TaxTMI 
TaxTMI 
2015 (3) TMI 851
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....nitio without appreciating the fact that the order under dispute was passed in pursuance of an order passed by the Tribunal itself? (ii) Whether the Tribunal was justified in law in accepting the additional grounds of the assessee which were raised after a lapse of 5 years of filing of second round of appeal and 14 years after the search without any justification by the assessee for such delay? (iv) Whether the Hon'ble Tribunal was justified in law in accepting the contention raised by assessee at a later stage that block assessment failed for want of jurisdiction even though the facts of the case clearly shows that the assessee had responded to notices, filed return, participated in block assessment proceedings and accepted the assessment proceedings and further participated in set-aside assessment proceedings and suffered an assessment as per the direction of Hon'ble Tribunal, without raising such contention." 3. As such, broad facts show that initially, there were assessment orders by AO for the year 1996. Such assessments were carried in appeal before the Tribunal since they were block assessment and the Tribunal disposed of the appeal by sending back the matter to t....
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....peal, which shall be considered in accordance with law and on its own merits." 4. It appears that thereafter, the Tribunal heard all the appeals and passed common judgment and order, which is impugned in all the respective tax appeals. The reasons recorded by the Tribunal at para Nos.6 to 8 for ready reference can be reproduced as under: 6. After hearing both the parties in respect of preliminary contentions raised by the revenue, we are of the considered opinion that these objections should have been raised by the revenue at the time of admission of the additional ground by the Hon'bIe Tribunal. Since admission of additional ground has been upheld by the Hon'ble High Court by observing as under:- "However it is observed that in case any order is adverse to the petitioner, it will always be open to the petitioner to contend and raise the ground which is raised in the present Special Civil Application at the time of filing of the appeal which shall be considered in accordance of law and on its merit." We are refraining ourselves from adjudicating these preliminary objections raised by the revenue. 7. Now coming to the merits of the additional ground, after hearing both ....
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....itiated u/s. 158BC of the Act against them are void ab-initio. In the case CIT v. Ms. Pushpa Rani [2004] 136 taxman 627 Hon'ble High Court of Delhi has held that where no search warrant is issued in name of assessee proceedings initiated u/s. 158BC are abinitio void and without jurisdiction. In the case laws relied by the revenue, names of the persons assessed were there in the authorization and therefore in those cases assessment framed by Assessing Officer were held to be valid. In view of the above, additional ground raised by the assessee is allowed." 5. The aforesaid shows that the Tribunal on verification of the Panchnama prepared by the revenue at the time of search, found that the warrant is in case of Arun Choksi, Sanjay Choksi and family and Jolly Tea (India) Ltd. and Jolly group of companies and it was not on the name of any of the assessees, who were appellant before the Tribunal. The Tribunal found that in absence of the name of the assessees on the warrant authorizing search, the proceedings under Section 158BC cannot be initiated. The Tribunal also recorded that there is no dispute about the fact that the names of the assessees are not appearing in the authoriza....
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....tted to be raised by the Tribunal. He submitted that as per the revenue, even before the Tribunal, it remained undisputed that the names of the assessee were not there on the authorization/warrant and once the condition precedent was not satisfied for block assessment under section 128BC, the Tribunal was justified in allowing the appeals. He therefore, submitted that when the issues are already covered by the statute itself and the abovereferred decision of the Apex Court and this Court, it cannot be said that any substantial questions of law would arise. Hence, this Court may dismiss the appeals. 8. We may record that the order dated 17.8.2010, copy whereof is produced at Annexure E, whereby additional ground, which was permitted to be raised and admitted, remained unchallenged by the revenue. Special Civil Application Nos.9044 of 2013 to 9053 of 2013 were directed against the order dated 8.11.2012, which was only for rectification of the reasons recorded and that too only first part, but it was not for rectification of any additional ground or the ultimate order for permitting additional ground and the admission of such ground. If a strict view is taken, one may say that the re....
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....order or a nullity is now well brought out in the decision between invalidity and nullity is now well brought out in the decision in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300, 1304, where their Lordships had gone into this material question as to whether the act in breach of the mandatory provision is per force a nullity. The passage in Macnamara on Nullities and Irregularities, referred to in Ashutosh Sikdar v. BihariLalKirtania [1907] ILR 35 Cal 61 [FB], at page 72, was in terms relied upon as under: "....no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated." Thereafter, their Lordships pointed out that whether a provision fell under one category or the other was not easy of discernment, as in the ultimate analysis, it depended upon the nature, scope and object of t....
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....ing under the Act. Further proceeding, at page 2071, their Lordships pointed out the settled legal distinction between the provisions which conferred jurisdiction and provisions which regulated procedure, because jurisdiction could neither to waived nor treated by consent, while a procedural provision could be waived by conduct or agreement. Their Lordships pointed out that in that case the assessee could not be said to have waived the provisions of the stature because there could not be any waiver of a statutory requirement or provision which went to the jurisdiction of assessment. The origin of assessment was either as assessee filing a return as contemplated in the Act or an assessee being called upon to file a return as contemplated in the Act. The respondents challenged the Act. The order of injunction did not amount to a waiver of the statutory provisions. The issue of a notice under the provisions of the Act related to the exercise of jurisdiction under the Act in all cases. The learned Chief Justice in terms pointed out that the revenue statutes are based on public policy. The revenue statutes protect the public on the one hand and confer power on the State on the other. Th....
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....ssets are requisitioned under section 132A, in the case of any person, then:- (a) the Assessing Officer shall (i) in respect of search initiated or books of accounts or other documents or any assets requisitioned after the 30th day of June, 1995 but before the 1st day of January, 1997, serve a notice to such person requiring him to furnish within such time not being less than fifteen days; (ii) in respect of search initiated or books of accounts or other documents or any assets requisitioned on or after the 1st day of January, 1997 serve a notice to such person requiring him to furnish within such time not being less than fifteen days but not more than forty-five days; as may be specified in the notice a return in the prescribed form and verified in the same manner as a return under clause (1) of subsection (1) of section 142, setting forth his total income including the undisclosed income for the block period : Provided that no notice under section 148 is required to be issued for the purpose of proceeding under this Chapter: Provided further that a person who has furnished a return under this clause shall not be entitled to file a revised return; (b) the Assessing Officer ....
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....st such other person. 8. The conditions precedent for invoking the provisions of Section 158BD, thus, are required to be satisfied before the provisions of the said chapter are applied in relation to any person other than the person whose premises had been searched or whose documents and other assets had been requisitioned under Section 132A of the Act. 9. A taxing statute, as is well-known, must be construed strictly. In Sneh Enterprises v. Commissioner of Customs, New Delhi [(2006) 7 SCC 714], it was held: "While dealing with a taxing provision, the principle of 'Strict Interpretation' should be applied. The Court shall not interpret the statutory provision in such a manner which would create an additional fiscal burden on a person. It would never be done by invoking the provisions of another Act, which are not attracted. It is also trite that while two interpretations are possible, the Court ordinarily would interpret the provisions in favour of a tax-payer and against the Revenue." Yet again in J. Srinivasa Rao v. Govt. of A.P. & Another [2006 (13) SCALE 27], it was held : "In a case of doubt or dispute, it is wellsettled, construction has to be made in favour of t....