Metal Box India Ltd, Kolkata V. A.C.I.T Circle - 11(1), Kolkata, Kolkata

ITA 1672/KOL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9864 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1994-1995
• Appeal Filed On: 18-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Depreciation; Period of limitation; Question of law; Reason to believe; Reassessment proceedings; Co-operative Credit Society
• Section: 143(2); 191; 147; 148; 28; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1672/KOL/2017 ( / ASSESSMENT YEAR:1994-95) METAL BOX INDIA LTD. 3G, MEGHDOOT, 12, ROWLAND ROAD, KOLKATA-700020 VS. ACIT, CIRCLE-11(1), KOLKATA ./ ./PAN/GIR NO.: AABCM 9196 M (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI MANISH TIWARI, A.R. RESPONDENT BY : SHRI ABANI KANTA NAYAK, CIT DR / DATE OF HEARING : 25/07/2019 /DATE OF PRONOUNCEMENT : 25/09/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 1994-95, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-18, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 254/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 31/03/2006. 2. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE AS SESSEE IS AS FOLLOWS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE INITIATION OF PROCEEDINGS U/S 147 OF THE I.T. ACT, 1961 IS ERRONE OUS AND BAD IN LAW AS NO NOTICE U/S 143(2) WAS ISSUED IN COURSE OF PROCEEDIN G U/S 147 OF I.T. ACT. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT DURING THE REASSESSMENT PROCEEDINGS, THE NOTICE U/S 143(2) WAS NOT ISSUED BY AO, THEREFORE METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 2 THE ORDER PASSED BY THE ASSESSING OFFICER U/S 147 / 148 IS NULL AND VOID IN THE EYE OF LAW. ON THE OTHER HAND, THE LD. DR FOR THE REVEN UE RELIED ON THE ORDER OF THE ASSESSING OFFICER . 4. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT IN ASSESSEES CASE UNDER CONSIDERATION, THE REASSESSMENT PROCEEDING WA S INITIATED U/S147(1) / 148 OF THE ACT. DURING THE REASSESSMENT PROCEEDINGS, THE A SSESSING OFFICER HAS NOT ISSUED NOTICE U/S 143(2) OF THE ACT AND THE SAID FACT HAS NOT BEEN DISPUTED BY THE LD DR OF THE REVENUE. SINCE THE ASSESSING OFFICER HAS NOT IS SUED NOTICE UNDER SECTION 143(2) OF THE ACT THEREFORE, WITHOUT ISSUING NOTICE U/S 143(2) THE AO DOES NOT GET THE JURISDICTION TO FRAME THE ASSESSMENT U/S 147 /1 48 OF THE ACT. HENCE THE ORDER PASSED BY THE AO IS NULL AND VOID IN THE EYE OF LAW . FOR THAT WE RELY ON THE JUDGMENT OF THE HONBLE GUJRAT HIGH COURT IN THE CA SE OF P. V. DOSHI VS. CIT REPORTED IN 113 ITR 22 WHEREIN IT WAS HELD AS FOLL OWS: 4. IN ORDER TO CONSIDER WHETHER SUCH A QUESTION GO ING TO THE ROOT OF THE JURISDICTION BY INITIATING PROCEEDING OF REASSESSME NT UNDER SECTION 147 COULD BE WAIVED OR NOT, IT WOULD BE PROPER AT THIS STAGE TO CONSIDER THE SETTLED LEGAL POSITION AS TO THE NATURE OF THIS REASSESSMENT PROC EEDING UNDER SECTION 147 OR THE CORRESPONDING SECTION 34 OF THE EARLIER ACT IN THE LIGHT OF THE SAFEGUARDS WHICH HAVE BEEN LAID DOWN AS CONDITIONS PRECEDENT O R AS FETTERS ON THE JURISDICTION OF THE AUTHORITY IN WIDER PUBLIC INTER EST. SECTION 147 PROVIDES FOR REASSESSMENT OF THE INCOME ESCAPING ASSESSMENT AS U NDER : '147. IF - (A) THE INCOME-TAX OFFICER HAS REASON TO BELIEVE TH AT BY REASON OF THE OMISSION OR FAILURE ON THE PART OF AN ASSESSEE TO MAKE A RET URN UNDER SECTION 139 FOR ANY ASSESSMENT YEAR TO THE INCOME-TAX OFFICER OR TO DIS CLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THA T YEAR, INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THAT YEAR, OR (B) NOTWITHSTANDING THAT THERE HAS BEEN NO OMISSION OR FAILURE AS MENTIONED IN CLAUSE (A) ON THE PART OF THE ASSESSEE, THE INCOME- TAX OFFICER HAS IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153, A SSESS OR REASSESS SUCH INCOME OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE , AS THE CASE MAY BE, FOR METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 3 THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN SECTION S 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR).' 