TaxTMI 
TaxTMI 
2025 (6) TMI 2010
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....Tax Appellate Tribunal is justified in dismissing the appeal of the appellant without deciding the appeal on merits, more particularly, the issue with regard to addition of Rs. 65,04,107/- (wrongly mentioned as 'Rs.65,74,704/-' in the order dated 24.04.2025) received as compensation against the acquisition of land by NHAI to tax by recording a finding which is perverse to the record?" 2. The aforesaid substantial questions of law arise for consideration on the following factual backdrop:- 3. The appellant/assessee is engaged in the real estate business. The return for the Assessment Year 2017-18 was filed by the assessee on 30.10.2017 declaring taxable income at NIL. During the year under consideration, the lands of the assessee situated at Abhanpur, Bhatgaon, Nimora were acquired under the National Highways Act, 1956. The assessee claimed a capital gain of Rs. 3.41 Crores arising from the said transaction as exemption under Section 10 (37) of the Act of 1961 read with Section 96 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Reassessment Act, 2013 (for short "Act 2013"). The Assessing Officer completed the assessment under ....
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....eal. He also submits that the present appeal ought to have been decided afresh on merits and the issue with regard to addition of Rs. 65,04,107/-, received by the assessee as compensation, against the acquisition of land by NHAI, ought to have been considered on merits. Therefore, the appeal of the appellant deserves to be allowed and the matter is required to be remanded to the ITAT to decide the appeal afresh on merits. 5. Mr. Ajay Kumrani, learned counsel for the respondent submits that the assessment order dated 10.10.2019 was not challenged by the assessee and in first round of litigation, the assessee did not question the issue raised herein and ultimately, by the subsequent order of the ITAT, the assessment order dated 10.10.2019 has attained finality. He also submits that the order dated 08.08.2019, by which, the assessment proceeding was transferred from the Income Tax Officer No. 4 (1), Raipur to Income Tax Officer 3(1) Raipur has also not been challenged by the assessee. As such, the said order has also attained finality. Subsequently, the appeal has also been decided by the CIT (Appeals) and affirmed by the ITAT in accordance with law. In view of such submission, lea....
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....d have been challenged if it had acted with jurisdiction and thus, observed as under:- "Evidently, the appellate court in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, & it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity. ********* It is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the Ct. to which it would lie if its order was with jurisdiction." 9. In the matter of Sultan Sadik Vs. Sanjay Raj Subba and Ors. (2004) 2 SCC 377, it has been held by the Supreme Court that the order may be void for one and voidable for other and an invalid order necessarily need not be non est, in a given situation it has to be declared as such. 10. Similarly, in the matter of Krishnadevi Malchand Kamathia....
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....that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. 19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person." 11. Coming to the facts of the present case, in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments, it is quite vivid that though the order dated 08.08.2019, transferring the case from one Assessing Officer to other Assessing Officer was not passed by the Principal Commissioner of Income....