TMI Blog2022 (4) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... position of law that the same cannot be invoked so as to confer jurisdiction. In this case, the Assistant Commissioner Income Tax had issued notice under Section 21 of the E.T. Act who admittedly had no jurisdiction. In terms of Section 21 of the E.T. Act, the Commissioner of Income Tax is the competent authority vested with that power. Therefore, the notice under Section 21 of the E.T. Act has necessarily to be issued by the Commissioner of Income Tax and not by the Assistant Commissioner. As a consequence, the notice being without jurisdiction, all the proceedings subsequent thereto are without authority of law. In Sahni Silk Mills (P) Ltd.. [ 1994 (7) TMI 312 - SUPREME COURT] the Supreme Court was considering the legality of resolution empowering the Director General to authorize any other Officer to exercise his powers. The Court found that in the absence of enabling provision, such delegation would not be permissible and that the legislature can permit any statutory authority to delegate its power to any other authority after such a policy is indicated in the statute itself and when parliament has specifically appointed an authority to discharge a function, it cannot be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 21 of the E.T. Act, to initiate the proceedings and it does not violate the provisions of Section 21 of the E.T. Act? 3. It would be noticed and admitted by the learned Counsel for the appellant that question (B) and question (C) herein above are the mere facet of / submission urged in support of question (A) and question (D), respectively. Therefore, both the questions (A) and (B) are subsumed in question (A). Similarly, question (C) and (D) are subsumed in question (D). In view of this, our consideration of question (A) and question (D) would include the submissions urged as question (C) and question (D). 4. Briefly, the facts leading this appeal, are as under : a. Respondent is a company engaged in the hotel business. On 6/12/1990 the respondent company has set up a tourist resort in the State of Goa. The respondent company, however, did not file returns required under Section 8 of the Expenditure Tax Act, 1987 (for short E.T. Act ) contending that it was exempt from filing returns under Section 5(1) of the E.T.Act. Notices, however, were issued by the Assessing Authority, requiring the assessee to file expenditure tax returns. In response to that, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of the Income Tax. It is submitted that on 26/03/2004 the revision orders have been passed by the Commissioner of Income Tax himself and therefore, the orders having been passed by the competent statutory authority cannot be said to be illegal only because notices under Section 21 of the E.T. Act were issued by an Officer other than the Commissioner. It has been submitted that as the respondent company/assessee had participated in the proceedings consequent to notice issued under Section 21 of the E.T. Act by the Officer other than the Commissioner of Income Tax, it amounted to waiver. The respondent company cannot now challenge the jurisdiction of the Assistant Commissioner who issued the notices in question. 6. Mr. D. Pangam, learned Counsel for the respondent company states that the notices have been issued by the Assistant Commissioner of Income Tax and not by the Commissioner of Income Tax. It is submitted that the Commissioner of Income Tax cannot pass the order on the basis of the notice issued by his subordinate. According to him, there can be no question of waiver by mere participation in the proceedings before the Commissioner of Income Tax specially when ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re stated that the said notice was issued on the instructions or direction of the Commissioner of Income Tax. 11. Insofar as principle of waiver is concerned, it is settled position of law that the same cannot be invoked so as to confer jurisdiction. In this case, the Assistant Commissioner Income Tax had issued notice under Section 21 of the E.T. Act who admittedly had no jurisdiction. In terms of Section 21 of the E.T. Act, the Commissioner of Income Tax is the competent authority vested with that power. Therefore, the notice under Section 21 of the E.T. Act has necessarily to be issued by the Commissioner of Income Tax and not by the Assistant Commissioner. As a consequence, the notice being without jurisdiction, all the proceedings subsequent thereto are without authority of law. 12. In Sahni Silk Mills (P) Ltd. (supra), the Supreme Court was considering the legality of resolution empowering the Director General to authorize any other Officer to exercise his powers. The Court found that in the absence of enabling provision, such delegation would not be permissible and that the legislature can permit any statutory authority to delegate its power to any other authority afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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