9911796707
TMI Blog2013 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate upon when it was not raised in terms of Section 124 before the Assessing Authority. Whether the reasons for reopening are sufficient to hold that there was no nexus between reasonable belief and escapement of assessee's income - Held that:- A feeble attempt was made by the assessee that the Tribunal has decided the appeal on merits also but on consideration it is find that the Tribunal itself has noted that the findings recorded by it are only prima facie findings. Therefore, argument of assessee in this regard is not acceptable. Thus the order of the Tribunal cannot be allowed to stand. All the questions of law are decided in favour of the department and the matter is restored back to the ITAT to revisit and redecide the appeals filed by the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner of I.Tax, Varanasi did not have the jurisdiction to pass the assessment order, particularly when it was raised before the Tribunal for the first time. (3)Whether the Tribunal erred both in law and on facts in holding that the assessment order is without and jurisdiction and hence a nullity in view of the statutory provisions provided in Ss. 124(2), (3) (a) and (b) and Ss. 124(4) of the I.Tax Act, 1961 whereby the assessee was not entitled to raise any question relating to the jurisdiction of the Assessing Officer and if question of jurisdiction is raised, it shall be determined by the Commissioner, Chief Commissioner, the Director General or the CBDT, as the case may be, instead of being raised as a preliminary objection for the first time before the Tribunal. (4)Whether having regard to the basic fact that due to internal administrative changes made in May, 1997 whereby the charge of C.I.T. Varanasi was created, and vide Notification No. 54 dated 30.5.1997 issued by Chief C.I.T. Lucknow, the CIT Varanasi was assigned territorial jurisdiction over Gorakhpur Range thereby bringing cases over income or less of Rs.10 lakhs or above in the jurisdiction of Jt. CIT Varan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, could, it not have been covered and serve by s.292B of the Income-Tax Act? (10)Whether the Tribunal's order dated 26th June 2002 having been decided only on preliminary issues without going into he merits of the case and without giving any findings on the various points raised by the Revenue relating to the Profit earning activities of the assessee and siphoning off of funds, can be said to be legally justifiable and legally sustainable order in the eyes of Law." Heard Sri Shambhu Chopra, learned counsel for the appellant and Sri Ashish Bansal, learned counsel for the assessee-respondent. Question Nos. 1 to 5 :- Questions no. 1 to 5 are intermingled and basically they relate to the question whether the question of jurisdiction of the Assessing Authority not raised before, it could be raised for the first time in second appeal before the Tribunal. Therefore, we are proposing to consider the question nos. 1 to 5 together. Learned counsel for the appellant submits that in view of the Chapter XIII, B.─Jurisdiction of the Income Tax Act, 1961, question of jurisdiction is primarily required to be agitated first before the Assessing Authority itself, within the period pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under the first proviso to section 115WF or under the first proviso to section 144] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (4) Subject to the provisions of sub- section (3), where an assessee calls in question the jurisdiction of an- Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub- section (2) before the assessment is made." Section 124(3)(a) provides that no person shall be entitled to call in question the jurisdiction of an Income-tax Officer after the expiry of one month from the date on which he has made a return under sub-section (1) of section 139 or after the completion of the assessment, whichever is earlier. A perusal of the assessment order would show that no such question of jurisdiction of the Joint Commissioner of Income Tax (Asstt.) was raised before it. This factual aspect of the case could not be disputed even by the learned counsel for the respondent. The circumstances under which the file was transferred from Income Tax Officer, Azamgarh to Joint Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board lies. It necessarily excludes any other Court or authority. Complete machinery for determination of place of assessment or the authority for assessment is provided for under Section 124. Respondent in the present case submits that there is a illegal assumption of jurisdiction as the officer who made assessment had no jurisdiction at all to make the assessment. Opportunity was given by the Tribunal to the department to produce the transfer order transferring the case from office of Income Tax Officer, Azamgarh to Joint Commissioner of Income Tax (Asstt.), Varanasi but no such order was produced. In any case, no opportunity of hearing before passing of the transfer order was given. The answer to the question posed by the respondent is pure and simple. The scheme of the Act shows that no appeal in regard to the place of assessment is contemplated under the Act. Under Section 124, a question as to the place of assessment, when it arises is determined by the Commissioner, by the Commissioners if more than one Commissioner is involved and then by the Board. The Apex Court in the case of Seth Teomal (supra) has quoted with approval a judgment in the case of Wallace Brothers & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also Section 124 thereof. Probably, attention of the Tribunal was not drawn to the relevant statutory provisions by the department. Our above view find support from the following decisions of this Court :-- (1) Commissioner of Wealth Tax versus Ravi Malhotra, (2007) 292 ITR 171 ; and (2) Hindustan Transport Co. versus Inspecting Assistant Commissioner of Income-tax and another, (1991) 189 ITR 326. After close of the argument, learned counsel for the assessee-respondent has filed photo copies of the following judgments. (1) Ajantha Industries and others v. Central Board of Direct Taxes, (1976) 102 ITR 281 ; (2) National Thermal Power Co. Ltd. v. Commissioner of Income Tax, (1998) 229 ITR 383 ; (3) West Bengal State Electricity Board v. Dy. Commissioner of Income Tax, (2005) 278 ITR 218 ; (4) Commissioner of Income Tax v. Bharat Kumar Modi, (2000) 246 ITR 693 ; (5) Commissioner of Income-tax, Meerut versus Hari Raj Swarup & Sons, (1982) 138 ITR 462; (6) Swaran Yash v. Commissioner of Income Tax, (1982) 138 ITR 734 ; (7) Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax, (1971) 82 ITR 147 ; (8) Income Tax Officer, I Ward v. Lakhmani Mewal Das, (1976) 103 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare Society, Azamgarh and earns income from it. In addition, the assessee purchased buses etc. and invested huge amount. For this institution, building is also constructed. Since the assessee earns huge income and invested in buses and building, therefore, I have reason to believe that the assessee in the years 1993-94, 94-95, 95-96 has concealed the income. Therefore, notice u/s 148 of the Income-tax Act is issued for the assessment years 1993-94, 94-95, 95-96." The Tribunal has held that these reasons do not meet the requirement of law. After making such observations, it proceeded to consider certain well known judgments of the Apex Court and concluded that in the case of the assessee before it, it is clear that no reason has been mentioned by the A.O. to come to the conclusion that the income has escaped income. We find that the Tribunal has not considered the matter in depth. The issue has been dealt with by ignoring the background facts of the case. The fact remains that no such objection was made before the authorities subordinate to the Tribunal. The assessee filed the return of its income and participated in the assessment proceedings. During the course of reassessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
