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TMI Blog2025 (1) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... 60A (4) provides that the appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. However, the proviso to this sub-section states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. Usually, for a case to "involve" such a question, the same should have been raised before the original authority or at least the appellate authorities. When a question was never raised before the original authority or the appellate authorities, then, typically, it would not be easy to hold that such a question was involved and, therefore, should be framed by exercising the powers under the proviso to sub-section (4) of Section 260A. However, to the above general proposition, there are exceptions. Suppose a question of law goes to the root of the jurisdiction, and there is no necessity to investigate new facts or if there is no serious dispute on facts. In that case, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. 4. In the Income Tax Appeals, Mr. Mistri, learned Senior Advocate for the appellants urged framing of an additional substantial question of law, which according to him, is not only involved in these appeals but is a question which goes to the root of the jurisdiction of the Assessing Officer to make the assessment order. Mr. Mistri proposes the following question :- "Whether on the facts and circumstances of the case and in law, the assessment order under Section 143 (3) of the Act passed on a non-existent entity is bad in law, void ab-initio ? 5. Mr. Suresh Kumar, learned counsel for the respondents submits that he would like to oppose the framing of such an additional substantial question of law. He submits that since such a question is sought to be framed for the first time at the stage of final hearing, he may be given some time until 14 January 2025 to put forth his objection. 6. Accordingly, we list these matters on 14 January 2025 at 2.30 p.m. after the Public Interest Litigation which is specifically fixed tomorrow." 3. Today, we have heard Mr. Mistri, the learned senior advocate for the Appellant and Mr. Suresh Kumar and Mr. Vipul Bajpayee, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 1993-1994, there was nothing on record to show that the Assessing Officer was informed about the merger and consequent dissolution of the assessee-companies. They submitted that there was no prejudice because RIL represented the merged companies. They submitted that such an issue was never raised before the Commissioner of Income-Tax (Appeals) or ITAT. They submitted that this was not an issue that went to the root of the jurisdiction because there was a dispute about the Assessing Officer being informed of the factum of the merger. For all these reasons, they submitted that no leave should be granted to frame the above additional substantial question of law. 8. Section 260A (4) of the Income Tax Act, 1961 ("the IT Act)" provides that the appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. However, the proviso to this sub-section states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these two questions were required to be answered first by the ITAT. Therefore, the appeal was allowed, the decisions of the High Court and the Tribunal were set aside, and the matter was remanded to the Tribunal to decide the questions of law relating to limitation after affording an opportunity of hearing to both parties. 13. The above decision was distinguished in Ashish Estates & Properties (P.) Ltd. (supra) on the ground that the questions raised before the Apex Court were a question of jurisdiction. Therefore, the same was, in a sense, allowed to be raised for the first time even before the Hon'ble Supreme Court. However, the matter was remanded to the Tribunal for a decision on the said questions. 14. In Veena Estate (P.) Ltd. vs. Commissioner of Income-tax [2024] 158 taxmann.com 341 (Bombay), the issue of prejudice on account of the allegation concerning breach of natural justice was sought to be raised for the first time before the High Court. Since the issue of prejudice involved an investigation into facts and further, since such an issue was never raised before the original authority or the first appellate authorities, this Court did not permit such an issue to be ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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