Delhi High Court
Ritz Theatre vs Income Tax Officer on 25 August, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
it* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 10th August, 2010
% Judgment Pronounced on: 25th August, 2010
+ ITA 978/2010
RITZ THEATRE ..... Appellant
Through: Mr. Kannan Kapur, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Ms. Sonia Mathur, Adv.
AND
ITA 980/2010
RITZ THEATRE ..... Appellant
Through: Mr. Kannan Kapur, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Ms. Sonia Mathur, Adv.
AND
ITA 981/2010
RITZ THEATRE ..... Appellant
Through: Mr. Kannan Kapur, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Ms. Sonia Mathur, Adv.
AND
ITA No.978/2010 and connected matters Page 1 of 36
ITA 982/2010
RITZ THEATRE ..... Appellant
Through: Mr. Kannan Kapur, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Ms. Sonia Mathur, Adv.
AND
ITA 984/2010
RITZ THEATRE ..... Appellant
Through: Mr. Kannan Kapur, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Ms. Sonia Mathur, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The controversy involved in this batch of appeals being similar, it
was heard analogously and is disposed of by a common order. Be it
noted, the appeals that are directed against the common order passed by
the Income Tax Appellate Tribunal, Delhi Bench F, New Delhi on
19.6.2009 (for short „the tribunal‟) which disposed of ITA Nos.1779 to
ITA No.978/2010 and connected matters Page 2 of 36
1783/Del/2009 pertaining to the Assessment Years 1990-91 to 1992-93
and 1995-96 & 1996-97, have been admitted on the following substantial
questions of law:
"(i) Whether in the facts and in the circumstances of
the case, the impugned order of the Income Tax
Appellate Tribunal in not acknowledging the
jurisdictional infirmity in respect of the returns having
never been regularised on account of non service of
(jurisdictional) notice under Section 148 of the Act has
caused the impugned order to be ridden with perversity
and liable to be set aside by this Court?
(ii) Whether in the facts and in the circumstances of
the present case, the order of the tribunal having been
passed in contravention to the settled judicial principles
and binding judicial authorities of the Supreme Court as
well as those of various High Court is perverse?
(iii) Whether in the facts and in the circumstances of
the present case, the re-assessment proceedings were
barred by time as the same were issued beyond the
statutory period of 6 years?"
2. The brief facts which are imperative to be exposited for
adjudication of these appeals are that the assessee had filed returns of
income for the assessment years in question on 2.12.1999 and the said
returns were processed under Section 143(1) on 5.3.2002. The assessing
officer noted that the assessee company had made disclosure of income
under the VDIS, 1997. The assessee failed to deposit the taxes in
accordance with the VDIS and, therefore, the declaration was held to be
void in terms of Section 67(2) of the Scheme. Notices under Section 148
of the Act were issued on 24.12.1999. The assessing officer had issued
notices under Section 143(2) / 142(1) along with the questionnaire. In
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response to the said notices, the Managing Director of the company
appeared before the assessing officer from time to time and filed details as
called for. The assessing officer found that the assessee had not made any
payment of tax under self-assessment or under the provisions of VDIS,
1997. In this backdrop, he completed the assessment under Section
143(3) of the Act.
3. Being dissatisfied with the order of assessment, the assessee
challenged the same in appeals and a number of grounds were urged. One
of the grounds that was highlighted was that the notice under Section 148
dated 24.12.1999 was not served on the assessee and, therefore, the order
of reassessment framed under Section 147 on 26.3.2002 was bad in law.
4. The CIT(A), while dealing with the said aspect, came to hold as
follows:
"I have considered the facts and circumstances of the
case. Under Section 282 of the Income Tax Act, 1961,
the Income Tax authorities can adopt any one of the
alternative modes of service of notices, i.e. by post or in
the manner provided in the code of Civil Procedure for
the service of summons. The word "issue" and "service"
are not synonymous, yet in the light of the provisions of
Section 114 of the Indian Evidence Act, 1872 and
Section 27 of the General Clauses Act, 1897, a notice is
deemed to have been served on the addressee if it has
been sent through pre-paid registered post or letter. In
the facts of the present case, it is a matter of record that
the notices under Section 148 for all the impugned
assessment years were sent by registered post. This has
also been stated by the ITO, Ward 15(2), New Delhi in
her report dated 28.8.2002 and postal receipt for issue of
notices under Section 148 by registered post is pasted on
the office copy of the notice. Hence there is a
ITA No.978/2010 and connected matters Page 4 of 36
presumption regarding service of notices under Section
148 upon the assessee. The assessee has failed to rebut
the presumption regarding service of notices. Apart from
a mere averment that the notices had not been received,
no evidence has been adduced by the assessee. Hon‟ble
Punjab & Haryana High Court in Ramesh Khosla v. ITO
154 ITR 556 has held that mere averment by the assessee
that notice of demand was not served while the assessee
had responded to notices under Section 143(2) sent by
registered post showed that presumption of service of
notice of demand was not rebutted and recovery
proceedings were valid. In the facts of the present case,
also notices under Section 148 were sent by registered
post and the Managing Director of the assessee company
had duly attended the reassessment proceedings in
compliance of notices under Section 143(2) & 142(1).
Hence there is no valid ground to challenge the service of
notices under Section 148."
5. It is worth noting that the CIT(A) had also considered the other
contentions of the assessee and dismissed the appeal.
6. Being grieved by the aforesaid order, the assessee carried the
appeal to the tribunal and the tribunal decided the appeals on 25.2.2003
pertaining to the assessment years 1990-91, 1991-92 and 1992-93 and the
appeals relating to the assessment years 1995-96 and 1996-1997 on the
same day by a separate order. The tribunal took note of the submissions
of the learned counsel for the appellant therein and proceeded to pass the
following order:
In these three appeals directed against the consolidate order passed by
the CIT(A), common grounds have been raised and for purposes of
deciding these appeals, which have been head together, we reproduce the
grounds pertaining to A.Y. 1990-91 as under:-
"On the facts and in the circumstances of the case and
in law, the authorities below erred:-
ITA No.978/2010 and connected matters Page 5 of 36
(1) In invoking provisions of section 147 of the
Income Tax Act, 1961 and in thereafter
assessing the income at Rs.4,91,400/-;
(2) In framing reassessment u/s 147 of the Act
ignoring the fact that the impugned notice u/s
148 of the Act issued by the Assessing Officer
was never served at all;
(3) In ignoring the fact that the notice u/s 148 dated
24.12.99 is without jurisdiction as the condition
precedent to the exercise of jurisdiction u/s 148
viz. the „recording of reasons‟ is totally absent;"
xxxx
xxxx
xxxx
4. As regards the first three common grounds
pertaining to the invocation of the provisions of
Section 147/148, the view about canvassed by both the
parties was considered but as in our opinion, the views
of the tax authorities in respect of the aforesaid
provisions were correct, we decline to interfere. It is
an accepted fact that the assessee itself asked the A.O.
to regularize the returns and which he did by issue of
notice under Section 148 and subsequently the
assessee participated in the assessment proceeding.
