest of the company would not also be prejudiced. The company made an application before the Appellate Tribunal praying for withdrawal of the appeal. The prayer portion of the application was to the following effect : "But now that the aforesaid matter in the hon'ble High Court would be coming up tomorrow for final hearing, we would be highly obliged if an order be made allowing us to withdraw the appeal. " The Tribunal by its order dated December 2, 1969, allowed the company to withdraw the appeal. In consequence, the appeal was dismised for non-prosecution. At the hearing of the rule before this court, on behalf of the revenue reliance was placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Appellate Tribunal praying for recalling its order dated December 2, 1969, and for the restoration of the appeal. It was also prayed that the delay in filing the said application for restoration of the appeal might be condoned. The Tribunal dismissed the said application of the company for restoration of the appeal on two grounds, namely, that (1) the application was filed after inordinate delay, and that (2) it had no jurisdiction to recall its order. Thereafter, the company moved this court under article 226 of the Constitution and obtained the present rule. The company has prayed for quashing the order of the Tribunal allowing the company to withdraw the appeal and dismissing the appeal for non-prosecution and also the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtain any material which they think is necessary and which they ought to have, and on that material to make the assessment or the estimate which the law requires them to make. They are not deciding a case inter Partes; they are assessing or estimating the amount on which, in the interests of the country at large, the taxpayer ought to be taxed. " In Commissioner of Income-tax v. Rai Bahadur Hardutroy Motilal Chamaria, it has been observed by the Supreme Court that it is well established that an assessee having once filed an appeal cannot withdraw it. In other words, the assessee having filed an appeal and brought the machinery of the Act into working cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the appeal to be withdrawn and dismissed the same for non-prosecution but the question is whether the assessee is estopped by its conduct from challenging the jurisdiction of the Appellate Tribunal. It is a well-established principle of law that jurisdiction cannot be conferred by consent of parties. If, under the Income-tax Act, the Tribunal had to dispose of the appeal on merits and had no power to allow withdrawal of the appeal on the prayer of the company, in my view, it is no argument that such withdrawal having been allowed on the prayer of the company itself the order of the Tribunal, though invalid, will have to be upheld as valid. There is no estoppel against a statute and an order which is invalid on the ground of want of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blood-pressure, in the month of July, 1967, as a result of which he was completely bed-ridden since then and could not speak properly. It has been certified by the doctor that from December, 1967, to November, 1970, the condition of Jaiswal was grave and he was advised complete rest in bed. The correctness of this certificate has been denied by the respondents. I do not, however, find any reason to disbelieve the certificate granted by the medical practitioner. In this connection, it may be pointed out that at the hearing of the previous rule, on behalf of the company, it was prayed that liberty might be given to the company to make an application to the Tribunal for restoration of its appeal. It was observed by K. L. Koy J.: "I do not thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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