5. IT IS NOT NECESSARY TO CONSIDER THE EXPLANATION. SECTION 148 PROVIDES FOR ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT AS UNDER : '148. (1) BEFORE MAKING THE ASSESSMENT, REASSESSMEN T OR RECOMPUTATION UNDER SECTION 147, THE INCOME-TAX OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE CONTAINING ALL OR ANY OF THE REQUIREMENTS WHICH MAY BE INCLUDED IN A NOTICE UNDER SUB-SECTION (2) OF SECTION 139; AND THE PROVI SIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF THE NOTICE WERE A NOTICE ISSUED UNDER THAT SUB-SECTION. (2) THE INCOME-TAX OFFICER SHALL, BEFORE ISSUING AN Y NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO.' 6. SECTION, 149 PROVIDES FOR TIME LIMITS FOR SUCH N OTICE. SECTION 151 PROVIDES AS UNDER : '(1)NO NOTICE SHALL BE ISSUED UNDER SECTION 148 AFT ER THE EXPIRY OF EIGHT YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLES S THE BOARD IS SATISFIED ON THE REASONS RECORDED BY THE INCOME-TAX OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. (2)NO NOTICE SHALL BE ISSUED UNDER SECTION 148 AFTE R THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLES S THE COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY THE THE INCOME -TAX OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE.' 7. THE PROVISION BEING FOR REOPENING THE FINALLY CO NCLUDED ASSESSMENT THIS SPECIAL PROVISION HAS BEEN CONSIDERED AS PROPERLY H EDGED IN BY THESE VARIOUS STATUTORY SAFEGUARDS, BECAUSE THE INCOME HAS ESCAPE D THE ORIGINAL ASSESSMENT EVEN WHEN THE PROCEDURE OF ORIGINAL ASSESSMENT CONT EMPLATED SUCH WIDE POWERS OF APPEAL, REVISION AND EVEN RECTIFICATION U NDER THE VARIOUS PROVISIONS OF THE ACT. THAT IS WHY THE CONDITIONS LAID DOWN FO R THE REASONABLE BELIEF TO BE REACHED BY THE INCOME-TAX OFFICER UNDER SUB-CLAUSE (A) OR UNDER SUB-CLAUSE (B), AND HIS RECORDING OF THE REASONS UNDER SECTION 148(2), AND FOR THE SANCTION BEFORE ISSUING THE SAID NOTICE UNDER SECTION 148 BY THE HIGHER AUTHORITIES UNDER SECTION 151 HAVE BEEN CONSIDERED AS MANDATORY CONDITIONS. THE REASONS WHICH ARE NOW IN TERMS UNDER SECTION 148(2) REQUIRE D TO BE RECORDED BY THE INCOME-TAX OFFICER HAVE NOT TO BE COMMUNICATED TO T HE ASSESSEE BUT THEY ARE TO BE AVAILABLE FOR THE AUTHORITIES WHO HAVE TO GIVE T HE SANCTION. 8. IN KASTURBHAI LALBHAI V. R.K. MALHOTRA, INCOME-TAX OFFICER [1971] 80 ITR 188 (GUJ) BHAGWATI C.J. (AS HE THEN WAS) IN TERMS P OINTED OUT AT PAGE 191 THAT IT MUST BE REMEMBERED THAT SECTION 147 EMPOWERED TH E INCOME-TAX OFFICER TO DISTURB THE FINALITY OF AN ASSESSMENT ALREADY MADE AND TO ASSESS OR REASSESS THE INCOME OF THE ASSESSEE. SUCH AN ACTION IS BOUND TO RESULT IN CONSIDERABLE ANXIETY AND HARASSMENT TO THE ASSESSEE AND THE LEGI SLATURE HAS, THEREFORE, IMPOSED CERTAIN CONDITIONS SUBJECT TO WHICH ALONE T HE INCOME-TAX OFFICER CAN REOPEN AN ASSESSMENT WHICH IS ALREADY CONCLUDED. TH ESE CONDITIONS ARE SUCCINCTLY STATED THEIR LORDSHIPS IN JOHRI LAL (HUF) V. COMMISSIONER OF METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 4 INCOME-TAX [1973] 88 ITR 439 (SC). THERE THE QUESTION HAD ARIS EN BECAUSE THE INCOME-TAX OFFICER HAD PROCEEDED ON THE BASIS OF SE CTION 34(1)(B) OF THE OLD ACT AND NOT ON THE BASIS OF SECTION 34(1)(A) AND TH EREFORE, IT WAS HELD THAT IN THE ABSENCE OF MATERIAL ON RECORD TO SHOW THAT THE INCOME-TAX OFFICER HAD FORMED THE REQUISITE BELIEF, RECORDED HIS REASONS F OR TAKING ACTION UNDER SECTION 34(1)(A) AND OBTAINED THE SANCTION OF THE C ENTRAL BOARD OF REVENUE OR THE COMMISSIONER, AS THE CASE MAY BE, IT IS NOT OPE N TO THE APPELLATE TRIBUNAL TO JUSTIFY THE PROCEEDINGS TAKEN BY THE INCOME-TAX OFFICER UNDER SECTION 34(1)(A). THREE CONDITION WERE FOUND TO BE MANDATOR Y BY THEIR LORDSHIPS. AT PAGE 441, IT WAS POINTED OUT THAT BEFORE PROCEEDING S UNDER SECTION 34(1)(A) COULD BE VALIDLY INITIATED, THE INCOME-TAX OFFICER MUST HAVE REASONS TO BELIEVE THAT BY REASON OF THE OMISSION OR