TaxTMI 
TaxTMI 
2013 (6) TMI 191
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....rred to the Deputy/Joint Commissioner of Income Tax (Asstt.) Special Range Varanasi who was having jurisdiction as the return of loss for the assessment year 1997-98 was more than Rs.10 Lakhs. The assessee participated in the assessment and reassessment proceedings and claimed exemption initially under Section 11 and subsequently under Section 10(22) of the Act. The claim of exemption was denied by the Assessing Authority for the reasons recorded in the assessment order and the assessment was completed by determining the positive income for all these assessment years. The matter was carried in appeal before the Commissioner of Income Tax (Appeal), Varanasi. All of them were dismissed by a common order dated 10th January, 2002. The assessee carried the matter in further appeal before the Tribunal who allowed all these appeals by the order under appeal holding that the Assessing Officer who framed the assessment/reassessment proceedings was not the competent authority and the reasons recorded for initiating the reassessment proceedings are bad. Hence, the present appeal. Present appeal has been admitted on the following substantial questions of law as framed in the memo of appeal ....
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....visions relating thereto and in view off the administrative charges made in May 1997 whereby the jurisdiction of the C.I.T., Varanasi was enlarged to cases of Gorakhpur Range thus bringing the assessee within the jurisdictional area of the Joint C.I.T., Varanasi who was the Assessing Officer in the instant case, was any opportunity of hearing to the assesse necessary and was any order conferring jurisdiction upon the Assessee Officer necessary in the eyes of Law? (6)Whether on the facts and circumstances of the case, was the Tribunal legally justified in holding that there was no nexus between reasonable belief and escapement of the assessee's income and consequently the notices u/s 148 are void ab-initio being based on imagination, presumptions and assumptions of the Assessing Officer. (7)Whether having regard to the fact that Assessing Officer had duly recorded reasons before issuing notices u/s 148 and had formed a belief that the assessee was running the educational institutions for profit and had undisclosed investments in fixed assets, could it be held by the Tribunal that the Assessing Officer had not recorded any valid reasons regarding the escapement of the assessee'....
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.... submits that question of jurisdiction of the Assessing Authority goes to very root of the matter and as such, it can be raised at any stage in appeal before the Tribunal also. He further submits that sufficient opportunity was afforded by the Tribunal to establish that the authority who passed the assessment order was competent authority by producing the relevant documents but the department failed. He further submits that the notice of assessment was issued by the I.T.O. Azamgarh and no opportunity before transfer of cases to the Joint Commissioner of Income Tax (Asstt.) Special Range, Varanasi, was afforded. Considered the respective submissions of the learned counsel for the parties and perused the record. A perusal of the assessment order would show that the assessee filed the return in response to the notice issued to it. Sub-section (3) & (4) of Section 124 reads as follows: "Jurisdiction of Assessing Officers. 124. (1) ....................................................................... ....................................................................... (2) ....................................................................... ......................
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.... common order." The question of jurisdiction could have been raised before the Assessing Officer within the period of one month from the date of filing of return as envisaged under sub-section (3)(a) of Section 124, but it was not raised. Even after assessment before the First Appellate Authority, any such plea was not put forward. This fact finds mention in para-5 of the order of C.I.T. that no objection regarding jurisdiction or otherwise was raised during all these proceedings. The A.O. has passed the assessment order on the basis of the return filed by the assessee and details furnished by the assessee during the proceedings in response to notices under Section 143(2) and 143(1). The Apex Court in Rai Bahadur Seth Teomal versus The Commissioner of Income Tax and the Commissioner of Exces, AIR 1959 SC 742 considered the similar provisions as they existed under the Income Tax Act, 1922 in the light of its earlier pronouncement and of the Fedral Court. Heading of Section 64 of old Income Tax Act was "place of assessment" and its third proviso reads as follows: "Provided further that if the place of assessment is called in question by an assessee the Income Tax Officer sha....
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....nion it could not be. The scheme of the Act shows that no appeal in regard to the objection to the place of assessment is contemplated under the Act. Under s. 64(3) of the Act a question as to the place of assessment, when it arises, is determined by the Commissioner. Any such order cannot be made a ground of appeal to the Appellate Assistant Commissioner under s. 30 of the Act which provides for appeals against orders of assessment and other orders enumerated in s. 30 but no appeals is there provided against orders made under s. 64(3). Similarly appeals to the Appellate Tribunal which lie under s. 33 of the Act also do not provide for any appeal on the question of the place of assessment. In Wallace Brothers' case (3) at p. 79 Spens, C. J., after referring to s. 64(3) and the proviso thereto said: " These provisions clearly indicate that the matter is more one of administrative convenience than of (1) (1927) I.L.R. 49 All. 616. (2) [1936] 5 I.T.R. 739. (.3) [1945] F.C.R. 65: 13 I.T.R. 39.jurisdiction and in any event it is not one for adjudication by the Court............... This confirms us in the view that the scheme of the Act does not contemplate an objection as to the place o....
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....laid down therein is not subject matter of consideration in any of these decisions. They laid down broad proposition of law that question of jurisdiction and/or question of law can be raised at the subsequent stages of the proceedings i.e. in appeal or revision. In view of specific provisions as contained in Section 124 as already discussed above, the applicability of above broad proposition of law stands excluded. For stance, the case of Ajantha Industries (supra) has been decided in the light of section 127 and not 124 of the Act. The contention that no opportunity of hearing was given before transferring raised for the first time before the Tribunal could not be substantiated by producing any evidence. The assessee was the appellant before the Tribunal and it was for him to establish that before transferring the cases, no opportunity of hearing was given and in which he failed. Mere raising the argument which requires determination of fact in absence of any supporting material is liable to be ignored. In view of the above, we answer all the five substantial questions of law in favour of the department and against the assessee by holding that the question of jurisdiction of....