The learned counsel could not point out any infirmity
in law vis-à-vis the views expressed by the tax
authorities and we, therefore, have no option but to
reject the first three common grounds in all these three
appeals."
7. After so holding, the tribunal remanded the matter to the assessing
officer requiring him to re-examine the question of double taxation as also
to examine on merits the assessee‟s contention that no addition/
disallowances could be made over and above the figure returned and
which was also the figure shown in the VDIS declaration.
8. In pursuance of the order of remit, the assessing officer framed an
order of assessment in respect of all the assessment years on 28.3.2005.
ITA No.978/2010 and connected matters Page 6 of 36
He determined the taxable income at Rs.2,98,840/-, Rs.3,88,390/-,
Rs.1,09,490/-, Rs.6,54,670/- and Rs.3,69,750 in respect of the assessment
years 1990-91, 1991-92, 1992-93, 1995-96 and 1996-97 respectively.
9. The assessee, being dissatisfied, assailed the said orders before the
CIT(A). The first appellate authority, as is evincible from his order,
instead of dwelling upon the merits of the additions, investigated the issue
whether reopening of assessment by issuance of a notice under Section
148 is in accordance with law or not. He arrived at the conclusion that
notice under Section 148 of the Act had not been served on the assessee.
Being of this view, he opined that the returns submitted were invalid and,
hence, no assessment could be framed on the basis of invalid returns.
10. Grieved with the aforesaid order of the CIT(A), the revenue
preferred appeals before the tribunal and in appeal, it was contended that
the issue regarding reopening of assessment had attained finality by the
tribunal in the first round of litigation and if the assessee was grieved, it
was open to attack the same by preferring a further appeal before the
superior court and the authorities below being bound by the terms of the
order of remand could not have looked into other grounds, especially
which had been put to rest. It was urged that the CIT(A) cannot sit over
the judgment of the tribunal as that would lead to anarchy and create a
dent in the hierarchy of adjudicatory system.
ITA No.978/2010 and connected matters Page 7 of 36
11. The said stand and stance was opposed by the learned counsel for
the assessee contending, inter alia, that valid service of notice under
Section 148 of the Act confers jurisdiction on the assessing officer to
frame an assessment order and if no valid notice was served upon the
assessee, then the proceedings were totally without jurisdiction. It was
urged that in the second round of litigation, the CIT(A) had specifically
recorded a finding that no notice was served and, hence, the order of
assessment was without jurisdiction and thereby a nullity. The counsel
for the assessee pressed into service the decisions rendered in Barada
Kanta Mishra v. High Court of Orissa, AIR 1976 (SC) 1899, State of UP
v. Mohd. Nooh, 1958 I SCR 595, P.V. Doshi v. CIT, 113 ITR 22,
Rawatmal Harak Chand v. CIT, 125 ITR 346, CIT v. Rane Break
Lining, 272 ITR 405, Pun Kunnam Traders v. Additional ITO,
Kotayam, 83 ITR 508, Deep Chand Kothari v. Commissioner of Income
Tax, (1988) 171 ITR 381 (Raj.) and CIT v. Avtar Singh, 304 ITR 333.
12. The tribunal distinguished the decisions cited by the learned
counsel for the appellant and after placing reliance on CIT v. Sun
Engineering, 198 ITR 297 came to hold that the CIT(A) could not have
delved into the issue of limitation as the same was put to rest by him as
well as by the tribunal and, in fact, had no right to look into the matter
because a matter of remand was specific in nature. It has been observed
by the tribunal that if the lower authorities are allowed to examine all the
issues which have attained finality, then there will be no end to litigation
ITA No.978/2010 and connected matters Page 8 of 36
and a chaos would be created in the administration of tax litigation. Being
of this view, the tribunal set aside the order passed by the CIT(A) and
directed the first appellate authority to adjudicate the matter on merits in
compliance with the directions of the tribunal passed on the earlier
occasion.
13. We have heard Mr. Kaanan Kapur, learned counsel for the assessee
- appellant, and Ms. Sonia Mathur, learned counsel for the revenue -
respondent.
14. Calling in question the vulnerability and legal acceptability of the
order of the tribunal, Mr. Kapur has raised the following proponements:
A. When there is non-service of notice under Section 148 of the Act
within the time stipulated therein, the same renders the entire proceeding a
nullity and makes the whole action ab initio void.
B. The finding recorded by the first appellate authority goes to the
heart of the matter, i.e., non-service of the notice dated 24.12.1999 and the
same being a jurisdictional issue, it could have been addressed to by the
CIT(A) irrespective of the scope of remand by the order of the tribunal on
25.2.2003.
C. The Commissioner has appositely expressed the view that when
there has been no notice, the assessment proceedings have been initiated
without there being a jurisdictional foundation. The assessing officer had
ITA No.978/2010 and connected matters Page 9 of 36
erroneously assumed that the jurisdiction to reassess the assessee cannot
be found fault with as the first appellate authority had scrutinised the
record in a minutest manner and such a finding could not have been
dislodged by the tribunal solely on the ground that the CIT(A) could not
have delved into the same because of the scope of remand. The tribunal
has fallen into serious error by unsettling the order of the CIT(A) despite
plethora of decisions to the effect that when an order is passed without
jurisdiction, the same is a nullity and its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon even at
the stage of execution or even in a collateral proceeding.
D. The tribunal has failed to appreciate the ratio laid down by the
Gujarat High Court in CIT Gujarat II v. Nanalal Tribhovandas and
Anr., (1975) 100 ITR 734 though the same is squarely applicable to the
case at hand.
