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TMI Blog1997 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee; and (ii) are not the observations contrary to one another?" The following are the questions raised for opinion of this court in I.T.R. No. 125 of 1994 : "1. Whether, on the facts and in the circumstances of the case and also on a consideration of the vakalath, common law principle and the subsequent conduct of the assessee in the case, the Tribunal is right in law and fact in holding,--- (i) the advocate was not authorised to or empowered to sign the petition praying for reopenment of the assessment order under section 146 of the Income-tax Act for and on behalf of the assessee? (ii) reopenment of the assessment under the provisions of section 146 resulting in the cancellation of the original assessment made under section 144 giving rise to the impugned assessment is void ab initio? 2. Whether, on the facts and in the circumstances of the case and since initiation of assessment proceeding starts either on issue of notice under section 139(2)/148 or on furnishing of return under section 139(1) the reopening of assessment under section 146 of the Income-tax Act,--- (i) is initiation of proceedings; (ii) the Tribunal is right in law in characterising and equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed I. T. A. No. 135/Coch of 1988 against that portion of the order of the first appellate authority where relief was granted to the assessee. The assessee had filed a cross-objection in I. T. A. No. 135/Coch. of 1988. About four years after presentation of the appeal the assessee filed certain additional grounds of appeal on August 5, 1991. A second set of additional grounds was preferred on September 5, 1991, and a third set of additional grounds on January 2, 1992. In these additional grounds, the assessee took up the contention that the advocate who had filed the petition on behalf of the assessee under section 146 had no authority to present such a petition. The Income-tax Officer should not have entertained the petition nor allowed the same by setting aside the original assessment passed under section 144 of the Income-tax Act. The order passed by the Income-tax Officer setting aside the original assessment under section 144 should be treated as null and void and, therefore, the assessment order passed by the Income-tax Officer dated March 27, 1987, is without jurisdiction. Certain other grounds on the merits were also taken as additional grounds. The Tribunal admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and knowledge of the assessee and as a result of such action taken by his advocate without consent, the assessee has suffered great loss. Learned counsel further pointed out that even in the cross-objection filed to the appeal filed by the Revenue, this point has been taken by the assessee before the Tribunal. Referring to the terms of the vakalath, learned counsel would contend that it has not specifically authorised the advocate to file a petition under section 146 of the Income-tax Act on behalf of the assessee. If that be so, any proceeding taken by the assessing authority on the basis of such a petition cannot survive legal scrutiny and, therefore, the Tribunal was fully justified in holding that the order dated September 24, 1984, was void in the eye of law so also further assessment dated March 27, 1987. The terms of authorisation as found in the vakalath executed by the assessee in favour of his advocate who represented him in the assessment proceedings are quoted in paragraph 8 of its order as follows : "to appear for me/us, in the above appeal/assessment proceedings/to conduct the same and all proceedings that may be taken in respect of any application connected wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee had filed an appeal before the Commissioner of Income-tax (Appeals). No complaint was raised before the first appellate authority where the assessee was represented by a chartered accountant that the assessee was not aware of the ex parte assessment proceedings under section 144 and also the petition filed by the advocate for the assessee under section 146. If the story put forward by the assessee is correct, a mere reading of assessment order dated March 27, 1987, would have alerted him as it referred to the earlier proceedings in its first paragraph itself. We, therefore, find it difficult to accept the contention raised by the assessee that he came to know about the ex parte assessment under section 144 and also the proceedings under section 146 only at a later stage that is after filing the appeal before the Income-tax Appellate Tribunal. We are of the view that the present complaint raised by the assessee is only the result of an after thought. Even if the assessee's advocate had filed the petition under section 146 without his knowledge or consent, the subsequent conduct of the assessee would show that he had ratified the action taken by his advocate. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the assessee. We find no public interest involved in this proceeding which would stand in the way of the assessee waiving his objection. We are, therefore, of the view that the order passed by the assessing authority under section 146 on September 24, 1994, is not bad for any inherent lack of jurisdiction even if there is any irregularity in the manner in which the application was filed under section 146. The assessee is estopped by his conduct from raising an objection on that basis at the second appellate stage after having participated in the fresh assessment proceedings and after having failed to take any objection on that ground before the first appellate authority. We are, therefore, of the view that the Tribunal has erred in finding that the order dated September 24, 1984, passed by the assessing authority under section 146 is bad in law and the consequential fresh assessment order dated March 27, 1987, cannot also sustained. As mentioned earlier, the Tribunal had not gone into the merits of the other contentions raised by both sides. Since we are holding that the fresh assessment order is not vitiated by lack of jurisdiction, it is for the Tribunal to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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