FAILURE ON THE PA RT OF THE ASSESSEE TO MAKE A RETURN OF HIS INCOME UNDER SECTION 22 FOR ANY YEAR OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT YEAR, INCOME, PROFIT AND GAINS CHARGEABLE TO INCOME-TAX HAVE ESCAPED ASSESSM ENT FOR THAT YEAR, OR HAVE BEEN UNDER ASSESSED OR ASSESSED AT TOO LOW A RATE, OR HAVE BEEN MADE THE SUBJECT-MATTER OF EXCESSIVE RELIEF UNDER THE ACT, O R EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE HAVE BEEN COMPUTED. THE FORM ATION OF THE REQUIRED OPINION BY THE INCOME-TAX OFFICER IS A CONDITION PR ECEDENT. WITHOUT FORMATION OF SUCH AN OPINION HE WILL NOT HAVE JURISDICTION TO INITIATE PROCEEDINGS UNDER SECTION 34(1)(A). THE FULFILLMENT OF THIS CONDITION IS NOT A MERE FORMALITY BUT IT IS MANDATORY. THE FAILURE TO FULFILL THAT CONDITION WOULD VITIATE THE ENTIRE PROCEEDINGS. AS PER THE SETTLED LEGAL POSITION, THE INCOME-TAX OFFICER WOULD BE ACTING WITHOUT ANY JURISDICTION IF THE REASON FOR H IS BELIEF THAT THE CONDITION ARE SATISFIED NOT EXIST OR WAS NOT MATERIAL OR RELEVANT TO THE BELIEF REQUIRED BY THAT SECTION. COURTS WOULD NOT GO INTO THE SUFFICIENCY O F THE REASONS WHICH PERSUADED THE INCOME-TAX OFFICER TO INITIATE PROCEE DINGS UNDER SECTION 34(1)(A) OF THE ACT BUT THE COURTS WOULD EXAMINE TH E RELEVANCY OF THE REASONS WHICH PERSUADED THE INCOME-TAX OFFICER TO TAKE PROC EEDINGS UNDER SECTION 34(1)(A). IT WAS FURTHER POINTED OUT THAT THE FORMA TION OF THE REQUIRED BELIEF WAS NOT THE ONLY REQUIREMENT. THE INCOME-TAX OFFICE R WAS FURTHER REQUIRED BY SECTION 34 TO RECORD HIS REASONS FOR TAKING ACTION UNDER SECTION 34(1)(A) AND OBTAIN THE SANCTION OF THE CENTRAL BOARD OF REVENUE OR THE COMMISSIONER, AS THE CASE MAY BE. IT WAS POINTED OUT THAT THE COMMIS SIONER OR THE BOARD OF REVENUE, WHILE GRANTING SANCTION WOULD HAVE TO EXAM INE THE REASONS GIVEN BY THE INCOME-TAX OFFICER AND COME TO AN INDEPENDENT D ECISION AND THE AUTHORITY IN QUESTION SHOULD NOT ACT MECHANICALLY. THE INCOME -TAX OFFICER HAVING HIMSELF PROCEEDED ONLY UNDER SECTION 34(1)(B) AND N OT ON THE BASIS OF SECTION 34(1)(A), THE ORDER IN THOSE CIRCUMSTANCES COULD NO T BE JUSTIFIED UNDER SECTION 34(1)(A). THEREFORE, IT WAS HELD THAT WITHOUT THE T HREE RELEVANT CONDITIONS PRECEDENT BEING FIRST FULFILLED, THE PROCEEDINGS CO ULD NOT BE INITIATED FOR REASSESSMENT UNDER SECTION 34(1)(A). THE SAME WOULD BE TRUE FOR SECTION 34(1)(B) WHERE THE INCOME-TAX OFFICER HAD IN CONSEQ UENCE OF INFORMATION IN HIS POSSESSION TO FROM THAT BELIEF THAT INCOME CHAR GEABLE TO TAX HAD ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. THEREFORE, THES E THREE CONDITION PRECEDENT HAVING BEEN INTRODUCED BY WAY OF SAFEGUAR DS IN WIDER PUBLIC INTEREST SO THAT THE FINALLY CONCLUDED PROCEEDING W HICH AT THE TIME OF ORIGINAL ASSESSMENT COULD BE REOPENED THROUGH INITIAL PROCED URE OF APPEAL, REVISION OR RECTIFICATION BEFORE THE ASSESSMENT BECAME FINAL CO ULD NOT BE LIGHTLY REOPENED, WITH THE CONSEQUENT HARDSHIP TO THE ASSESSEE AND AL SO UNNECESSARY WASTE OF PUBLIC TIME AND MONEY IN SUCH PROCEEDINGS. THEREFO RE, THESE ARE TREATED AS FETTERS ON THE JURISDICTION OF THE AUTHORITY REOPEN ING THE PROCEEDING THE METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 5 PROCEEDINGS UNDER SECTIONS 147 AND 148 READ WITH SE CTION 151. THAT IS WHY IN COMMISSIONER OF INCOME-TAX V.KURBAN HUSSAIN IBRAHIM JI MITHIBORWALA [1971] 82 ITR 821 (SC), THEIR LORDSHIPS POINTED OU T THAT IT WAS WELL-SETTLED THAT THE JURISDICTION OF THE INCOME-TA X OFFICER TO REOPEN ASSESSMENT UNDER SECTION 34 WAS DEPENDENT UPON THE ISSUANCE OF A VALID NOTICE. IF THE NOTICE ISSUED BY HIM WAS INVALID FOR ANY REASON, THE ENTIRE PROCEEDINGS TAKEN BY HIM WOULD BECOME VOID FOR WANT OF JURISDICTION. THEREFORE, THE VIEW TAKEN BY THIS COURT WAS UPHELD THAT THE NOTICE IN QUESTION BY THE INCOME-TAX OFFICER WHICH SOUGHT TO REOPEN TH E ASSESSMENT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1948-49, WHEN IN F ACT HE REOPENED THE ASSESSMENT FOR THE YEAR 1949-50, BEING AN INVALID