9911796707
TMI Blog1985 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... venue for all the three assessment years: "1. On the facts and in the circumstances of the case, the ld. CIT (A) has erred in entertaining the appeal of the assessee on the question of jurisdiction as the assessee never challenged the authority of the IAC of WT (Asst.) to proceed with these cases during the course of assessment proceedings relating to the asst. yrs. 1972-73, 73-74 and 1974-75. 2. On the facts and circumstances of the case, the ld. CIT (A) erred in annulling the assessments for the asst. yrs. 1972-73, 1973-74 and 1974-75 as the CIT (A) had no jurisdiction to entertain the ground raised by the assessee reading validity of assessment framed by the IAC (Asst.) of Wealth-tax". 3. We have reproduced the grounds of appeal above. At the outset, we would like to add that these appeals are under the WT Act, 1957 while in the second ground of appeal in the original grounds, the relief sought is that the orders of the ITO should be restored. As a matter of fact, the assessment orders passed are neither by the ITO nor by the WTO but by the IAC of IT (Asst.), Patiala whereas these should have been by the IAC of Wt (asst.) Patiala. The grounds of appeal by the Revenue, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 127 and under s. 125 (1) of the IT Act because s. 127 specifically provided that specific cases may be transferred under that section from an ITO to another ITO or from an ITO to another concurrently with an IAC and vice versa. It was, further contended that there was no provision in s. 127 for transfer of cases from the ITO to IAC of IT (Asst.) exercising exclusive power of assessment. In other words, the submission of the ld. counsel for the assessee was that s. 125 could not run into s. 127 and, therefore, the jurisdiction vested by the order of the CIT passed on 21st Dec., 1978 was vitiated. It was also stated that the exercise of the powers under the WT Act in view of the said order dt. 21st Dec., 1978 was all the more faulty because there was no proto-type of s. 125 (1) in the WT Act. The assessee's counsel also contended against the legality of the assessments made by the IAC of IT (Asst.) The CWT (A) taking into consideration the rival submissions held that he was of the view that the assessments were invalid for want of jurisdiction. He held that the WT Act and IT Act were two separate enactments. The provisions of IT Act were not fully imported in the WT Act. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the AAC of WT while under sub-s. (1A), the appeals can be filed before the CWT (A) in certain cases. He urged that the none of the provisions in this section authorises the assessee to go in appeal before the first appellate authority against the jurisdiction of the assessing officer. In other words, he urged that the issue regarding jurisdiction of the assessing officer could not be agitated before the CWT(A). He further submitted that at all an assessees was aggrieved about the jurisdiction of the assessing officer, he could challenge the same only by way of writ petitions before the High Court or the Supreme Court. He also submitted that no assessee had vested right to be assessed by a particular Officer and it was the exclusive jurisdiction of the administration to confer any officer with the priers of execution under the Direct Taxes Laws. He further urged that the second additional ground raised by the Revenue went to the root of the problem and, therefore, it should be admitted. In this connection referred to the decision of the Chandigarh Bench of the Tribunal in the case of Panipat Co-operative Sugar Mills vs. ITO (1982) 2 ITD 495 (Chd). He also referred to r. 11 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raised in additional grounds. In this connection he relied on the decision of the Gujarat High Court in the case of CIT vs. Orient Prospecting Co. (1983) 141 ITR 301 (Guj). According to him, the additional ground changeling the jurisdiction of the CWT (A) being a new item, could not be allowed to be raised otherwise the additional ground amounted to review application. Referring to the order of the Tribunal in the case of Panipat Sugar Mills, the ld. counsel for the assessee pointed out that the said order was dealing with a regular ground of appeal in the memorandum of appeal and not the additional ground. He further pointed out that the CWT (A) was competent to entertain the appeals against the orders of the assessing authority on the point of jurisdiction. 8. We have carefully considered the rival submission. In our opinion, the additional ground raised by the Revenue goes to the root of the problem. Rule 11 of the IT Tribunal Rules., 1963 authorises the Tribunal to admit additional ground of appeal. The Chandigarh Bench of the Tribunal in the case of Panipat Co-operative Sugar Mills took the following view: "Therefore, we are of the opinion that we cannot avoid looking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "23 (1) subject to the provisions of sub-s. (1A), any person— xx xx xx xx xx xx (c) denying his liability to be assessed under this Act. xx xx xx may appeal to the AAC against the assessment or penalty order, as the case may be, in prescribed form and verified in the prescribed manner." He further referred to sub-s. (1A) of s. 23 and pointed out that notwithstanding anything contained in sub-s. (1), any person objecting to an assessment or order referred to in cls. (a) to (h) (both inclusive) where such assessment or order has been made by the IAC in exercise of the powers or functions conferred on or assigned to him under s. 8AA may appeal to the CIT (A) against the assessment or penalty order as the case may be in the prescribed form and verified in the prescribed manner. He, therefore, pointed out that the CWT (A) had jurisdiction to entertain the appeals on jurisdiction of the AO under s. 23 (1A) (c) of the WT Act, 1957. He submitted that the denial has to be against being subject as the whole procedure for ascertaining and imposing liability on the taxpayer. A denial being against subject to a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation of income or determination of tax, because such things are already provided for the latter part of the same clause. Obviously it is used in the comprehensive sense to mean subjected to the whole procedure of ascertaining and imposing liability on the taxpayer and the liability was under the Act and not under any particular provision or individual. Similar view had been taken by their Lordships of the Punjab and Haryana High Court in the case of Chhat Mull Aggarwal and again in the case of Amrit Sports Industries (1984) 145 ITR 231 (P H) where it has been held that objection to assumption of jurisdiction by the Competent Authority can be taken in appeal, even if it was not specifically raised before the Competent Authority. In view of the above judicial pronouncements which have defined the scope of cl. (c) of s. 246 (a) of the IT Act, which is Pari materia with s. 23 (1) (a), (b) and (c) of the WT Act, we have no hesitation in accepting the submissions by the learned counsel for the assessee that the appeals on jurisdiction of the assessing officer for making assessment are maintainable before the CWT (A). We, therefore, do not find any merit in the second additional ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, supported the order of the CWT (A). 16. In our opinion, the issue is squarely covered by the above decision of the Madras High Court in favour of the assessee At page 213 in the headnotes, the observations are as under : "On a reference at the instance of the Revenue, the High Court rejected the Revenue's contention that once a notification is issued under the IT Act conferring powers of the ITO on the IAC (Asst.), the IAC (Asst.) would automatically assume jurisdiction as WTO under the WT Act and pointing out that, if that were the position, there would have been no necessity for making a provision like s. 8AA in the WT Act. The High Court held that concurrent power under the WT Act had to be conferred on the IAC (Asst.) by a separate notification under s. 8AA of the WT Act. The High Court found no reason to disagree with the Tribunal and saw no justification for directing a reference as sought by the Revenue." No authority to the contrary has been brought to our notice on behalf of the Revenue. The issue is squarely conferred by the above judgment of the Madras High Court against the Revenue. On the face of the above judgment, it is not considered necessary by u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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