9911796707
Advanced Search 
TMI Blog2005 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the assessee under section 138(8) as well as under section 217 is perfectly justified as the assessment under section 147 has been made for the first time after April 1, 1985 and so it is a regular assessment? 3. Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was in law justified in treating the assessment of the assessee as regular assessment within the meaning of section 2(40) of the Income-tax Act, 1961?" The brief facts of the case are that for the assessment year under consideration, a notice under section 148 of the Act, dated February 28, 1983, was served upon the assessee on March 19, 1983. In pursuance thereof, return was filed on September 10, 1984, declaring the total income as nil. The Income-tax Officer has completed the assessment on an income of Rs. 62,450 vide order dated April 19, 1986. In the order, interest under section 139(8) and section 217 was also demanded. The assessee filed appeal before the Appellate Assistant Commissioner of Income-tax, Moradabad, which was partly allowed. The assessee further filed appeal before the Tribunal. Before the Tribunal, the assessee moved an application for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Assessing Officer, the assessee had not raised this issue before the Commissioner of Income-tax (Appeals) nor has he placed the copy of the reasons recorded which could perhaps indicate what was in the mind of the officer for invoking section 148. The plea was the argument of the assessee in this regard has to be taken as a mere allegation without adducing of any evidence. In regard to charging of interest under section 139(8), reliance was placed on the Karnataka High Court decision in the case of CIT v. Deepchand Kishanlal [1990] 183 ITR 299 according to which the later legislative intent could and should be taken into account for proper appreciation of the legislative provision. The Tribunal has refused to permit the assessee to take the additional grounds. We have heard Sri Vikram Gulati, learned counsel for the assessee, and Sri R.K. Upadhyaya, learned standing counsel appearing on behalf of the Revenue. So far as questions Nos. 2 and 3 are concerned, counsel for both the parties have very fairly conceded that both the aforesaid questions are covered by the decision of the apex court in the case of K. Govindan and Sons v. CIT reported in [2001] 247 ITR 192 again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing the notice of reassessment by the higher authorities under section 151. These three conditions have been introduced by way of safeguards in public interest so that the finally concluded proceedings, which at the time of the original assessment could be reopened through the initial procedure of appeal, revision or rectification before the assessment became final, could not be lightly reopened with the consequent hardship to the assessee and also unnecessary waste of public time and money in such proceedings. These conditions have, therefore, to be treated as being mandatory. There could never be a waiver of a mandatory provision for the simple reasons that in such cases, jurisdiction could not be conferred on the authority by mere consent, but only on conditions precedent for the exercise of jurisdiction being fulfilled. If jurisdiction cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt itself is challenged can be urged before any authority for the first time. If it is found that the Income-tax Officer had no jurisdiction to make an order of reassessment, it is irrelevant that the jurisdiction of the Income-tax Officer to reassess was not challenged at any of the earlier stages. The assessee is entitled to challenge the jurisdiction of the Income-tax Officer to initiate reassessment proceedings before the Appellate Assistant Commissioner in the second round of proceedings even though he had not raised it earlier before the Income-tax Officer or in the earlier appeal. The powers of the first appellate authority, whether the Appellate Assistant Commissioner or the Commissioner of Income-tax (Appeals) are coterminous with that of the Income-tax Officer. The appellate authority has jurisdiction to entertain a ground regarding jurisdiction to make reassessment in an appeal following remand." In the case of Johri Lal (HUF) v. CIT reported in [1973] 88 ITR 439, the apex court has held as follows: "The formation of the required belief by the Income-tax Officer before proceedings can be validly initiated under section 34(1)(a) is a condition precedent. The fulfilment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