N OTICE, THE INCOME-TAX OFFICER HAD NO JURISDICTION TO REVISE THE ASSESSMEN T OF THE ASSESSEE FOR THE YEAR 1949-50. IN S. NARAYANAPPA V. COMMISSIONER OF INCOME-TAX [1967] 63 ITR 219 (SC), AT PAGE 222, THEIR LORDSHIPS POINTED OUT THAT THE PROCEEDING FOR ASSESSMENT OR REASSESSMENT UNDER SECTION 34(1)(A) S TARTED WITH THE ISSUE OF A NOTICE AND IT WAS ONLY AFTER THE SERVICE OF THE NOT ICE THAT THE ASSESSEE, WHOSE INCOME WAS SOUGHT TO BE ASSESSED OR REASSESSED, BEC AME A PARTY TO THOSE PROCEEDINGS. THE EARLIER STAGES OF THE PROCEEDING F OR RECORDING THE REASONS OF THE INCOME-TAX OFFICER AND FOR OBTAINING THE SANCTI ON OF THE COMMISSIONER WERE ADMINISTRATIVE IN CHARACTER AND WERE NOT QUASI -JUDICIAL. THERE WAS NO REQUIREMENT IN ANY PROVISIONS OF THE ACT OR ANY SEC TION LAYING DOWN AS A CONDITION FOR THE INITIATION OF PROCEEDINGS THAT TH E REASONS WHICH INDUCED THE COMMISSIONER TO ACCORD SECTION 34 MUST ALSO BE COMM UNICATED TO THE ASSESSEE. THE INCOME-TAX OFFICER NEED NOT COMMUNICA TE TO THE ASSESSEE THE REASONS WHICH LED HIM TO INITIATE THE PROCEEDINGS U NDER SECTION 34. THESE REASONS HAVE TO BE CONSIDERED AS POINTED OUT BY THE IR LORDSHIPS IN THE OTHER DECISION, WHEN THE MATTER COMES FOR SANCTION BY THE AUTHORITY. THAT ITSELF MAKES IT CLEAR THAT THE SCHEME OF THESE PROVISIONS IS TO LAY DOWN THESE SAFEGUARDS IN THE WIDER PUBLIC INTEREST BY WAY OF F ETTERS ON THE JURISDICTION OF THE AUTHORITY ITSELF AND THEY COULD NOT BE SAID TO BE MERELY FOR THE PRIVATE BENEFIT OF THE INDIVIDUAL ASSESSEE CONCERNED AS THE ASSESSEE CONCERNED IS NOT EVEN INTENDED TO BE SUPPLIED WITH THE REASONS FOR R EOPENING THE ASSESSMENT AND THE ENTIRE MATTER IS LOOKED UPON AS AN ADMINIST RATIVE MATTER, AT THE EARLIER STAGES WHERE THE INCOME-TAX OFFICER IS TO RECORD HI S REASONS AND OBTAIN SANCTION OF THE COMMISSIONER. 9. THE LEGAL POSITION ABOUT WAIVER OF SUCH A MANDAT ORY PROVISION CREATED IN THE WIDER PUBLIC INTEREST TO OPERATE AS FETTER ON T HE JURISDICTION OF THE AUTHORITY IS WELL SETTLED THAT THERE COULD NEVER BE WAIVER, F OR THE SIMPLE REASON THAT IN SUCH CASES JURISDICTION COULD NOT BE CONFERRED ON T HE AUTHORITY BY MERE CONSENT, BUT ONLY ON CONDITIONS PRECEDENT FOR THE E XERCISE OF JURISDICTION BEING FULFILLED. IF THE JURISDICTION CANNOT BE CONFERRED BY CONSENT, THERE WOULD BE NO QUESTION OF WAIVER, ACQUIESCENCE OR ESTOPPEL OR THE BAR OF RESJUDICATE BEING ATTRACTED BECAUSE THE ORDER IN SUCH CASES WOULD LAC K INHERENT JURISDICTION UNLESS THE CONDITIONS PRECEDENT ARE FULFILLED AND I T WOULD BE A VOID ORDER OR A NULLITY IS NOW WELL BROUGHT OUT IN THE DECISION BET WEEN 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 I N BREACH OF THE MANDATORY PROVISION IS PER FORCE A NULLITY. THE PASSAGE IN MA CNAMARA ON NULLITIES AND IRREGULARITIES, REFERRED TO IN ASHUTOSH SIKDAR V. B IHARI LAL KIRTANIA [1907] ILR 35 CAL 61 [FB], AT PAGE 72, WAS IN TERMS RELIED UPO N AS UNDER : METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 6 '....NO HARD AND FAST LINE CAN BE DRAWN BETWEEN A N ULLITY AND AN IRREGULARITY; BUT THIS MUCH IS CLEAR, THAT AN IRREGULARITY IS A D EVIATION FROM A RULE OF LAW WHICH DOES NOT TAKE AWAY THE FOUNDATION OR AUTHORIT Y 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 BEI NG VALIDATED.' 10. THEREAFTER, THEIR LORDSHIPS POINTED OUT THAT WH ETHER A PROVISION FELL UNDER ONE CATEGORY OR THE OTHER WAS NOT EASY OF DISCERNME NT, AS IN THE ULTIMATE ANALYSIS, IT DEPENDED UPON THE NATURE, SCOPE AND OB JECT OF THE PARTICULAR PROVISION. THEIR LORDSHIPS IN TERMS APPROVED A WORK ABLE TEST LAID DOWN BY JUSTICE COLERIDGE IN HOLMES V. RUSSEL [1841] 9 DOWL 487 AS UNDER : 'IT IS DIFFICULT SOMETIMES TO DISTINGUISH BETWEEN A N IRREGULARITY AND A NULLITY; BUT THE SAFEST RULE TO DETERMINE WHAT IS AN IRREGUL ARITY AND WHAT IS A NULLITY IS TO SEE WHETHER THE PARTY CAN WAIVE THE OBJECTION; I F HE CAN WAIVE IT,IT AMOUNTS TO AN IRREGULARITY; IF HE CANNOT, IT IS A NULLITY.' 