2017 (4) TMI 809 - AT - Income Tax

Tribunal invalidates protective assessment, underscores jurisdictional importance.

Nita Donald Sequeira Versus Income tax officer-17 (2) (4) (Formerly ITO-12 (2) (4) ), Mumbai.

Nita Donald Sequeira Versus Income tax officer-17 (2) (4) (Formerly ITO-12 (2) (4) ), Mumbai. - TMI Issues Involved:1. Validity of protective assessment by the Assessing Officer regarding the sale of immovable property.2. Jurisdictional issue of protective assessment without a substantive assessment.Issue 1: Validity of Protective Assessment:The Assessee challenged the order of the Assessing Officer (AO) regarding the validity of the protective assessment passed concerning the sale of immovable property. The AO determined the Assessee's income at Rs. 2.05 crores based on the sale of property. The First Appellate Authority (FAA) held that the capital gain from the sale of a part of the property should be taxed in the Assessee's hands. The Authorized Representative (AR) argued that the Assessee was not the owner of the property in question and had not received any sale proceeds. The Departmental Representative (DR) supported the AO's order. The Tribunal found that the AO made a protective assessment without a substantive assessment in the case of the Assessee. The Tribunal cited legal principles governing protective assessments and held that the protective assessment passed by the AO was invalid and not in accordance with the law. Consequently, the Tribunal decided in favor of the Assessee on this issue.Issue 2: Jurisdictional Issue of Protective Assessment:The Tribunal addressed the jurisdictional issue of a protective assessment without a substantive assessment. The FAA had not dealt with the jurisdictional issue of the nullity of the protective assessment in the absence of a substantive assessment. The Tribunal emphasized that jurisdictional issues must be adjudicated first, as an order without jurisdiction is not valid. Citing legal precedents, the Tribunal explained that a protective assessment cannot survive without a substantive assessment. The Tribunal held that the AO was not justified in passing a protective order without a substantive assessment. Therefore, the Tribunal reversed the FAA's decision and ruled in favor of the Assessee on this issue as well.In conclusion, the Tribunal allowed the Assessee's appeal, finding in her favor on both the validity of the protective assessment and the jurisdictional issue of passing a protective assessment without a substantive assessment. The Tribunal emphasized the importance of following legal principles and ensuring that assessments are conducted in accordance with the law.