TMI Blog2011 (7) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the assessee and the learned Departmental Representative, Mr. Parthasarathi Naik, appearing on behalf of the Revenue. 3. The assessee filed an additional ground of appeal which reads as follows. He prayed that this being a legal ground, the same may be admitted. The learned CIT(A) has erred in not appreciating that the quantum addition made by the Assessing Officer under section 68 was illegal and bad in law and hence no penalty could be validly imposed. The learned CIT(A) failed to appreciate that since the appellant has not maintained any books of account, addition cannot be made under section 68 of the Act. 4. Before us, learned Counsel submits that the addition in question was made under section 68 of the Act on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed a balance sheet and in those circumstances, an addition can be made under section 68 of the Act. On facts, he submits that the assessee has introduced bogus gifts and had concealed her income warranting levy of penalty. He relied on the findings of the Assessing Officer as well as the Commissioner (Appeals). 8. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and on perusal of the papers on record, as well as the case laws cited before us, we hold as follows:- On the first issue of admission of additional ground of appeal, we hold that the ground raised is a legal ground and we have to admit the same. We draw strength from the following case laws:- The Mumbai Bench of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with section 148 are mandatory. There could never be a waiver of a mandatory provision for the simple reason 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 appellate order of the Tribunal thereon would also be a nullity and the Tribunal cannot confer any jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on account of lack of jurisdiction at any time and at any stage of the proceedings. In view of the importance of the question of validity of the assessment and since the matter involved a pure legal question not involving any investigation into facts, the additional ground was to be admitted. The initial warrant and the panchanama were in the name of the assessee s husband and not in the name of the assessee. The same was the case relating to the search of the locker. Thus, there was no search warrant in the name of the assessee. Section 158BB(1) says that where a search initiated under section 132 or books of account, etc., are requisitioned under section 132A in the case of any person then the undisclosed income of that person shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148 shall be served on a person treating as agent of a non-resident under section 163 after expiry of the period of two years from the end of the relevant assessment year. In the instant case, notice under section 148 was issued on 13-2-2001 i.e., beyond the period of two years from the end of the relevant assessment year in the name of T treating it as agent of non-resident assessee. Thus, it would appear that a valid and proper notice under section 148 was not issued and served on the assessee, which is a condition precedent for assumption of valid jurisdiction for initiating proceedings under section 147. In the instant case, since initiation of the reassessment proceedings were vitiated as the notice under section 148 had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the constituent s account in the books maintained by the bank. It is not as if the pass book is maintained by the bank as the agent of the constituent nor can it be said that the pass book is maintained by the bank under the instructions of the constituent. Hence, the pass book supplied by the bank to the assessee cannot be regarded as the book of the assessee, that is, a book maintained by the assessee or under his instructions. Therefore, a cash credit for the previous year shown in the assessee s bank pass book but not shown in the cash book maintained by the assessee or under his instructions. Therefore, a cash credit for the previous year shown in the assessee s bank pass book but not shown in the cash book maintained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