11. THEREAFTER IT WAS POINTED OUT THAT A WAIVER IS AN INTENTIONAL RELINQUISHMENT OF A KNOWN RIGHT, BUT OBVIOUSLY AN OBJECTION TO JUR ISDICTION COULD NOT BE WAIVED, FOR CONSENT COULD NOT GIVE A COURT JURISDIC TION WHERE THERE WAS NONE. EVEN IF THERE WAS INHERENT JURISDICTION, CERTAIN PR OVISIONS COULD NOT BE WAIVED. WHAT CAN BE WAIVED WOULD BE ONLY THOSE PROVISIONS W HICH ARE FOR THE PRIVATE BENEFIT AND PROTECTION OF AN INDIVIDUAL IN PRIVATE CAPACITY, WHICH MIGHT BE DISPENSED WITH WITHOUT INFRINGING ANY PUBLIC RIGHT OR PUBLIC POLICY. 12. THIS SETTLED LEGAL POSITION WAS AGAIN REITERATE D IN SUPERINTENDENT OF TAXES V.ONKARMALNATHMAL TRUST , AIR 1975 SC 2065, WHERE THE QUESTION HAD ARISEN IN THE CONTEXT OF THE ASSAM TAXATION (ON GOODS CARR IED BY ROAD AND ON INLAND WATERWAYS) ACT , 1961. THE ASSESSEE HAD OBTAINED AN INJUNCTION ORDER AGAINST THE STATE IN A WRIT PETITION CHALLENG ING THE VALIDITY OF THE ACT. THE ASSESSEE HAD NOT SUBMITTED THE RETURN UNDER SECTION 7(1) AND UNDER SECTION 7(2) A NOTICE HAD TO BE ISSUED ONLY WITHIN TWO YEARS FR OM THE END OF THE RETURN PERIOD. THE PROCEDURE OF BEST JUDGMENT ASSESSMENT W AS LAID DOWN IN SECTION 9(4) AND THE QUESTION AROSE WHETHER, IN VIEW OF THE INJ UNCTION ORDER OBTAINED BY THE ASSESSEE, IGNORING THE TWO YEARS' LIMIT LAID DOWN AS A FETTER FOR ISSUANCE OF THE NOTICE UNDER SECTION 7(2) , THE BEST JUDGMENT ASSESSMENT PROCEDURE WAS PERMISSIBLE. AT PAGE 2070, THE LEARNED CHIEF JUSTIC E FIRST HELD THAT IF A RETURN UNDER SECTION 7(1) WAS NOT MADE, THE SERVICE OF A NOTICE UNDER SECTION 7(2) OF THE ACT WAS THE ONLY METHOD FOR INITIATION OF A VAL ID ASSESSMENT PROCEEDING UNDER THE ACT. THE PERIOD OF TWO YEARS UNDER SECTION 7(2) WAS A FETTER ON THE POWER OF THE AUTHORITY AND WAS NOT JUST A BAR OF TI ME. IT WAS THE SCHEME OF THE ACT THAT THE SERVICE DO NOTICE WITHIN TWO YEARS FRO M THE END OF THE RETURN PERIOD WAS AN IMPERATIVE REQUIREMENT FOR INITIATION OF ASSESSMENT PROCEEDING AS ALSO REASSESSMENT PROCEEDING UNDER THE ACT. FURT HER PROCEEDING, AT PAGE 2071, THEIR LORDSHIPS POINTED OUT THE SETTLED LEGAL DISTINCTION BETWEEN THE PROVISIONS WHICH CONFERRED JURISDICTION AND PROVISI ONS WHICH REGULATED PROCEDURE, BECAUSE JURISDICTION COULD NEITHER TO WA IVED NOR TREATED BY CONSENT, WHILE A PROCEDURAL PROVISION COULD BE WAIV ED 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 STATUR E BECAUSE THERE COULD NOT BE ANY WAIVER OF A STATUTORY REQUIREMENT OR PROVISION WHICH WENT TO THE METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 7 JURISDICTION OF ASSESSMENT. THE ORIGIN OF ASSESSMEN T WAS EITHER AS ASSESSEE FILING A RETURN AS CONTEMPLATED IN THE ACT OR AN AS SESSEE BEING CALLED UPON TO FILE A RETURN AS CONTEMPLATED IN THE ACT. THE RESPO NDENTS 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 A CT RELATED TO THE EXERCISE OF JURISDICTION UNDER THE ACT IN ALL CASES. THE LEARNE D 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 CON FER POWER ON THE STATE ON THE OTHER. THEREFORE, EVEN IN THE CONTEXT OF SUCH A REVENUE STATUTE LIKE A TAXATION MEASURE SUCH FETTER ON THE JURISDICTION BE ING A FETTER LAID TO PROTECT PUBLIC, ON WIDER GROUND OF PUBLIC POLICY, IT WAS HE LD THAT SUCH PROVISIONS WHICH CONFER JURISDICTION ON ASSESSMENT AND REASSES SMENT COULD NEVER BE WAIVED FOR THE SIMPLE REASON THAT JURISDICTION COUL D NEITHER BE WAIVED NOR CREATED BY CONSENT. IN THE CONCURRING JUDGMENT HIS LORDSHIP, BEG. J., AT PAGE 2077, ALSO POINTED OUT THAT IF THE NOTICE UNDER SECTION 7(2) WAS A CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION TO MAKE T HE BEST JUDGMENT ASSESSMENT, THE DOCTRINE OF WAIVER COULD NEVER CONFER JURISDICT ION SO AS TO ENABLE THE PARTIES TO AVOID THE EFFECT OF VIOLATING A MANDATOR Y PROVISION ON A JURISDICTIONAL MATTER EVEN BY AGREEMENT. THIS DECIS ION COMPLETELY SETTLES THE LEGAL POSITION. IT MAKES A DISTINCTION BETWEEN THE PROVISIONS WHICH CONFER JURISDICTION AND PROVISIONS WHICH MERELY REGULATE T HE PROCEDURE BY HOLDING THAT SUCH PROVISIONS WHICH CONFER JURISDICTION OR S UCH MANDATORY PROVISIONS WHICH ARE ENACTED IN PUBLIC INTEREST ON GROUND OF P UBLIC POLICY EVEN IN SUCH REVENUE STATUTES COULD NOT BE WAIVED, BECAUSE OF TH E UNDERLYING PRINCIPLE THAT JURISDICTION COULD NEITHER BE WAIVED NOR CREATED BY CONSENT. 