Allahabad High Court
Commissioner Of Income Tax-I, Lucknow vs M/S Dalipur Construction (P) Ltd., ... on 13 January, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- INCOME TAX APPEAL No. - 43 of 2015 Appellant :- Commissioner Of Income Tax-I, Lucknow Respondent :- M/S Dalipur Construction (P) Ltd., Lucknow Counsel for Appellant :- Ghan Shyam Chaudhary Counsel for Respondent :- Lalit Shukla Hon'ble Sudhir Agarwal,J.
Hon'ble Ravindra Nath Mishra-II,J.
1. Heard Sri G.S. Chaudhary, learned counsel for appellant and Sri Lalit Shukla, Advocate for respondent.
2. Admittedly order of assessment was passed by an officer who did not have jurisdiction in the matter and this objection was taken in appeal by Assessee before Commissioner of Income Tax (Appeals) [hereinafter referred to as the "CIT(A)"] but he rejected this ground vide order dated 29.12.2011 observing that said objection ought to have been taken before Assessing Officer itself. In further appeal before Income Tax Appellate Tribunal, Lucknow Bench 'B', Lucknow (hereinafter referred to as the "Tribunal") it has allowed Assessee's appeal vide judgment and order dated 28.11.2014, hence this appeal under Section 260A of Income Tax Act, 1961 (hereinafter referred to as the "Act, 1961"), challenging aforesaid order of Tribunal.
3. Learned counsel appearing for Revenue sought to argue that objection regarding jurisdiction ought to have been taken at the first instance, i.e., before Assessing Officer and once it was not taken, assessment order cannot be challenged.
4. However, he could not dispute that lack of jurisdiction in such case is not a mere irregularity and if that be so, if an authority has no jurisdiction in the matter, same cannot be conferred even by consent of parties. Something which is wholly without jurisdiction, that is nullity in the eyes of law, no principle of law would come to confer any kind of effectiveness to such proceedings so as to have any legal consequences.
5. As early as in 1951 the Apex Court in United Commercial Bank Limited versus Their Workmen AIR 1951 SC 230 held:
"No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess."
6. In Kiran Singh versus Chaman Paswan AIR 1954 SC 340, the Court said:
"A defect of jurisdiction ... strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties."
7. In Benarsi Silk Palace Vs. Commr. of Income Tax [1964] 52 ITR 220 (All), this Court held:
"Jurisdiction could be conferred only by statute and not by consent and acquiescence. Since jurisdiction is conferred upon Income Tax Officer to proceed under Section 34 (1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence."
8. In Kali Das Wadhwani & Anr. Vs. Jagjiwan Das and another 1985 (2) ARC 533, this Court observed as under:
"It is well settled that a jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity."
9. In Sardar Hasan Siddique Vs. State Transport Appellate Tribunal, AIR 1986 All. 132, the Division Bench of this Court observed:
"A Tribunal of limited jurisdiction cannot derive jurisdiction apart from the statute. No approval or consent can confer jurisdiction upon such a tribunal. No amount of acquiescence waiver or the like can confer jurisdiction of a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity."
10. In Karnal Improvement Trust Vs. Prakashwanti, (1995) 5 SCC 159, the Supreme Court observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd., AIR 1996 SC 1373.
11. In S. Sethuraman Vs. R. Venkataraman and Ors. AIR 2007 SC 2499, Apex Court observed that if jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The above authority has been referred to and relied on by Apex Court recently in Collector, Distt. Gwalior and another Vs. Cine Exhibitors P. Ltd. and another AIR 2012 SC 1239.
12. Hence, the mere fact that objection was not taken before Assessing Officer will not make the order of assessment final as it has been passed by competent authority. In our view Tribunal has rightly upheld the order of CIT(A).
13. In view thereof, we find no substantial question of law arisen in this appeal.
14. Dismissed accordingly.
Order Date :- 13.01.2017 AK