E. The tribunal on the earlier occasion had decided the factum of
service of notice upholding it as deemed service and not as an actual
factum of service on the assessee and, therefore, the same was available
for scrutiny by the CIT(A) and there was no impediment in law.
F. The concept of attachment of finality to an order as has been
pressed into service by the tribunal is fallacious inasmuch as a finality or
conclusiveness of an order could only arise in respect of orders which are
ITA No.978/2010 and connected matters Page 10 of 36
competent orders with jurisdiction and if an order has been passed without
valid initiation, the same cannot be treated as a final or conclusive order.
To buttress the aforesaid submissions, the learned counsel for the
assessee has pressed into service the decisions rendered in Y. Narayana
Chetty and Anr. V. The Income Tax Officer, Nellore and Ors., (1959) 35
ITR 388 SC, Jindal Photo Films Ltd. V. The Deputy Commissioner of
Income Tax, (1998) 234 ITR 170 Delhi, Commissioner of Income Tax v.
Hotline International Pvt. Ltd., 296 ITR 333 Delhi, Commissioner of
Income Tax v. Shitalal Prasad Kharag Prasad, (2006) 280 ITR 541
(All), Commissioner of Income Tax v. Sh. Ashok Kumar Bharti and
Anr., (2006) 282 ITR 496, State of Uttar Pradesh v. Mohammad Noah,
(1958) 1 SCR 595, Koran Singh and ors. V. Chaman Paswan and ors.,
AIR 1954 SC 340, Rane Break Lining (supra) and Nanalal
Tribhovandas and Anr. (supra).
15. Ms. Sonia Mathur, learned counsel for the revenue, in impugnation
of the aforesaid submissions, has advanced the following submissions:
(a) The tribunal while passing the earlier order had taken note of the
fact that the assessee had asked the assessing officer to regularise the
return which was filed on the basis of issuance of notice under Section
148 of the Act and, thereafter, had participated in the assessment and,
hence, the service of notice under Section 148 was not available.
ITA No.978/2010 and connected matters Page 11 of 36
(b) The assumption of jurisdiction by the CIT(A) on the second
occasion is totally uncalled for since the issue pertaining to service of
notice under Section 148 had attained finality at the level of the tribunal.
(c) Service of notice on the assessee is a question of fact which had
been put to rest by the tribunal and it could not have been delved into by
the CIT(A) as if the same related to the sphere of inherent jurisdiction. To
bolster the aforesaid submissions, the learned counsel for the revenue has
placed reliance on Bhupinder Singh Bharti v. Commissioner of Gift-tax,
(2001) 117 TAXMAN 234 (Delhi).
16. At the very outset, it is obligatory on our part to state that though
the appeal was admitted on the three substantial questions of law, yet
basically it relates to one singular question, i.e., whether the CIT(A), after
the remand by the tribunal to the assessing officer to adjudicate in a
particular manner in a limited compass, could have dwelled upon the issue
relating to non-service of a notice under Section 148 of the Act on the
ground that such non-service makes the original order of assessment
which has already travelled to the tribunal a nullity.
17. Mr. Kapur, as indicated hereinabove, has commended us to many a
decision on the concept of nullity. We think it appropriate to refer to the
decisions to understand the factual matrix and the principle rendered
therein. In Mohammad Noah (supra), the State of Uttar Pradesh had filed
an appeal after obtaining the certificate of fitness granted by the High
ITA No.978/2010 and connected matters Page 12 of 36
Court of Allahabad against the judgment and order of the High Court in a
writ petition quashing the departmental proceeding against the respondent
who was a Constable in the Uttar Pradesh Police force. It was contended
before the Apex Court that the High Court had erroneously exercised the
writ jurisdiction. In that context, their Lordships have held thus:
"On the authorities referred to above it appears to us
that there may conceivably be cases - and the instant
case is in point - where the error, irregularity or
illegality touching jurisdiction or procedure
committed by an inferior court or tribunal of first
instance is so patent and loudly obtrusive that it leaves
on its decision an indelible stamp of infirmity or vice
which cannot be obliterated or cured on appeal or
revision. If an inferior court or tribunal of first
instance acts wholly without jurisdiction or patently in
excess of jurisdiction or manifestly conducts the
proceedings before it in a manner which is contrary to
the rules of natural justice and all accepted rules of
procedure and which offends the superior court's
sense of fair play the superior court may, we think,
quite properly exercise its power to issue the
prerogative writ of certiorari to correct the error of the
court or tribunal of first instance, even if an appeal to
another inferior court or tribunal was available and
recourse was not had to it or if recourse was had to it,
it confirmed what ex facie was a nullity for reasons
aforementioned."
18. In Kiran Singh and Ors. v. Chaman Paswan and Ors. AIR 1954
SC 340, the Apex Court, while discussing about the principle of nullity,
held thus:
"The answer to these contentions must depend on
what the position in law is when a Court entertains a
suit or an appeal over which it has no jurisdiction, and
ITA No.978/2010 and connected matters Page 13 of 36
what the effect of section 11 of the Suits Valuation
Act is on that position. It is a fundamental principle
well-established that a decree passed by a Court
without jurisdiction is a nullity, and that its invalidity
could be set up whenever and wherever it is sought to
be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect
of jurisdiction, whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the
action, strikes at the very authority of the Court to
pass any decree and such a defect cannot be cured
even by consent of parties. If the question now under
consideration fell to be determined only on the
application of general principles governing the matter,
there can be no doubt that the District Court of
Monghyr was „coram non-judice‟, and that its
judgment and decree would be nullities. The question
is what is the effect of section 11 of the Suits
Valuation Act on this position."
19. It is worth noting that in the said decision, their Lordships took note
of Section 11 of the Suits Valuation Act and held that it is a self-contained
provision and no objection to jurisdiction based on over-valuation or
under-valuation can be raised otherwise in accordance with it. Their
Lordships with regard to territorial jurisdiction took note of Section 21 of
the Code of Civil Procedure and opined that the objection relating to the
place of suing should not be entertained by an appellate Court or
revisional Court unless there was a consequent failure of justice and
eventually held the objection to jurisdiction, both territorial and
pecuniary, as technical.