13. THE DECISION IN DIRECTOR OF INSPECTION OF INCOME-TAX V. POORAN MALL & SONS (1974) 96 ITR 390 (SC), WHICH IS SO VEHEMENTLY REL IED UPON BY THE LEARNED STANDING COUNSEL, DOES NOT DETRACT FROM THE AFORESAID RATIO, AND IN FACT, REITERATES THE SAME. IN THAT CASE, THE QUESTI ON HAD ARISEN REGARDING THE WAIVER OF A PROVISION IN SECTION 132(5) OF THE INCOME-TAX ACT WHICH PERMITTED THE INCOME-TAX OFFICER TO PASS AN ORDER OF SEIZURE WITHIN 90 DAYS. THE PROVISION WAS HELD TO BE NOT A MANDATORY PROVISION AND AT PAGE 400 IT WAS ALSO POINTED OUT THAT THERE WAS NO QUESTION OF THE PERIOD OF LIMITATION UNDER SECTION 132(5) INVOLVING PUBLIC INTEREST. IT WAS INTENDED FOR THE BENEFIT OF THE PARTIES. THE SETTLED PRINCIPLE WHICH HAD BEE N STATED ON CRAIES ON STATUTE LAW, 6TH EDITION, AT PAGE 259, WAS AS UNDER : 'AS A GENERAL RULE, THE CONDITIONS IMPOSED BY STATU TES WHICH AUTHORISE LEGAL PROCEEDINGS ARE TREATED AS BEING INDISPENSABLE TO G IVING THE COURT JURISDICTION. BUT IF IT APPEARS THAT THE STATUTORY CONDITIONS WER E INSERTED BY THE LEGISLATURE SIMPLY FOR THE SECURITY OR BENEFIT OF THE PARTIES T O THE ACTION THEMSELVES, AND THAT NO PUBLIC INTERESTS ARE INVOLVED, SUCH CONDITI ONS WILL NOT BE CONSIDERED AS INDISPENSABLE, AND EITHER PARTY MAY WAIVE THEM WITH OUT AFFECTING THE JURISDICTION OF THE COURT.' 14. THEREFORE, THE PERIOD OF LIMITATION PRESCRIBED UNDER SECTION 132(5) BEING INTENDED FOR THE BENEFIT OF THE PERSON CONCERNED, I T WAS HELD THAT THE ASSESSEE COULD WAIVE THAT PROVISION. THAT DECISION COULD NOT , THEREFORE,HE INVOKED IN THE PRESENT CONTEXT OF SUCH A JURISDICTIONAL PROVISION WHICH IS ALSO A MANDATORY PROVISION ENACTED IN PUBLIC INTEREST IN THIS REVENU E STATUTE AS EARLIER POINTED OUT AND WHICH COULD NEVER BE WAIVED. METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 8 15. BESIDES, THE QUESTION OF WAIVER COULD NEVER BE RAISED IF THE PERSON HAD NO KNOWLEDGE OF HIS LEGAL RIGHTS SO THAT THE COULD MAK E ANY SUCH CONSCIOUS WAIVER. IN THE PRESENT CASE, THE APPELLATE ASSISTAN T COMMISSIONER IN HIS ORDER HAD POINTED OUT THAT IT WAS WHEN HE PERUSED THE ORD ER SHEET THAT HE FOUND THAT THERE WERE NO REASONS RECORDED BY THE INCOME-TAX OF FICER FOR ISSUING NOTICE UNDER SECTION 148 . THE ENTRY ON THE ORDER SHEET DATED SEPTEMBER 3, 1 963, SIMPLY CONTAINED THE DIRECTION : 'ISSUE NOTICE UNDE R SECTION 148 ', AND NO REASONS WERE RECORDED BY THE INCOME-TAX OFFICER BEF ORE REOPENING THE ASSESSMENT. EVEN THE RELEVANT SUB-SECTION OF SECTION 147 UNDER WHICH THE ASSESSMENT WAS SOUGHT TO BE REOPENED WAS NOT MENTIO NED. THESE FACTS, PRIMA FACIE, DISCLOSED THAT THE REASONS CAME TO THE NOTIC E OF THE ASSESSEE FOR THE FIRST TIME WHEN THE APPELLATE ASSISTANT COMMISSIONER PERU SED THIS ORDER SHEET AND BROUGHT THIS FACT TO THE NOTICE OF THE ASSESSEE. EV EN ON THAT GROUND, THEREFORE, THERE CAN BE NO QUESTION OF ANY WAIVER ON THE FACTS OF THE PRESENT CASE. 16. EVEN THE ALTERNATIVE GROUND OF FINALITY OF THIS ORDER OF THE TRIBUNAL SUFFERS FROM THE SAME INFIRMITY, AS THE TRIBUNAL HAS FAILED TO NOTICE THIS MATERIAL DISTINCTION BETWEEN A MERE PROCEDURAL PROVISION WHI CH COULD BE WAIVED AND SUCH JURISDICTIONAL PROVISION OR A MANDATORY PROVIS ION ENACTED IN PUBLIC INTEREST WHICH COULD NOT BE WAIVED, BECAUSE BY CONS ENT NO JURISDICTION COULD BE CONFERRED ON THE AUTHORITY UNLESS THE CONDITIONS PRECEDENT WERE FIRST FULFILLED. IN DASAMUNI REDDY V. APPA RAO , AIR 1974 SC 2089, 2092, SUCH A QUESTION OF WAIVER WAS EXAMINED ALSO IN THE CONTEXT OF THE BAR OF ESTOPPEL OR OF RES JUDICATA. AT PAGE 2091, IT WAS US EXERCISE OF J URISDICTION. IF THERE IS WANT OF JURISDICTION THE WHOLE PROCEEDING IS CORAM NON JUDI CE. THE ABSENCE OF A CONDITION NECESSARY TO FOUND THE JURISDICTION TO MA KE AN ORDER TO GIVE A DECISION DEPRIVES