TMI Blog1978 (7) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... a Reddy by the ITO at Nellore but no " returns " were submitted. Therefore, ex parte assessment orders on July 24, 1973, followed. The assessment orders, however, were questioned in appeal and it transpired in the appeal that the AAC on March 14, 1974, " ordered a substantial relief ". Aggrieved thereby the revenue approached in further appeal the Tribunal and in that proceeding cross-objections were lodged by the assessee. Before the appellate authority and in the cross-objections before the Tribunal (the order is dated October 31, 1975,) the assessee without having raised a caveat as to territorial jurisdiction, unsuccessfully objected to the jurisdiction of the ITO at Nellore. Then followed the reference at the instance of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the place of assessment could be taken before the appellate authority when no such objection was raised before the Income-tax Officer? " The answer in our view has to be found in the scheme of s. 124 of the Act. Similar questions arose under the repealed Act, XI of 1922. In the case of Dayaldas Kushiram v. CIT [1940] 8 ITR 139, the Bombay High Court construed s. 64 of the Act to have had invested no power in the revenue but soon the amending Ordinance IX of 1939 followed and sub-s. (5) was added. Section 64 was considered by the Allahabad High Court in Dina Nath Hem Raj v. CIT [1927] ILR 49 All 616 ; AIR 1927 All 299 and by the Supreme Court after the amendment in Rai Bahadur Seth Teomal v. CIT [1959] 36 ITR 9. Kapur J. observed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Income-tax Officer, then the Income-tax Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (4) before assessment is made. " A month's time is prescribed " to begin " with " at the beginning " for the assessee to object to the jurisdiction of the assessing authority after having submitted the return under s. 139 if assessment " is not over " before thirty days. If objection is raised the "authority" is to " refer "-- unless the objection is sustained--to the Commissioner, the authority under sub-section (4) of the section. Thus, the officer is empowered to consider the caveat and, in the event the officer is not satisfied, the Commissioner is entrusted the duty to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t touch upon the question at issue in the instant case. In the case of inherent lack of jurisdiction before an authority, the question of jurisdiction can be raised at any stage of the enquiry and even in collateral proceedings is well known. The objection based on territory is not in that sense a fundamental question. The I.T. Act (s.124) evolved a scheme with a view to work out such objections. A procedure is laid down in sub-s. (5) and (6) of s. 124 : could it be bypassed and said that the assessee is clothed with the right to object to the jurisdiction of the officer and big authority without recourse to the procedure in sub ss. (5) and (6) ? The answer having regard to the scheme, in our view, should be in the negative. The legal max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 1971-72. In response to these notices the assessee did not choose to file the returns. (He, however, filed some voluntary returns in the status of Hindu undivided family. The Income-tax Officer was at pains to intimate to the assessee that the reopening of the earlier assessments was done in his individual assessments and the individual file was transferred to the Income-tax Officer, Nellore)." and in the order of the Tribunal on October 31, 1975, it is as of fact found " returns " were not : " In response to these notices, the assessee did not choose to file the returns. He, however, filed some voluntary returns in the status of Hindu undivided family." (1964-65 to 1969-70). Therefore, on the facts it is not possible to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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