20. In Baradakanta Mishra (supra), the Supreme Court held as
follows:
ITA No.978/2010 and connected matters Page 14 of 36
"The High Court within the power and control vested
under Article 235 could hold disciplinary proceedings
against the appellant and could recommend the
imposition of punishment of reduction in rank on the
appellant. The actual power of imposition of one of
the major punishments, viz., reduction in rank is
exercisable by the Governor who is the appointing
authority. The order passed by the High Court on 8
December, 1972 reducing the appellant in rank is
unconstitutional and is quashed.
The two orders of dismissal dated 3 December, 1973
are based on the order of 8 December, 1972. The
substratum of the orders of dismissal being
unconstitutional the orders of dismissal cannot have
any legal force. Further, the contention of the High
Court that the orders of dismissal passed by the High
Court merged in the orders passed by the Governor
cannot be accepted. If the order of the initial authority
is void an order of the appellate authority cannot make
it valid. The order of the Governor used the word
"confirm". The appellant filed appeals to the
Government. The appeals were dismissed. The
confirmation by the Governor cannot have any legal
effect because that which is valid can be confirmed
and not that which is void."
21. On a perusal of the aforesaid paragraph, it is noticeable that their
Lordships have held that the High Court lacks inherent jurisdiction to
impose the punishment and hence, the order was void and, therefore, the
same could not have been affirmed by the appellate authority, and in those
circumstances, the doctrine of merger would not apply. It is worth noting
that in the said case, the exercise of power was not dependent on any
determination of fact but the assail pertained to the power vested with the
High Court under the rules.
ITA No.978/2010 and connected matters Page 15 of 36
22. In Y. Narayana Chetty and Anr. (supra), the Apex Court was
considering the exercise of jurisdiction under Article 226 where the assail
pertained to the order of illegal assessment and in that context, it was held
that the service of requisite notice on the assessee is a condition precedent
to the validity of any re-assessment and if valid notice is not issued, as
required, the proceedings taken by the Income Tax Officer in pursuance
of an invalid notice and the consequent order of re-assessment passed by
him would be void and inoperative. While laying down the principle,
their Lordships have expressed thus:
"It is then urged that the Income-tax Officer was
bound to issue notices to individual partners of the
firms because at the material time all the firms had
been dissolved. Mr. Sastri concedes that under section
63(2) a notice or requisition under the Act may in the
case of a firm be addressed to any member of the firm
but his contention is that this applies to a firm in
existence and not to a firm dissolved. If the appellants'
case is that as a result of dissolution of the firms the
firms had discontinued their business as from the
respective dates of dissolution they ought to have
given notices of such discontinuance of their business
under section 25(2) of the Act. Besides, in the present
case, the main appellant has in fact been served
personally and the other partners who may not have
been served have made no grievance in the matter.
We are, therefore, satisfied that it is not open to the
appellants to contend that the proceedings taken by
the Income-tax Officer under section 34(1)(a) are
invalid in that notices of these proceedings have not
been served on the other alleged partners of the firms.
Incidentally it may be pointed out that the finding of
the Income-tax Officer in respect of all the three firms
is that the only persons who had interest in the
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business carried on by the said firms were B. Audeyya
and C. Pitchayya. It is remarkable that B. Audeyya
has not cared to challenge the proceedings or to
question the validity of the fresh assessment orders
passed by the Income-tax Officer in the present
proceedings."
23. From the aforesaid, it is evident that their Lordships took note of
the fact that one of the partners who was served with notice by the
assessing officer had not cared to challenge the proceedings or to question
the validity of the said assessment orders passed by the Income Tax
Officer. We have reproduced the said paragraph as in the present factual
backdrop, the said decision is not attracted inasmuch as the finding of fact
relating to service of notice was dealt with by the CIT(A) on the first
occasion and the said finding was affirmed by the tribunal on the earlier
occasion.
24. In Jindal Photo Films Ltd. (supra), this Court had held thus:
"It is also equally well settled that if a notice under S.
148 has been issued without the jurisdictional
foundation under Section 147 being available to the
assessing officer, the notice and the subsequent
proceedings will be without jurisdiction, liable to be
struck down in exercise of writ jurisdiction of this
Court. If 'reason to believe' be available, the writ court
will not exercise its power of judicial review to go
into the sufficiency or adequacy of the material
available. However, the present one is not a case of
testing the sufficiency of material available. It is a
case of absence of material and hence the absence of
jurisdiction in the assessing officer to initiate the
proceedings under Section 147/148."
ITA No.978/2010 and connected matters Page 17 of 36
25. There can be no cavil about the said proposition of law. It is a well
settled principle of law that absence of jurisdiction would vitiate the
proceedings and, accordingly, the proceeding was quashed as the
condition precedent was not satisfied.
26. In Hotline International Pvt. Ltd. (supra), this Court came to hold
that when there is no proper service of notice on the assessee, the
reassessment proceeding is bad in law.
27. In Shitalal Prasad Kharag Prasad (supra), the High Court of
Allahabad was dealing with service of notice on the assessee. On behalf
of the department, a contention was advanced that if no notice is issued or
if the notice is invalid or is not in accordance with law or is not served on
the proper person in accordance with law, the assessment could be illegal
and without jurisdiction. It was opined by the Court that a notice
contemplated under Section 148 of the Act is a jurisdictional notice for
initiating proceedings for making an assessment under Section 147 of the
Act and any defect in that notice cannot be cured by anything done by the
assessing officer subsequently. The Bench opined that the vagueness
cannot be removed by reference to the other documents on the record. In
the said case, the notice under Section 148 of the Act was not served on
all the adult members of the partitioned HUF as required under Section
283(1) of the Act and, hence, the same was invalid.
ITA No.978/2010 and connected matters Page 18 of 36
28. In Sh. Ashok Kumar Bharti (supra), a notice was issued to three
members who formed an AOP. The assessing officer completed the
assessment on the AOP comprising of two persons. On an appeal being
filed, the CIT(A) noted that the notice was issued under Section 148 to an
AOP of three persons while the assessment was framed on AOP of two
persons and cancelled the assessment. The revenue went in appeal before
the tribunal which upheld the order of the CIT(A). On a reference being
made, the Bench opined that there was no valid notice to the assessee
against whom the assessment order was passed. Being of this view, the
Court dismissed the appeal.
29. On a perusal of the aforesaid decision, it is clear as crystal that the
facts are quite different and in fact, the Bench was addressing itself with
regard to the status of the parties, validity of notice and the nature of order
of reassessment. Therefore, the said decision is not applicable to the facts
of the present case.
30. Mr. Kapur, learned counsel for the assessee, has drawn immense
strength from the decisions in Nanalal Tribhovandas and Anr., (supra)
and P.V. Doshi (supra) to highlight that the said two authorities were
rendered in the identical factual backdrop. Regard being had to the
inspired submissions of the learned counsel for the appellant in this
regard, we think it appropriate to x-ray the facts and proceed to
understand the ratio.
ITA No.978/2010 and connected matters Page 19 of 36
31. In Nanalal Tribhovandas and Anr., (supra), in the course of
assessment proceeding for 1949-50, the assessing officer after obtaining
certain information entertained the belief that there was escapement of
income for the preceding three years. He issued notice to the assessee
requiring him to file returns which were filed before the assessing officer.
No contention was urged regarding the validity of notices under Section
34 of the Income Tax Act, 1922. After the assessment was framed, the
assessee went in appeal and the appellate authority annulled the
reassessment orders. Against the said order, the revenue took the matter
in appeal before the tribunal and the tribunal set aside the order of the first
appellate authority and remanded the matter to the first appellate
authority. After the remand, the first appellate authority set aside the
orders passed by the income tax officer in reassessment proceedings on
the ground that they were bad in law and the assessing officer was
directed to make fresh reassessment. One of the contentions that was
canvassed before the first appellate authority was that the notice under
Section 34 was illegal and invalid inasmuch as the income tax officer had
not got relevant material before him and had not considered the
explanation proferred by the assessee before he came to issue notice under
Section 34 of the Act. The appellate authority opined that the action
under Section 34 was fully justified and was quite legal and proper on the
basis of facts before the assessing officer. After remand, it was contended
that the notices issued under Section 34 were invalid because the time
ITA No.978/2010 and connected matters Page 20 of 36
given for filing the returns in each of the three cases fell short of the
statutory period of 30 days. The assessing officer rejected the plea on the
ground that the said issue along with the several points which were urged
before him in the hearing after the remand by the appellate authority were
not raised at the time of the original reassessment proceedings. It is
further held by the assessing officer that the assessment has been set aside
by the first appellate authority on a specific point and, therefore, the
assessee could not raise the above contention at that particular stage and,
accordingly, proceeded to deal with the matter on merits. The matter was
taken up in appeal and the appellate authority came to hold that the issue
of notice of 30 days is a condition precedent for exercise of jurisdiction by
the income tax officer and as the said condition precedent was not
satisfied, the orders of reassessment were illegal and void. Being
dissatisfied, the revenue went up in appeal before the tribunal and it came
to the conclusion that whether the notices were valid or not was a pure
question of law for adjudication for which no further facts need be found
and as the tribunal opined that there was no valid notice under Section 34
of the Act it accordingly, held the assessment to be bad in law.
32. At the instance of the revenue, the matter was referred to the High
Court. The Bench took note of the contention that when there is a
question of jurisdiction to entertain any proceeding under Section 34 of
the Act, the mere technicality that in earlier proceedings before the
appellate authority the particular contention regarding the validity of the
ITA No.978/2010 and connected matters Page 21 of 36
notices under Section 34 was not urged is totally besides the point. In
fact, it held that if the income tax officer has no jurisdiction to initiate
reassessment proceeding or to pass any order in reassessment proceeding,
then the fact that the particular contention was not urged at an earlier
stage is beside the point. It eventually came to hold that the appellate
authority could not confer jurisdiction on the income tax officer to decide
the question on merits. It is worth noting that the Division Bench has
reproduced the order passed by the first appellate authority. The first
appellate authority held thus:
"In the instant case, as pointed out above, the Income-
tax Officer came into possession of certain material
regarding increase of the assets some time in 1953 and
the same information led him to a reasonable and
honest belief that this was due to the assessee not
disclosing fully and truly all material facts at the time
of the original assessment. As pointed out by the
Income-tax Appellate Tribunal in its order dated
January 16, 1958, it was not necessary that the
assessee should have been given an opportunity of
being heard before initiating action under section 34.
In my opinion, the action under section 34 was fully
justified and was quite legal and proper on the basis of
facts before the Income-tax Officer. The notices under
section 34 issued by him were, therefore, perfectly
legal and valid. The contention in respect of the
legality and the validity of the notices is, therefore,
rejected."
33. On a reading of the said paragraph of the first appellate authority
and the view expressed by the Bench, it is crystal clear that the Bench
opined that a contention was not raised with regard to the period of
limitation and further the same being a jurisdictional fact could have been
ITA No.978/2010 and connected matters Page 22 of 36
left to the assessing officer. The submission of Mr. Kapur is that the said
decision gets squarely attracted to the case at hand inasmuch as the
CIT(A) had found that there was no service of notice. The subtle
distinction in the Gujarat case and the present one is that the issue that
was urged before the CIT(A) on an earlier occasion who had addressed
itself to a great extent and further the same was raised before the tribunal,
which finally concluded that the notices were served. It is not a case of
contention not being raised with regard to jurisdiction and further it was
not a case that the first appellate authority conferred jurisdiction on the
assessing officer which exclusively vests with him. Thus, in our
considered opinion, the said decision is not applicable.
34. In P.V. Doshi (supra), the Division Bench was dealing with the
issue whether on the facts and in the circumstances of the case, the
tribunal was right in holding that once it had passed an order, the matter
became final with regard to the point which was settled by the appellate
assistant commissioner and could not be agitated before the tribunal
unless it was taken upto the High Court. In the said case, a proceeding for
reassessment under Section 147 was initiated in response to which the
assessee filed its return. The assessee raised objections about the validity
of the notice and his contentions were not accepted. In appeal before the
appellate authority, the contention about the validity of notice was
abandoned and the appeal stood dismissed. Before the tribunal, the only
controversy raised pertained to the acceptance of the evidence of one
ITA No.978/2010 and connected matters Page 23 of 36
Vora and the tribunal found that the department was not given an
opportunity to cross-examine the said Vora and his affidavit could not
have been accepted and, accordingly, it restored the case to the file of the
assessing officer with a direction to cross-examine the said deponent.