THE ORDER OR DECISION OF ANY CONC LUSIVE EFFECT. (SEE HALSBURY'S LAWS OF ENGLAND, 3RD EDITION, VOLUME 15, PARAGRAPH 384). FURTHER PROCEEDING AT PAGE 2092, IT WAS POINTED OUT THAT JU ST AS THE COURTS NORMALLY DID NOT PERMIT CONTRACTING OUT OF THE ACTS SO THERE COULD BE NO CONTRACTING IN. A STATUS OF CONTROL OF PREMISES UNDER THE RENT CONT ROL ACTS COULD NOT BE ACQUIRED EITHER BY ESTOPPEL OR BY RES JUDICATA. THE IR LORDSHIPS IN TERMS HELD THAT THE PRINCIPLE WAS THAT NEITHER ESTOPPEL NOR RE S JUDICATA COULD GIVE THE COURT JURISDICTION UNDER THE ACTS WHICH THOSE ACTS SAID IT WAS NOT TO HAVE. THEREFORE, BAR OF RES JUDICATA OR ESTOPPEL OR WAIVE R WERE NEGATIVED IN SUCH A CASE WHERE THE PLEA WAS OUTSIDE THE AMBIT OF THE RE NT CONTROL ACT, FOR THE SIMPLE REASON THAT AS ONE COULD NOT CONFER JURISDIC TION BY CONSENT, SIMILARLY ONE COULD NOT BY AGREEMENT WAIVE EXCLUSIVE JURISDIC TION OF THE RENT COURTS OVER THE BUILDINGS IN QUESTION. IT IS TRUE THAT SECTION 254(4) IN TERMS PROVIDES THAT SAVE AS PROVIDED IN SECTION 256 (WHICH PROVIDES FOR THE REFERENCE TO THE HIGH COURT), ORDERS PASSED BY THE APPELLATE TRIBUNAL ON APPEAL SHALL BE FINAL. THAT FINALITY OR CONCLUSIVENESS COULD ONLY ARISE IN RESP ECT OF ORDERS WHICH ARE COMPETENT ORDERS WITH JURISDICTION AND IF THE PROCE EDINGS OF REASSESSMENT ARE NOT VALIDLY INITIATED AT ALL, THE ORDER WOULD BE AV OID ORDER AS PER THE SETTLED LEGAL POSITION WHICH COULD NEVER HAVE ANY FINALITY OR CONCLUSIVENESS. IF THE ORIGINAL ORDER IS WITHOUT JURISDICTION IT WOULD BE ONLY A NULLITY CONFIRMED IN FURTHER APPEALS. IF THE ESSENTIAL DISTINCTION IS BO RNE IN MIND IN SUCH CASES WHEN THERE IS SUCH DEFECT OF JURISDICTION BECAUSE THE CO NDITIONS TO FOUND JURISDICTION ARE ABSENT, THE TRIBUNAL ALSO WOULD BE SUFFERING FR OM THE SAME DEFECT AND IT COULD NOT CONFER ANY JURISDICTION ON THE INCOME-TAX OFFICER BY MAKING THE REMAND ORDER, BECAUSE OF THE SETTLED LEGAL PRINCIPL E THAT CONSENT COULD NOT CONFER JURISDICTION WHEN JURISDICTION COULD BE CREA TED ONLY BY FULFILMENT OF THE METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 9 CONDITION PRECEDENT AS IN THE PRESENT CASE. THEREFO RE, NO QUESTION OF FINALITY OF THE REMAND ORDER COULD EVER ARISE IN THE PRESENT CO NTEXT, IF THE MANDATORY CONDITIONS FOR FOUNDING JURISDICTION FOR INITIATING REASSESSMENT PROCEEDING WERE ABSENT. THIS IS THE VIEW IN COMMISSIONER OF INCOME-TAX V. NANALAL TRIBHOVANDAS (1975) 100 ITR 734 (GUJ), AGREEING WITH THE MADRAS VIEW THAT THERE WOULD BE NO SUCH FINALITY BY REMAND BECAUSE C ONSENT COULD NOT CONFER JURISDICTION, AND SO, SUCH OBJECTION IN REGARD TO T HE VALIDITY OF THE NOTICE UNDER SECTION 34 COULD BE RAISED BEFORE THE APPELLATE ASSISTANT COM MISSIONER. 17. THE LEARNED STANDING COUNSEL IN THIS CONNECTION MARSHALLED IN AID THE DECISION IN NORTHERN RAILWAY CO-OPERATIVE CREDIT SOCIETY LTD. V . INDUSTRIAL TRIBUNAL, RAJASTHAN , AIR 1967 SC 1182; 31 FJR 511, WHICH COULD HARDLY BE INVOKED IN THE PRESENT CASE. THERE THE HIGH COURT I N WRIT JURISDICTION HAD HELD AT THE EARLIER STAGE THAT THE DISPUTE IN QUESTION W AS AN INDUSTRIAL DISPUTE AND, THEREFORE, THE REFERENCE BEING A COMPETENT REFERENC E, THE WRIT PETITION WAS DISMISSED. THE ORDER OF THE HIGH COURT WAS A FINAL JUDGMENT WHICH TERMINATED THE INDEPENDENT WRIT PROCEEDING. IT WAS HELD AT PAG E 1186 THAT ORDER HAVING NOT BEEN APPEALED BEFORE THE SUPREME COURT, IT HAD BECOME FINAL AND IT WAS NO LONGER OPEN TO THE PARTIES TO RAISE A PLEA OF JURIS DICTION IN APPEAL AGAINST THE SUBSEQUENT AWARD GIVEN BY THE INDUSTRIAL TRIBUNAL A FTER EXERCISING JURISDICTION WHICH THE TRIBUNAL WAS PERMITTED TO EXERCISE BY THE ORDER OF THE HIGH COURT. THESE WERE COMPETENT PROCEEDINGS AND THE INDEPENDEN T WRIT PROCEEDING WAS ALSO FINALLY TERMINATED AND, THEREFORE, THIS FINAL ORDER PRECLUDED THE PARTIES FROM REAGITATING THE SAME QUESTION BEFORE THE INDUS TRIAL TRIBUNAL. THEIR LORDSHIPS DISTINGUISHED THE EARLIER DECISION IN SATYADHYAN GHOSAL V. SMT.DEORAJINDEBI , AIR 1960 SC 941, WHERE