TMI Blog2019 (2) TMI 1955X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, we set aside the order of the Ld.CIT(A) and restore all the issues to the file of the Ld. CIT(A) for denovo adjudication. Since we have restored all the issues in appeal of the assessee to the file of the Ld. CIT(A) the issues raised in the grounds of appeal by the Revenue also restored to the file of the Ld. CIT(A) for denovo adjudication. - ITA NO. 838/MUM/2016, ITA NOs. 481 & 5315/MUM/2016 - - - Dated:- 13-2-2019 - SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON'BLE ACCOUNTANT MEMBER For the Assessee : Shri Haresh G. Buch Shri Ms. Moksha Mehta For the Department : Shri Abi Rama Kartikeyan ORDER PER C.N. PRASAD (JM) 1. These three appeals are filed by the assessee and Revenue for the Assessment year 2011-12. Cross appeals were filed against the order of the Ld. Commissioner of Income tax (Appeals)-12, Mumbai [hereinafter in short Ld.CIT(A) ] dated 04.11.2015 arising out of the proceedings u/s.143(3) of the Act and the Revenue filed the appeal against the order of the Ld.CIT(A) arising out of the proceedings u/s. 154 of the Act. 2. The assessee at the outset, raised ground No.1 contending that Ld.CIT(A) erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(a) of the Act. In the case of CIT v. Premkumar (supra) the Hon ble Kerala High Court held that Appellate commissioner might confirm, reduce, enhance or annul assessment but he could not refer case back to Assessing Officer for making the fresh assessment nor could he direct the Assessing Officer to decide in accordance with his directions. While holding so, it has been observed as under: - 29. Section 251 of the Act spells out the powers of the Commissioner (Appeals). Before the amendment by Finance (No. 2) Act, 2014, the provision read: 251. Powers of the [* * *] Commissioner (Appeals). - (1) In disposing of an appeal, the [* * *] Commissioner (Appeals) shall have the following powers (a) in an appeal against an order of assessment he may confirm, reduce, enhance or annul the assessment; [* * *] [(aa) . . . (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The [* * *] Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provision is much worse - indefensible. On the contrary, the Revenue asserts that Premkumar first raised an objection that section 158BC had no application. This defence merited the Appellate Commissioner's acceptance; it led to the remand. Absent any challenge to the order of remand, the order's impact cannot be wished away: Premkumar cannot hunt with the hound and run with the hare; he should choose either. 34. A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction, lays down the Supreme Court Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300, cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes , 11th Edn., at p. 375, describes the rule: Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public on the one hand and confer power on the State on the other. 39. Onkarmal per M. Hameedullah Beg, J. (as his Lordship then was), holds that the waiver, even where both sides have agreed to waive the operation of a statutory provision, cannot extend to a case in which the effect may be either to oust the jurisdiction conferred by statute or to confer a jurisdiction which, according to the statute, is not there. 40. In Commissioner of Income Tax v. Jolly Fantasy World Ltd. [2015] 373 ITR 530 (Guj), a Division Bench of the Gujarat High Court, relying on the above two judgments, held, somewhat under similar circumstances as we face now, that as for the estoppel or waiver, it is immaterial that the assessee participated in the earlier round of litigation either before the Assessing Officer or before the Tribunal, or consequently before the Assessing Officer. It cannot bar the assessee from challenging the jurisdictional authority of an adjudicator. 41. The High Court has undoubtedly jurisdiction to decide whether the taxing authority, observed the Supreme Court in Bhopal Sugar Industries Ltd. v. D. P. Dube, Sales Tax Officer 10AIR 1967 SC 549, as quoted in Okayti Tea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhopal Sugar Industries is unmistakable. Under the amended section 251 of the Act, the Appellate Commissioner may confirm, reduce, enhance, or annul the assessment. But he cannot refer the case back to the Assessing Officer for making a fresh assessment; nor can he direct the Officer to decide in accordance with his directions. 7. Since the Ld. CIT(A) directed the Assessing Officer to verify the claim and allow in accordance with law or in accordance with her directions, in our view, she travelled beyond the scope of the provisions u/s.251(1)(a) of the Act. Thus, respectfully following the above decision, we set aside the order of the Ld.CIT(A) and restore all the issues to the file of the Ld. CIT(A) for denovo adjudication. Since we have restored all the issues in appeal of the assessee to the file of the Ld. CIT(A) the issues raised in the grounds of appeal by the Revenue also restored to the file of the Ld. CIT(A) for denovo adjudication. 8. In so far as the grounds of appeal raised by the Revenue in ITA.No. 5315/Mum/2016 against the order passed by the Ld. CIT(A) dated 27.06.2015 u/s. 154 of the Act is concerned, as we restored all the issues to the file of the Ld.CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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