After the remit, the assessing officer framed an order of assessment which
came to be assailed in appeal wherein the reopening of the assessment
was challenged on the foundation that no reasons had been recorded by
the income tax officer before issuing notice for reassessment. It was
urged that merely on the basis of change of opinion, the assessing officer
could not have reopened the assessment. The first appellate authority
came to hold that the subsequent reopening was bad in law. The revenue
went up in appeal before the tribunal and contended that the said question
could not be reopened by the first appellate authority. The tribunal agreed
that this was a pure legal question that went to the root of jurisdiction and
it was open to the assessee to raise this point at any stage and his right
could not be curtailed because he had once raised this question and given
up the same before the first appellate authority on earlier occasion and the
tribunal though had not dealt with this aspect in the first round of
litigation yet the matter had become final as it was settled by the first
appellate authority and not agitated before the tribunal and it was not
carried to the High Court. After noting the facts, the Bench scanned the
anatomy of Sections 147 to 149 of the Act and placed reliance on the
passage in Ashutosh Sikdar v. Bihari Lal Kirtania, [1907] ILR 35 Cal 61
ITA No.978/2010 and connected matters Page 24 of 36
and took note of the facts. Thereafter, the Bench referred to a passage
wherein Justice Coleridge has stated thus:
"10. 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 the particular provision. Their Lordships in
terms approved a workable test laid down by Justice
Coleridge in Holmes v. Russel [1841] 9 Dowl 487 as
under:
"It is difficult sometimes to distinguish between an
irregularity and a nullity; but the safest rule to
determine what is an irregularity and what is a nullity
is to see whether the party can waive the objection; if
he can waive it, it amounts to an irregularity; if he
cannot, it is a nullity."
35. After so holding, the Bench came to hold as follows:
"17. ...In fact,no question of any bar of res judicata
even at the subsequent stage of the same proceeding
could arise in the present case for the simple reason
that the original order is said to be without
jurisdiction. The first condition in invoking any bar of
res judicata is the condition about the competence of
the court. Similarly, the provision of finality in this
relevant provision in section 254(4) could also not be
attracted in such a case, where the question
admittedly, went to the root of the jurisdiction and if
that contention was upheld, it would have made all the
proceedings of reassessment totally void and without
jurisdiction. As per the aforesaid settled legal position
such a point could not be waived and there can be no
question of the earlier remand order operating as a
final order, because if such a jurisdictional point could
not be waived, even the fact of passing of the remand
order by the Tribunal could not confer jurisdiction on
ITA No.978/2010 and connected matters Page 25 of 36
the Income-tax Officer, if the conditions to found his
jurisdiction were absent.
18. Therefore, if this settled position was borne in
mind, the Tribunals view was clearly erroneous that
the matter became final when the Tribunal passed the
earlier remand order so that this point of jurisdiction
got finally settled, which could not be agitated unless
the assessee had come in the reference to this court at
that stage. The Tribunals view was also incorrect that
in restoring the case to the file of the Income-tax
Officer by the earlier order, the only point left open
was in respect of addition of Rs. 19,421 on merits and
that the legal or jurisdictional aspect whether the
reassessment proceedings were legally initiated was
not kept open. Even on the third question the
Tribunals view was erroneous that even though this
point went to the root of the jurisdiction and was a
pure question of law, merely because the point was
initially raised and not pressed when the matter was
taken up before the Appellate Assistant
Commissioner, it could be waived and it could not be
reagitated..."
36. On a careful perusal of the aforesaid decision, it is perceivable that
the facts in the said case and the factual matrix in the present one are quite
different. There the question was abandoned and it related to conferment
of jurisdiction. The Bench opined that the doctrine of waiver would not
be applicable as it was a pure question of law. In the case at hand, the
issue was raised on an earlier occasion before the CIT(A) who after
scanning the factual matrix in detail, expressed the view that the notice
was served on the assessee. The said finding was affirmed by the
tribunal. Service of notice or non-service of notice is in the realm of facts
ITA No.978/2010 and connected matters Page 26 of 36
and as a matter of fact it was put to rest. Thus, it does not give rise to a
total pure question of law. Thus, the said decision is distinguishable.
37. In this context, we may refer with profit to a three-Judge Bench
decision of the Apex Court in Mathura Prasad Sarjoo Jaiswal and
others v. Dossibai N. B. Jeejeebhoy, AIR 1971 SC 2355 wherein their
Lordships have expressed thus:-
"9. A question of jurisdiction of the Court, or of
procedure, or a pure question of law unrelated to the
right of the parties to a previous suit, is not res
judicata in the subsequent suit. Rankin, C.J., observed
in Tarini Charan Bhattacharjee's case, ILR 56 Cal 723 =
(AIR 1928 Cal 777).
"The object of the doctrine of res judicata is not
to fasten upon parties special principles of law
as applicable to them inter se, but to ascertain
their rights and the facts upon which these
rights directly and substantially depend; and to
prevent this ascertainment from becoming
nugatory by precluding the parties from
reopening or recontesting that which has been
finally decided."
12. A question relating to the jurisdiction of a Court
cannot be deemed to have been finally determined by
an erroneous decision of the Court. If by an erroneous
interpretation of the statute the Court holds that it has
no jurisdiction, the question would not, in our
judgment, operate as res judicata. Similarly by an
erroneous decision if the Court assumes jurisdiction
which it does not possess under the statute the
question cannot operate as res judicata between the
same parties, whether the cause of action in the
subsequent litigation is the same or otherwise.
ITA No.978/2010 and connected matters Page 27 of 36
13. It is true that in determining the application of the
rule of res judicata the Court is not concerned with the
correctness or otherwise of the earlier judgment. The
matter in issue, if it is one purely of fact, decided in
the earlier proceeding by a competent court must in a
subsequent litigation between the same parties be
regarded as finally decided and cannot be re-opened.
A mixed question of law and fact determined in the
earlier proceeding between the same parties may not,
for the same reason, be questioned in a subsequent
proceeding between the same parties. But, where the
decision is on a question law, i.e. the interpretation of
a statute, it will be res judicata in a subsequent
proceeding between the same parties where the cause
of action is the same, for the expression "the matter in
issue" in S. 11 Code of Civil Procedure means the
right litigated between the parties, i.e. the facts on
which the right is claimed or denied and the law
applicable to the determination of that issue. Where,
however, the question is one purely of law and it
relates to the jurisdiction of the Court or a decision of
the Court sanctioning something which is illegal, by
resort to the rule of res judicata a party affected by the
decision will not be precluded from challenging the
validity of the order under the rule of res judicata, for
a rule of procedure cannot supersede the law of the
land.
