IN INCOME TAX APPELLATE TRIBUNAL, BENCH C KOLKATA [Before Hon ble Shri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM ] M.A.No.84/Kol/2016 (A/o ITA No.2680/Kol/2013) Assessment Year : 2000-01 Recon Valves Company -versus- D.C.I.T.- Circle-50, Kolkata Kolkata (PAN:AAEFR 2520C) (Appellant) (Respondent) For Appellant: Shri G.R.Sharma, Advocate For Respondent: Shri Rajat Kumar Kureel, JCIT,Sr.DR Date of Hearing : 23.09.2016. Date of Pronouncement : 19.10.2016. ORDER PER N.V.VASUDEVAN, JM: This is miscellaneous application filed by Assessee u/s.254(2) of Income Tax Act, 1961 (Act) praying for rectificattion of certain apparent errors in order of Tribunal dated 14.08.2015. 2. In above appeals by assessee assessee had in grounds of appeal both assessment years among other grounds, also raised ground with regard to validity of initiation of proceedings u/s 147 of Act. case was heard on 03.07.2015 and on that date ld. Counsel for assessee Shri S.Bagchi, Advocate had endorsed in grounds of appeal that grounds against initiation of proceedings u/s 147/148 of Act are not pressed. Tribunal in impugned order has observed that ground of jurisdictional issue for initiation of proceedings u/s 147 of Act was not pressed and hence same is being dismissed as not pressed. M.A.No.84/Kol/2016 A/o ITA NO.2680/Kol/2013-Recon Valves Company. A.Y.2000-01 1 3. In this Miscellaneous application, assessee has contended that Tribunal omitted to consider issue with regard to validity of initiation of re-assessment proceedings. It has further been contended that omission to consider grounds against initiation of validity of re-assessment proceedings is mistake apparent from record. Assessee has made prayer that Tribunal should hear parties on issue of jurisdiction afresh and decide same. It has also been contended in para-6 of miscellaneous application as follows :- 6. omission to consider grounds against initiation of proceeding is mistake apparent from record and is also inconsonant with law as it is imperative to decide in appeal dispute over want of inherent and initial jurisdiction and question never abates. There is no estoppel against question of jurisdiction. Even assessee cannot waive question of jurisdiction because that would lead to violation of mandate in Art. 265 of Constitution enjoining that there cannot be any levy and collection without authority of law. Lack of jurisdiction means absence of such authority. 4. We have heard submissions of ld. Counsel for assessee, who reiterated stand of assessee as contained in miscellaneous application. He further placed reliance on decision of Hon ble Gujarat High Court in case of P.V.Doshi vs CIT 113 ITR 22 (Guj). In aforesaid decision Hon ble Gujarat High Court held that question of jurisdiction is pure question of law and merely because point was initially raised and not pressed, does not mean that it cannot be re-adjudicated. He further drew our attention to certain paragraphs of aforesaid judgment of Hon ble Gujarat High Court and submitted that issue of validity of assumption of jurisdiction cannot be given up and Tribunal ought to have adjudicated on said issue. 5. ld. DR submitted that in light of admitted position that assessee did not press for adjudication of ground with regard to validity of initiation of re-assessment proceedings, it cannot be said that there was any mistake apparent in face of order of Tribunal. Therefore miscellaneous application is liable to be dismissed. M.A.No.84/Kol/2016 A/o ITA NO.2680/Kol/2013-Recon Valves Company. A.Y.2000-01 2 6. We have given very careful consideration to rival submissions. As already stated appeal was head on 03.07.2015. ld. Counsel for assessee has made endorsement in record that ground with regard to initiation of validity of re-assessment proceedings u/s 147 of Act is not pressed. Tribunal has therefore not adjudicated aforesaid ground. Even in miscellaneous petition fact that ld. Counsel for assessee made endorsement giving up ground regarding validity of re-assessment proceedings, is not disputed. In such circumstances we are of view that it cannot be said that there was any mistake apparent from face of order of Tribunal calling for rectification u/s 254(2) of Act. As far as decision of Hon ble Gujarat High Court in case of P.V.Joshi (supra) is concerned it was case where original assessment of assessee was completed and in appeal against aforesaid order validity of initiation of re-assessment proceedings u/s 147 of Act was challenged by assessee before AAC. assessee however gave up said ground of appeal, before AAC. AAC confirmed order of AO on merits. assessee filed appeal against order of AAC before Tribunal. assessee had not challenged validity of assumption of jurisdiction