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TMI Blog2020 (1) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 147 of the Act is vitiated. It is also the categorical case of assessee that TDS obligations under s.194C of the Act were duly met and challans for payments were also placed before lower authorities. The entire reassessment proceedings, thus, is without jurisdiction and liable to annulled. The consequent re-assessment order is also therefore liable to be struck down and cancelled as bad in law. Objection on behalf of the Revenue that challenge to jurisdiction u/s 147 has been raised for the first time before the Tribunal - It is well settled that the question of lack of jurisdiction is pure question of law capable of being adjudged on be basis of material on record. There is no estoppel available to the Revenue on the ground that assessee did not raise the question of jurisdiction before the lower authorities. Estoppel cannot give jurisdiction over a matter which is otherwise lacking. If an authority is found to have no jurisdiction to invoke reopening of a completed assessment, the consent or waiver can never give the jurisdiction to the authority concerned. Such view has been expressed J. S. Parker [ 1973 (2) TMI 25 - BOMBAY HIGH COURT] P. V. Doshi vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 14-Twas bad in law especially in view of the fact that the original order u/s 143(3) had already covered the point of TDS deducted and deposited u/s 194C. 7. For that the CIT (A) has erred in not considering the fact that column 27 (a) of Form 3CD of the audit report specifically mentions that TDS provision has been properly complied. 8. For that the confirmation of addition at ₹ 3,51,98,334/- is illegal, and beyond all canon of justice. 3. The assessee in the instant case has challenged the action of the AO both on merits as well as on the point of unlawful usurpation of jurisdiction under s.147 of the Act. 4. Since the assessee has raised legal question on usurpation of jurisdiction by the Assessing Officer (AO) to reopen the completed assessment in the instant case, it would be pertinent to deal with the aforesaid question at the outset. 5. The learned AR for the assessee at the outset submitted that the AO has wrongly assumed the jurisdiction for making reassessment by issuing notice under s.148 of the Act without authority of law. The Ld.AR submitted that the ingredients of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were not disclosed fully and truly which has resulted in alleged escapement of income. It was thus contended that the AO has wrongfully assumed the jurisdiction vested under s.147 of the Act without meeting legal requirements. On merits, the learned AR for the assessee referred to the written submissions made before the CIT(A) as reproduced in para 5 of appellate order and pointed out that the requirements of Chapter XVII towards vicarious liability placed upon the assessee has been duly complied with and the provisions of Section 40(a)(ia) of the Act for disallowance of expenses are not attracted. 6. The learned DR, on the other hand, relied upon the action of the AO on the issue of validity of usurption of jurisdiction under s.147 of the Act. It was submitted that the assessee has incurred staggering amount of expenses pegged at ₹ 2,19,94,327/- on account of loading charges/unloading charges and labour expenses. The assessee has neither deducted TDS under s.194C of the Act on such payments nor filed any evidence as obligated under the provisions codified in Chapter XVII-B of the Act. In the circumstances, the AO has correctly reopened the assessment in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessment was thereafter framed wherein no disallowance was made in consequence of aforesaid inquiry. 7.3. Subsequently, a notice under s.148 of the Act has been issued after approval of the Pr.CIT under s.151 of the Act on 30.03.2017 making out a case of purported infringement of section 194C of the Act ostensibly on review of existing records. In consequence of relook at records, the AO appears to have recorded reason for re-opening the completed assessment after four years from the end of the relevant AY 2010-11 as noted in earlier paras. 7.4 In the background of aforesaid facts, we now take notice of the reasons recorded as reproduced earlier. A bare perusal of the reasons recorded suggests that the AO has propelled himself to reopen the assessment for the simple reason that the assessee is found to have not complied with the provisions of Chapter XVII-B of the Act including Section 194C of the Act thereunder. We do not find any reference to the assessment made under s.143(3) of the Act earlier in the reasons so recorded. We also do not find any allegation in the reasons recorded against the assessee that income has escaped assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly all material facts necessary for assessment of the assessee for the relevant assessment year. We do not find anything in the reasons recorded which goes to demonstrate that the assessee has failed to disclose any material fact relevant for assessment in the original proceedings. As a matter of fact, there is no allegation of the AO on this score in the reasons recorded as noted above. We do not find anything on record to show as to what material facts remained to be disclosed by the assessee in the original assessment proceedings. Significantly, the re-assessment order passed under s.147 of the Act also does not portray any concern of the AO on this aspect. Ostensibly, in the absence of an express allegation as a starting point, the conditions stipulated under first proviso under s.147 of the Act are not complied with. In this event, where embargo placed by the first proviso could not be overcome, the legitimacy of notice issued under the provisions of section 147 of the Act is vitiated. It is also the categorical case of assessee that TDS obligations under s.194C of the Act were duly met and challans for payments were also placed before lower authorities. The entire reassessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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