TaxTMI 
TaxTMI 
2019 (2) TMI 1955
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions to the Assessing Officer for verification of claims made by the assessee, thereby sending back the issues raised in appeal to the Assessing Officer instead of deciding them. Assessee also raised ground that directions of the Ld. CIT(A) be held as bad in law and Ld. CIT(A) be directed to give clear / categorical findings and decide the grounds raised before her. 3. Ld. Counsel for the assessee, referring to the order passed by the Ld. CIT(A) submitted that in all the issues, the Ld. CIT(A) directed the Assessing Officer to verify the claim of the assessee and allow, if found to be correct. All the grounds have been decided in that manner thereby restoring the issues to the file of the Assessing Officer for verification and decision, thus, exceeding the jurisdiction u/s.251(1)(a) of the Act as the Ld.CIT(A) has no jurisdiction to restore the issue to the file of the Assessing Officer. 4. Ld. Counsel for the assessee referring to Clause 77 of the Finance Bill, 2001 i.e. provisions relating to direct taxes and measures to reduce litigation submits that provisions u/s. 251 of the Act was amended whereby the commissioner (Appeals) is prevented to set aside the assessment or refer ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on. - In disposing of an appeal, the [* * *] Commissioner (Appeals) may consider and decide any matter arising out of proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the [* * *] Commissioner (Appeals) by the appellant. 30. As seen from the above extract, the provision empowers the appellate authority, in an appeal against an order of assessment, to confirm, reduce, enhance, or annul the assessment. True, as rightly contended by Sri Mather, the assessee's counsel, before 01.06.2001, section 251 (1) (a) has an appendage: "or he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as may be necessary, the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;". 31. Sri Mather relies on a CBDT's circular to drive home how the amendment has affected the Appellate Commissioner's powers. He has cited the circular in his written submiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus: "As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." 36. The three-Judge Bench finally holds in Dhirendra Nath that where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. 37. A distinction exists between the provisions that confer jurisdiction and those that regulate procedure. Jurisdiction can neither be waived nor created by consent, holds a Constitution Bench of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on interpreting the statute which is erroneous. 42. Indeed, the assessee argues that the amendment took the appellate authority's power to remand the matter. According to him, this denudation aims to serve a public interest: curtailing the adjudicatory delays and completing the assessments quickly. 43. The Revenue maintains that the authority who passed the order has the power to entertain an appeal, in the first place. If he has passed an order which does not strictly conform with the statutory mandate, he has, at best, exercised his power irregularly or even illegally. But, by no stretch, he acted without authority; nor has his order become nullity. 44. When an order under section 271 (1) (C) is passed in violation of section 274 (1), it is statutory violation, observes the High Court of Andhra Pradesh in Thakur V. Hari Prasad. The order may have violated a statute, and it may amount to an illegal order. But it can be corrected under section 254 of the Act. The order does not, thereby, become void. Uncorrected in appropriat....