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TMI Blog2019 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. CIT (A) has further erred in rejecting the aforesaid objection of assessee merely on the ground that this ground was not raised before AO and that the assessee has participated in the assessment proceedings, by completely ignoring the well established law that the question of jurisdiction can be raised at any stage and that the defect of lack of jurisdiction is a material one and not one which can be cured u/s 292 of the Income Tax Act, 1961. 2. On the facts and in the circumstances of the case, the ld. CIT (A) has further erred in upholding the addition of Rs. 74,796/- made by ld. AO by way of disallowance of brokerage expenses paid by assessee on the sale/purchase of land undertaken by assessee. Thus, the addition of Rs. 74,796/- deserves to be deleted. 2.1. That, the ld. CIT (A) has further erred in ignoring the evidences submitted by assessee in support of the fact of payment of brokerage in the shape of confirmation and ID of the broker, however, the ld. CIT (A) has upheld the impugned addition merely on the ground that the broker was not produced before the ld. AO, by completely ignoring the fact that request was made before the ld. AO to summon the broker u/s 131 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby the AO made addition on account of long term capital gain, deposits in the bank account and interest income from bank. The assessee challenged the action of the AO before the ld. CIT (A) and raised the objection against the validity of reassessment order passed by the AO for want of jurisdiction. However, the ld. CIT (A) rejected the said objection of the assessee against the jurisdiction of the AO to pass the reassessment order. 3. Before us, the ld. Counsel of the assessee has submitted that the AO under the charge of Ward 7(2) Jaipur has initiated the proceedings under section 147/148 without having the jurisdiction over the assessee. Once the assessee has filed the return of income with the ITO Ward-1, Hanumangarh and the return of income was processed by the ITO Ward-1, Hanumangarh, then the ITO Ward 7(2), Jaipur has no jurisdiction to initiate the proceedings under section 147/148 of the IT Act. Therefore, the reassessment order passed by the AO is invalid and liable to be quashed. In the absence of any order passed under section 127/124 of the IT Act to transfer the jurisdiction from ITO Ward-1, Hanumangarh to ITO Ward 7(2), Jaipur, the proceedings initiated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The ITO Ward 7(2) Jaipur issued notice under section 148 on 26th March, 2013 and has specifically stated in the assessment order in para 2 that the assessee has not filed any return of income in response to notice under section 148. Therefore, mere appearance of the A/R of the assessee before the AO and submitting the computation along with the reply would not amount to submission to the jurisdiction of the ITO Ward 7(2) Jaipur when the original return of income was already filed with the ITO Ward-1 Hanumangarh and was also processed under section 143(1) of the IT Act. Therefore, in the absence of any order passed under section 127 of the IT Act, the ITO Ward 7(2) Jaipur was having no jurisdiction over the assessee. The jurisdiction cannot be assumed by the AO only on the basis of territorial area but the jurisdiction of the AO is conferred on the basis of various criteria and one of which is the territorial area. However, these criteria as provided under section 120 are only for the CBDT to authorize any Income Tax Authority to exercise the powers and performance of the functions as Income Tax Authority. No Income Tax Authority can assume the jurisdiction suo moto until and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned order dated April 8, 2013, under section 245D(2C) of the Act but the Commission has merely postponed its decision on the same. Once it is held that the issue of true and full disclosure in the application for settlement is a jurisdictional issue and in the absence of its satis faction jurisdiction cannot be exercised by the Commission, it follows that mere participation in the proceeding by the parties cannot by itself bestow the jurisdiction on the Commission. The exercise of jurisdiction by an authority when not so vested in it is open to challenge and participation in the proceeding will not confer any jurisdiction as held by the apex court in Carona Ltd. v. Parvathy Swaminathan and Sons [2007] 8 SCC 559 and Kanwar Singh Sainy v. High Court of Delhi [2012] 4 SCC 360. 12. The next preliminary contention urged on behalf of the applicants is that the conduct of the petitioner in participating in the proceeding before the Commission and the delay of over four months in filing this petition after the passing of the impugned order disentitled the petitioner from being granted any relief. A delay of about four months in filing the petition after the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of the Assessing Officer cannot now challenge the same. This is not entirely correct. It is well settled that mere acquiescence will not give jurisdiction to an authority who has no jurisdiction. In fact this Court in CIT (Central) v. ITSC [2014] 365 ITR 68/[2013] 35 taxmann.com 443 has held that mere participation by a party in proceedings without jurisdiction will not vest/confer jurisdiction on the authority. Reason to believe that income chargeable to tax has escaped assessment is a jurisdictional fact and only on its satisfaction does the Assessing Officer acquire jurisdiction to issue notice. Thus this lack of satisfaction of jurisdictional fact can never confer jurisdiction and an objection to it can be raised at any time even in appeal proceedings. The mere fact that no objection is taken before the Assessing Officer would not by itself bestow jurisdiction as the Assessing Officer. Such an objection can be taken in appeal also. Moreover, the Apex Court in its recent decision in Kanwar Singh Saini v. High Court of Delhi [2012] 4 SCC 307 has held that it is settled position that conferment of jurisdiction is a legislative function and cannot be conferred by conse ..... 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