THE QUESTION HAD ARISEN AB OUT THE APPLICABILITY OF SECTION 28 OF THE CALCUTTATHIKA TE NANCY ACT, 1949, AND THE PLEA HAVING BEEN REJECTED BY THE MUNSIF TRYING A SU IT, REVISION, THE HIGH COURT HAD HELD THAT OPERATION OF SECTION 28 OF THE ACT WAS NOT AFFECTED BY THE SUBSEQUENT AMENDMENT ACT AND THE CASE WAS REMANDED TO THE MUNSIF FOR DISPOSAL ACCORDING TO LAW. AFTER THE FINAL DECREE W AS PASSED BY THE MUNSIF AND THE APPEAL FINALLY CAME TO THE SUPREME COURT, IT WA S HELD BY THE SUPREME COURT THAT THE ORDER OF THE HIGH COURT HOLDING SECTION 28 TO BE APPLICABLE COULD NOT OPERATE AS RES JUDICATA IN APPEAL BEFORE THE SUPREME COURT, BECAUSE THE HIGH COURT'S ORDER OF REMAND WAS MERELY AN INTE RLOCUTORY ORDER, WHICH DID NOT TERMINATE THE PROCEEDING PENDING BEFORE THE MUNSIF AND WHICH DID NOT TERMINATE THE PROCEEDING PENDING BEFORE THE MUNSIF AND WHICH HAD NOT BEEN APPEALED FROM AT THAT STAGE. CONSEQUENTLY, IN THE A PPEAL FROM THE FINAL DECREE OR ORDER IT WAS OPEN TO THE PARTY CONCERNED TO CHAL LENGE THE CORRECTNESS OF THE HIGH COURT'S DECISION. THE TWO SPECIAL FEATURES WHI CH DISTINGUISHED THAT CASE WERE : ONE, THAT THE ORDER OF THE HIGH COURT WHICH WAS RELIED UPON TO INVOKE THE PRINCIPLE OF RES JUDICATA WAS AN INTERLOCUTORY ORDER, AND THE OTHER, THAT IT WAS MADE IN A PENDING SUIT WHICH AS A RESULT OF THA T ORDER DID NOT FINALLY TERMINATE. IN THE PRESENT CASE ALSO THE REMAND ORDE R DID NOT TERMINATE THE PROCEEDINGS AT THE EARLIER STAGE. IN FACT, NO QUEST ION 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 B AR OF RES JUDICATA IS THE CONDITION ABOUT THE COMPETENCE OF THE COURT. SIMILA RLY, 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 METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 10 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 THE INCOME-TAX OFFICER, IF THE CONDITIONS TO FOUND HIS JURISDICTION WERE AB SENT. 18. THEREFORE, IF THIS SETTLED POSITION WAS BORNE I N MIND, THE TRIBUNAL'S VIEW WAS CLEARLY ERRONEOUS THAT THE MATTER BECAME FINAL WHEN THE TRIBUNAL PASSED THE EARLIER REMAND ORDER SO THAT THIS POINT OF JURI SDICTION GOT FINALLY SETTLED, WHICH COULD NOT BE AGITATED UNLESS THE ASSESSEE HAD COME IN THE REFERENCE TO THIS COURT AT THAT STAGE. THE TRIBUNAL'S VIEW WAS A LSO INCORRECT THAT IN RESTORING THE CASE TO THE FILE OF THE INCOME-TAX OF FICER 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 REAS SESSMENT PROCEEDINGS WERE LEGALLY INITIATED WAS NOT KEPT OPEN. EVEN ON THE TH IRD QUESTION THE TRIBUNAL'S 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 WA S TAKEN UP BEFORE THE APPELLATE ASSISTANT COMMISSIONER, IT COULD BE WAIVE D AND IT COULD NOT BE REAGITATED. THEREFORE, IN VIEW OF THE SETTLED LEGAL POSITION OUR ANSWERS ON QUESTIONS NOS. 1 AND 2 ARE IN THE NEGATIVE, WHILE O UR ANSWER ON QUESTION NO. 3 IS IN THE AFFIRMATIVE, THAT IS TO SAY, ALL THE QUES TIONS ARE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. THE REFERENC E IS ACCORDINGLY DISPOSED OF AND THE COMMISSIONER SHALL PAY THE COSTS OF THE ASS ESSEE. 5. THE ASSESSEE`S ISSUE UNDER CONSIDERATION, IS SQU ARELY COVERED BY THE JUDGMENT OF THE HONBLE GUJRAT HIGH COURT IN THE CASE OF P. V. DOSHI (SUPRA).AS NOTICE U/S 143(2) HAS NOT ISSUED BY THE ASSESSING OFFICER TO F RAME THE ASSESSMENT U/S 147 / 148 OF THE ACT, THEREFORE THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER BECOMES VOID IN THE EYE OF LAW. THEREFORE, WE QUASH THE IMP UGNED ORDER OF THE LD. CIT(A). SINCE, WE HAVE ALLOWED THE APPEAL OF THE ASSESSEE O N TECHNICAL GROUND OF NON- ISSUANCE OF NOTICE U/S 143(2) OF THE ACT, THEREFOR E WE DO NOT ADJUDICATE THE OTHER GROUND RAISED BY THE ASSESSEE ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON 25.09.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 25/09/2019 ( SB, SR.PS ) METAL BOX INDIA LTD. ITA NO.1672/KOL/2017 ASSESSMENT YEAR:1994-95 PAGE | 11 COPY OF THE ORDER FORWARDED TO: 1. METAL BOX INDIA LTD. 2. ACIT, CIRCLE-11(1), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES