TMI Blog1975 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax, West Bengal IV. (Sd/)- Income-tax Officer, 'E' Ward, Dist. 1(2), Cal. " The validity of the said notice has been questioned in this writ proceeding. Various grounds have been taken in para. 10 of the petition. Learned Advocate-General appearing in support of this application has stated before me that although various grounds have been taken in the petition, he will attack the validity of the notice only on two grounds, namely, (1) the notice is invalid as the notice does not indicate or mention whether B. D. Saraogi and others is a firm or HUF or association of persons, and (2) the sanction of the Commissioner is mechanical and in giving the sanction the Commissioner has not applied his mind. The learned Advocate-General has further stated that although he is not pressing the other grounds in this petition, it should not be considered that the other grounds are abandoned or are being given up by the petitioner. According to the learned Advocate-General, these two grounds are sufficient for the purpose of the disposal of this application and in that view of the matter he has confined his arguments only to these two grounds. The learned Advocate-Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontends that because of the aforesaid defects in the notice, the notice in the instant case must be considered to be invalid and illegal. In support of his contention the learned Advocate-General has relied on the following decisions : (1) Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC), (2) Sewlal Daga v. CIT [1965] 55 ITR 406 (Cal), (3) Shyam Sundar Bajaj v. ITO [1973] 89 ITR 317 (Cal), (4) Unreported decision of the Division Bench of this Court in Income-tax Ref. No. 217 of 1973 (Smt. Rama Devi Agarwalla v. CIT, delivered on 17-6-1975 and 18-6-1975 since reported in [1979] 117 ITR 256 (Cal)). The learned Advocate-General has submitted that the decision of the Division Bench in the case of Smt. Rama Devi Agarwalla [1979] 117 ITR 256 (Cal) indeed concludes the question involved in the present proceeding. The learned Advocate-General has further argued that as the question relates to lack of jurisdiction on the part of ITO, there cannot be any question of waiver on the part of the petitioners and even consent by the petitioners would not confer any jurisdiction on the part of the ITO. The learned Advocate-General has next contended that the facts and circumstances of the case wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of the Gujarat High Court in the case of CIT v. Bhanji Kanji's Shop [1968] 68 ITR 416 (Guj). Mr. Pal has also relied on the decision of the Supreme Court in the case of Pannalal Binjraj v. Union of India [1957] 31 ITR 565 in support of his submission that the petitioners cannot invoke this jurisdiction and he has placed particular reliance on the following observations at page 593 : " It was only after our decision in Bidi Supply Co. v. Union of India [1956] 29 ITR 717 (SC) was pronounced on March 20, 1956, that these petitioners woke up and asserted their alleged rights, the Amritsar group on April 20, 1956, and the Raichur Group on November 5, 1956. If they acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this court under article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this court." In my opinion, the notice in the instant case must be considered to be invalid. In the case of Y. Narayana Chetty v. ITO [1959] 35 ITR 388, the Supreme Court observed at p. 392 : " The argument is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Division Bench in the case of Rama Devi Agarwalla v. CIT (unreported Income-tax Reference No. 217 of 1973--judgment delivered on 17-6-1975 and 18-6-1975) (since reported in [1979] 117 ITR 256 (Cal)). The notice which came up for consideration before the Division Bench in Rama Devi Agarwalla's case, [1979] 117 ITR 256 (Cal), was more or less similar and it is necessary to set out the said notice. " Notice under section 148 of the Income-tax Act, 1961, III(2)/762-a/A Income-tax Officer, III(2) Dated the 8th January, 1963. To, Smt. Rama Devi Agarwalla others, 3, Tarachand Dutt Street, Calcutta. Whereas I have reason to believe that your income/the income of the A.O.P in respect of which you are chargeable/assessable to tax for the assessment year 1947-48, has escaped assessment within the meaning of section 147 of the Income-tax Act, 1961: I, therefore, propose to assess/reassess/recompute the income/less depreciation allowance for the said assessment year and I hereby require you to deliver to me within 30 days from the date of service of this notice, a return in the prescribed form of /your income/the income of the A.O.P. in respect of the which you ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue that this point of invalidity of the notice has not been specifically taken in the petition. This question, however, is a pure question of law and the question turns on the interpretation of the notice itself and does not require any investigation into any question of fact. The question of law clearly goes to the very root as the point relates to the question of jurisdiction of the authority concerned. As the question is on, of pure law and raises the vital question of jurisdiction of the authority concerned to reopen the assessment, I am clearly of the opinion that the petitioner is entitled to urge this question at the hearing of the petition. If the authority concerned does not acquire jurisdiction in the absence of a valid notice being served, the entire proceeding will be without jurisdiction and void, and even consent on the part of the petitioner would confer no jurisdiction on the ITO. There cannot, therefore, be any question of any waiver. The decision of the Gujarat High Court in the case of CIT v. Bhanji Kanji's Shop [1968] 68 ITR 416 is of no assistance in the facts and circumstances of this case. In the said case the question of validity of the notice did not com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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