9911796707
TMI Blog1979 (3) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1956-57. The petitioner filed a petition under s. 146 of the Act for reopening the said assessment but the said application was rejected on 24th of February, 1970. The petitioner preferred an appeal against the said assessment order on various grounds before the AAC. From the grounds of appeal, it appears that no question of limitation was raised before the AAC. The AAC passed his order on 11th of December, 1975, rejecting the appeal. It also does not appear from his order that any such contention was raised before him. Thereafter, the petitioner preferred an appeal before the Income-tax Appellate Tribunal. The grounds of appeal before the AAC do not show that any such question of limitation had been raised. The Income-tax Appellate Tribunal set aside the order of the AAC and restored the matter to his file for fresh consideration on the ground that the AAC has not given any finding with regard to the contentions raised before him. Accordingly, the appeal was treated as allowed. It appears from the order of the Tribunal that the representative of the petitioner appearing for the first time sought to submit before the Tribunal that the assessment was barred by the law of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITO is barred by limitation or not is not a pure question of law. This question depends on ascertainment of various facts including the question of date of service of notices. He has submitted that these questions are questions of fact, viz., as to whether the notice was served within the particular date or not, and whether the papers relating thereto were not part of the records before the Tribunal. Accordingly, it cannot be said that this could be ascertained from the records before the Tribunal itself. It was also submitted that the petitioner did not make any application bringing the true facts relating to the question before the Tribunal. The contention was raised before the Tribunal by the petitioner's representative. Under these circumstances, the Tribunal was not bound to go into this question. In any event, he has submitted that the matter has been remanded by the Tribunal and if the law entitles him to do so the petitioner would be entitled to agitate the same before the AAC, but it cannot be said that in the facts and circumstances of this case the Tribunal has acted wrongly. On the question of the validity of the order of the ITO and the AAC Mr. Sengupta has said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. In the present case, there is no order in existence which prejudicially affects the petitioner on account of the decision of the Tribunal not to allow the petitioner to urge the point of limitation before the same. It is true that the statutory remedy provided is no bar when it is a question of jurisdiction. However, the court in its writ jurisdiction is not bound to consider such points in all the cases. Whether the assessment proceedings in the present case is barred by limitation or not is not purely a question of law. It is a mixed question of fact and law. The Tribunal has not made any error of law in not considering this question at that stage. There is no question of the Tribunal refusing to exercise jurisdiction. Even if it is a question of jurisdictional fact, this court is not bound to go into this question itself. Even the jurisdictional fact should be left to be investigated into by the subordinate authority at the first instance. In my opinion, the petitioner is not entitled to agitate this point at this stage. Further, the petitioner is not entitled to agitate the question of jurisdiction of the ITO and the AAC on the ground of limitation because he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions to the High Court will be permitted when questions of infringement of fundamental rights arise or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they did not possess are only illustrative and not exhaustive. Where a Tribunal has acted contrary to the principles of natural justice, the High Court can properly exercise its power to issue a writ. This has no application in the facts of the present case. In the case of CIT v. Mahalakshmi Textile Mills Ltd. [1967] 66 ITR 710, the Supreme Court held that under the provisions of s. 34 of the old Act there is nothing in the I.T. Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions, whether of law or of facts, which relate to the assessment of an assessee may be raised before the Tribunal. If for reasons recorded by the departmental authorities in respect of a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. The right of the assessee to relief is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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