14. In the present case the decision of the Civil Judge,
Junior Division, Borivli, that he had no jurisdiction to
entertain the application for determination of standard
rent, is, in view of the judgment of this Court, plainly
erroneous, see (1962) 3 SCR 928 = (AIR 1966 SC
1939). If the decision in the previous proceeding be
regarded as conclusive it will assume the status of a
special rule of law applicable to the parties relating to
the jurisdiction of the Court in derogation of the rule
declared by the Legislature."
[Emphasis supplied]
ITA No.978/2010 and connected matters Page 28 of 36
38. In Mahila Bajrangi v. Badribai, (2003) 2 SCC 464, the Apex
Court has opined that the principle of res judicata would be applicable
when an issue arose directly and substantially in an earlier suit but a
finding regarding an incident or collateral question reached for the
purpose of arriving at the final decision would not constitute res judicata.
39. In Union of India v. Pramod Gupta, (2005) 12 SCC 1, it has been
held thus:-
"29[28]. The principle of res judicata would apply
only when the lis was inter partes and had attained
finality in respect of the issues involved. The said
principle will, however, have no application inter alia
in a case where the judgment and/or order had been
passed by a court having no jurisdiction therefor,
and/or in a case involving a pure question of law. It
will also have no application in a case where the
judgment is not a speaking one."
[Emphasis Added]
40. In Bishwanath Prasad Singh v. Rajendra Prasad and another,
(2006) 4 SCC 432, it has been held thus:-
"43. The question of determination of (sic) being a
pure question of law, the principles of res judicata
shall have no application. Therefore, the High Court,
in our opinion, committed a manifest error in
interfering with the judgment and decree passed by
the trial court as also the appellate court in exercise of
its jurisdiction under Section 100 of the Civil
Procedure Code."
41. In this context, we may profitably refer to the decision in Chief
Justice of A.P. v. L.V.A. Dixitulu,(1979) 2 SCC 34 wherein it has been
held:
ITA No.978/2010 and connected matters Page 29 of 36
"23[24]. As against the above, Shri Vepa Sarathy
appearing for the respective first respondent in C.A.
2826 of 1977, and in C.A. 278 of 1978 submitted that
when his client filed a writ petition (No. 58908 of
1976) under Article 226 of the Constitution in the
High Court for impugning the order of his compulsory
retirement passed by the Chief Justice, he had served,
in accordance with Rule 5 of the Andhra Pradesh
High Court (Original Side) Rules, notice on the Chief
Justice and the Government Pleader, and, in
consequence, at the preliminary hearing of the writ
petition before the Division Bench, the Government
Pleader appeared on behalf of all the respondents
including the Chief Justice, and raised a preliminary
objection that the writ petition was not maintainable
in view of Clause 6 of the Andhra Pradesh
Administrative Tribunal Order made by the President
under Article 371-D which had taken away that
jurisdiction of the High Court and vested the same in
Administrative Tribunal. This objection was accepted
by the High Court, and as a result, the writ petition
was dismissed in limine. In these circumstances -
proceeds the argument - the appellant is now
precluded on principles of res judicata and estoppel
from taking up the position, that the Tribunal's order
is without jurisdiction. But, when Shri Sarathi's
attention was invited to the fact that no notice was
actually served on the Chief Justice and that the
Government Pleader who had raised this objection
had not been instructed by the Chief Justice or the
High Court to put in appearance on their behalf, the
counsel did not pursue this contention further.
Moreover, this is a pure question of law depending
upon the interpretation of Article 371-D. If the
argument holds good, it will make the decision of the
Tribunal as having been given by an authority
suffering from inherent lack of jurisdiction. Such a
decision cannot be sustained merely by the doctrine of
res judicata or estoppel as urged in the case."
[Underlining is ours]
ITA No.978/2010 and connected matters Page 30 of 36
42. In Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230, it
has been held thus:
"37. It is now well settled that an order passed by a
court without jurisdiction is a nullity. Any order
passed or action taken pursuant thereto or in
furtherance thereof would also be nullities. In the
instant case, as the High Court did not have any
jurisdiction to record the compromise for the reasons
stated hereinbefore and in particular as no writ was
required to be issued having regard to the fact that
public law remedy could not have been resorted to,
the impugned orders must be held to be illegal and
without jurisdiction and are liable to be set aside. All
orders and actions taken pursuant to or in furtherance
thereof must also be declared wholly illegal and
without jurisdiction and consequently are liable to be
set aside. They are declared as such."
[Emphasis Added]
43. In the case at hand, neither the CIT(A) nor the tribunal lacked
inherent jurisdiction to deal with the controversy with regard to service of
the notice. It was a question of fact and assuming it is a jurisdictional fact
by which the assessing officer could assume jurisdiction as the condition
precedent was required to be satisfied so that the assessing officer could
get jurisdiction but once a finding was arrived at that the notice was
served on the parties, the same would bind the parties. In this context, we
may fruitfully refer to the decision rendered in Kali Prasad & Ors. v.
Deputy Director of Consolidation & Ors, (2000) 6 SCC 640, wherein the
Apex Court has held thus:
"12. ...Section 331 read with Schedule II bars
jurisdiction of the civil court only in respect of such
ITA No.978/2010 and connected matters Page 31 of 36
reliefs which are mentioned in Schedule II and for
their adjudication another authority has been
prescribed thereunder. The suits were filed by Ram
Dulare (father of respondents 3 and 4) for the reliefs
of declaration of bhumidari rights and for ejectment of
the persons in possession including the appellants.
The relief of ejectment of asamis which bars the
jurisdiction of the civil court, is mentioned at Sl. Nos.
19, 20 and 21 of Schedule II. Further, it is not every
suit of declaration that is barred under Section 331;
the categories of declaration which cannot be granted
by a civil court are those mentioned against Sl. No. 34
and they are of the types specified in Sections 229,
229-B and 229-C. We have perused those provisions.
The suit filed by Bal Karan (sic Ram Dulare) does not
fall under any of the aforementioned Sections. The
only ground on which the suit was held to be barred
was that the appellants were asamis and their
ejectment could not be granted by the civil court. A
finding recorded by the civil court on the question of
jurisdictional fact is binding on the parties to the suit."
