TMI Blog1980 (1) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... rly and validly effected on the petitioner and the learned Sales Tax Officer would acquire jurisdiction to finalise the proceedings under Section 21 under the circumstances of the case? The question hardly presents any difficulty but the circumstances found by revision authority were: It is not disputed that the notice under Section 21 of U. P. Sales Tax Act was served on Om Prakash and he had no concern with the assessee's firm. The assessee however appeared on the date of hearing in the proceedings under Section 21 of the U. P. Sales Tax Act. Learned Appellate Authority, therefore, held that service of notice on Om Prakash therefore, became immaterial and the proceedings cannot be said to be invalid . 2. It is the correctness of this view, which finds complete support from Kalapanath Singh's case, that seeks determination in this case. But before coming to it, it may be worthwhile to examine scope of Section 21 itself which reads as under: 21. (1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scapement of turnover can be issued or served on the assessee within the time prescribed in that behalf. Merely because the asses-see had knowledge of the proceedings under Section 21 cannot take the place of the service of a valid notice under Section 21. In Lakshmi Narain v. Commr. of Sales Tax (1971 UPTC 217) it was held: Service of notice is condition precedent for taking proceedings under Section 21. These decisions throw ample light on the controversy that notice under Section 21 is jurisdictional and is a condition precedent before which the assessing authority gets no jurisdiction to proceed. 3. Similar expression was used in Section 34 of Income Tax Act of 1922 and has been used in Section 147 of 1961 Act, an act with which Sales Tax Act has been held to be in pari materia. (See Ghansham Das v. Regional Assistant Commr. of Sales Tax [1964]51ITR557(SC) . While interpreting Section 34 it was held by Supreme Court, in Narain Chetty v. Income-tax Commr. [1959]35ITR388(SC) . The notice prescribed by Section 34 of the Income Tax Act for the purpose of initiating re-assessment proceedings is not a mere procedural requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is invalid and contrary to law. It, however digressed from more or less settled view and attempted to carve out a new approach by invoking principle of estoppel in taxation proceedings. The question therefore, that boils down for consideration is whether by participation of assessee the invalidity of notice was cured and assessing authority was clothed with jurisdiction to proceed under Section 21. 5. Jurisdiction is understood as the authority or power of a court or tribunal to entertain and decide in any judicial or quasi-judicial proceeding. It may be territorial, pecuniary, personal, local etc. Whatever form it may assume but it is firmly established that where a Court or tribunal has no jurisdiction, no amount of consent, acquiescence or waiver can create it. It was held as far back as 1887 by Privy Council of Ledgard v. Bull, ILR (1886) All 191 (203), When the Judge has no inherent jurisdiction over the subject matter of issue the parties cannot by their mutual consent convert it into a proper judicial process although they may constitute the Judge their Arbiter and be bound by his decisions on the merits when these are submitted to him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y invalid and the proceedings before the Income Tax Officer were consequently illegal and void. The service of notice on the assessee was a condition precedent to the assumption of jurisdiction of the Income Tax Officer under Section 34 Consent cannot confer jurisdiction and the assessment proceedings were in-valid. Similarly in Benarsi Silk Palace v. Commr. of Income Tax [1964]52ITR220(All) , it was held :-- Jurisdiction could be conferred only by statute and not by consent and acquiescence a: Since jurisdiction is conferred upon Income Tax Officer to proceed under Section 34 (1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence. In Commr. of Income Tax v. Ramsukh Moti Lal [1955]27ITR54(Bom) , [1956]30ITR439(Cal) , [1956]29ITR842(Mad) and [1956]30ITR484(Patna) the following principle has been reiterated; Issue of a notice is a condition precedent to the exercise of jurisdiction under Section 34 and there can be no waiver of it. In [1964]52ITR625(KAR) Mir Iqbal Husain v. State of U. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror in exercise of jurisdiction but an error which debars assessing authority from proceeding in the matter. In Commr. of Sales Tax v. Haji Allah (Reference No. 538 of 1966 decided on 2-1-1969) it was held by this Court: There is no waiver of estoppel of notice under Section 21. In Sikri Brothers Co. v. Commr. of Sales Tax (S. T. Case No. 35 of 1977 decided on 2nd May, 1979 Lucknow Bench) it was held: Invalidity of notice goes to the very root of matter and when once it is found that the notice instead of being addressed to the dealer who was to be made liable for the escaped turnover was addressed to an entity which did not exist the whole proceedings stand vitiated in law. The defect in notice was fatal to assumption of jurisdiction by a Sales Tax Officer. In view of the settled principle which is culled out from these various decisions given under Income Tax Act and Sales Tax Act the principle enunciated in Kalapa Nath's case cannot be held to be good law. 7. In the result this revision succeeds and is allowed. The question of law raised by the assessee is decided by saying that notice under Section 21 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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