[Emphasis Supplied]
44. On a perusal of the aforesaid passage, it is clear as noon day that if
a finding is recorded relating to jurisdiction by a court which lacks
inherent jurisdiction, the same would stand on a different compartment
than a controversy where the court or a forum has jurisdiction and
assumes jurisdiction on certain spheres or recording of satisfaction of
conditions precedent. The latter would be the determination of a
jurisdictional fact and that would operate as res judicata parties inter se.
45. If the obtaining factual matrix is tested on the aforesaid enunciation
of law, it is quite vivid that a pure question of law is not involved which
could be agitated at any time. It relates to service of notice. As a matter
ITA No.978/2010 and connected matters Page 32 of 36
of fact, a categorical finding was recorded by the CIT(A) on an earlier
occasion that the notice was served. The same was concurred with by the
tribunal. When a fact finding authority had recorded as a matter of fact,
as regards the service of notice, in our considered opinion, the same could
not have been agitated before the first appellate authority again. There is
no quarrel over the proposition that service of notice is a condition
precedent but the said issue was put to rest on the previous round of
litigation. Therefore, the assessee was not entitled in law to raise the said
issue again.
46. The controversy can be looked into from another angle. The
tribunal has dealt with the issue and directed a remand on a limited score.
The said order of remand was not assailed before the superior forum. In
K.P. Dwivedi v. State of U.P. & Ors., (2003) 12 SCC 572 a two-Judge
Bench of the Apex Court opined that when there is a limited remand, the
authority concerned cannot travel beyond the same as the earlier findings
could not be disturbed.
47. In Paper Products Ltd. v. Commissioner of Central Excise,
Mumbai, (2007) 7 SCC 352 the Apex Court after reproducing the order
passed by the Customs, Excise and Gold (Control) Appellate Tribunal (in
short „CEGAT‟) held that it only related to the particular plea and no new
pleas could not be advanced.
ITA No.978/2010 and connected matters Page 33 of 36
48. In Mohan Lal v. Anandibai and others, AIR 1971 SC 2177 a
three-Judge Bench of the Apex Court expressed thus:
"9. Lastly, counsel urged that now that the suit has
been remanded to the trial Court for reconsidering the
plea of res-judicata, the appellant should have been
given an opportunity to amend the written statement
so as to include pleadings in respect of the fraudulent
nature and antedating of the gift deed Ext. P-3. These
questions having been decided by the High Court
could not appropriately be made the subject-matter of
a fresh trial. Further, as pointed out by the High Court,
any suit on such pleas is already time-barred and it
would be unfair to the plaintiff-respondents to allow
these pleas to be raised by amendment of the written
statement at this late stage. In the order, the High
Court has stated that the judgments and decrees and
findings of both the lower courts were being set aside
and the case was being remanded to the trial Court for
a fresh decision on merits with advertence to the
remarks in the judgment of the High Court. It was
argued by learned Counsel that, in making this order,
the High Court has set aside all findings recorded on
all issues by the trial Court and the first appellate
Court. This is not a correct interpretation of the order.
Obviously, in directing that findings of both courts are
set aside, the High Court was referring to the points
which the High Court considered and on which the
High Court differed from the lower courts. Findings
on other issues, which the High Court was not called
upon to consider, cannot be deemed to be set aside by
this order. Similarly, in permitting amendments, the
High Court has given liberty to the present appellant
to amend his written statement by setting out all the
requisite particulars and details of his plea of res
judicata, and has added that the trial Court may also
consider his prayer for allowing any other
amendments. On the face of it, those other
amendments, which could be allowed, must relate to
this very plea of res judicata. It cannot be interpreted
ITA No.978/2010 and connected matters Page 34 of 36
as giving liberty to the appellant to raise any new
pleas altogether which were not raised at the initial
stage. The other amendments have to be those which
are consequential to the amendment in respect of the
plea of res judicata."
49. We have quoted in extenso only to highlight that an order passed by
the superior court has to be understood in a proper perspective and when
the appellate court directs a remand with a direction to consider a
particular plea, a new plea cannot be raised.
50. In view of the aforesaid enunciation of law, the CIT(A) could not
have ventured to address itself with regard to service of notice as if the
matter was in the realm of total open remand. In fact, such reopening of
issue was totally unwarranted.
51. We will be failing in our duty if we do not note a submission of the
learned counsel for the revenue. Learned counsel has urged that if the
CIT(A) would traverse beyond the orders passed by the tribunal that
would bring in chaos and destroy the basic hierarchical principles in the
administration of justice. In this regard, we may refer with profit to the
following observations made by their Lordships in Bishnu Ram Borah
and another v. Parag Saikia and others, AIR 1984 SC 898:
"12. It is regrettable that the Board of Revenue failed
to realize that like any other subordinate tribunal, it
was subject to the writ jurisdiction of the High Court
under Art. 226 of the Constitution. Just as the
judgments and orders of the Supreme Court have to be
faithfully obeyed and carried out throughout the
territory of India under Art. 142 of the Constitution,
ITA No.978/2010 and connected matters Page 35 of 36
so should be the judgments and orders of the High
Court by all inferior courts and tribunals subject to
their supervisory jurisdiction within the State under
Arts. 226 and 227 of the Constitution. We cannot but
deprecate the action of the Board of Revenue in
refusing to carry out the directions of the High Court.
In Bhopal Sugar Industries Limited v. Income-tax
Officer Bhopal (1961) 1 SCR 474 : (AIR 1961 SC
182) , the Income-tax Officer had virtually refused to
carry out the clear and unambiguous directions which
a superior tribunal like the Income-tax Appellate
Tribunal had given to him by its final order in
exercise of its appellate powers in respect of an order
of assessment made by him. The Court held that such
refusal was in effect a denial of justice and is
furthermore destructive of one of the basic principles
in the administration of justice based as it is in this
country on the hierarchy of courts."
52. We have reproduced the aforesaid passage only to highlight that the
CIT(A) has really flouted the norms pertaining to administration of justice
based on hierarchy of courts which is totally impermissible.
53. In view of our aforesaid premised reasons, we do not perceive any
merit in these appeals and, accordingly, they are dismissed without any
order as to costs.
CHIEF JUSTICE
MANMOHAN, J.
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