u/s 147 of Act before Tribunal. Tribunal restored case to file of AO on addition made in assessment proceedings. AO again made addition to income as was done in original assessment proceedings. Against said order appeal was filed before AAC. Before AAC validity of assumption of jurisdiction u/s 147 of Act was challenged and AAC held that jurisdiction was not validly assumed. Against order of AAC appeal was filed before Tribunal. Tribunal held that since issue on merits alone was restored to file of AO only that point could have been adjudicated by AO. Tribunal held that AAC could not have entertained issue of jurisdiction and consequently allowed appeal of revenue. Against order of Tribunal assessee preferred reference before Hon ble Gujarat High Court. Hon ble Gujarat High Court held as follows :- provision of section 147 being for reopening finally concluded assessment this special provision has been considered as properly hedged in by these various statutory safeguards, because income has escaped original assessment even when procedure of original assessment contemplated such wide powers of appeal, revision M.A.No.84/Kol/2016 A/o ITA NO.2680/Kol/2013-Recon Valves Company. A.Y.2000-01 3 and even rectification under various provisions of Act. That is why conditions laid down for reasonable belief to be reached by ITO under sub- clause (a) or under sub-clause (b), and his recording of reasons under section 148(2), and for sanction before issuing said notice under section 148 by higher authorities under section 151 have been considered as mandatory conditions. reasons which are now in terms under section 148(2) required to be recorded by ITO have not to be communicated to assessee but they are to be available for authorities who have to give sanction. legal position about waiver of such mandatory provision created in wider public interest to operate as fetter on Jurisdiction of authority is well settled that there could never be waiver, for simple reason that in such cases jurisdiction could not be conferred on authority by mere consent, but only on conditions precedent for exercise of jurisdiction being fulfilled. If jurisdiction cannot be conferred by consent, there would be no question of waiver, acquiescence or estoppel or bar of res judicata being attracted because order in such cases would lack inherent jurisdiction unless conditions precedent are fulfilled and it would be void order or nullity. Besides, question of waiver could never be raised if person had no knowledge of his legal rights so that he could make any such conscious waiver. In instant case, AAC in his order had pointed out that it was when he perused order sheet that he found that there were no reasons recorded by ITa for issuing notice under section 148. entry on order sheet simply contained direction: "Issue notice under section 148", and no reasons were recorded by ITO before reopening assessment. Even relevant sub-section of section 147 under which assessment was sought to be reopened was not mentioned. These facts, prima facie, disclosed that reasons came to notice of assessee for first time when AAC perused this order sheet and brought this fact to notice of assessee. Even on that ground, therefore, there could be no question of any waiver on facts of instant case. Even alternative ground of finality of this order of Tribunal suffered from seme infirmity, as Tribunal had failed to notice this material distinction between mere procedural provision which could be waived and such jurisdictional provision or mandatory provision enacted in public interest which could not be waived, because by consent no jurisdiction could be conferred on authority unless conditions precedent were first fulfilled. Tribunal's view was clearly erroneous that matter became final when Tribunal passed earlier remand order so that this point of jurisdiction got finally settled, which could not be agitated unless assessee had come in reference to High Court at this stage. Tribunal's view was also incorrect that in restoring case to file of ITO by earlier order, only point left open was in respect of addition on merits and that legal or Jurisdictional aspect whether re-assessment proceedings were legally initiated was not kept open. Even Tribual's view was erroneous that even though this point went to root of jurisdiction and was pure question of law, merely because point was initially raised and not pressed when matter was taken up before AAC, it could be waived and it could not be reagitated. 7. It can be seen from aforesaid decision of Hon ble Gujarat High Court what was held by court is that at subsequent stage of same proceedings, assessee could adjudicate issue of jurisdiction. In present case however, when M.A.No.84/Kol/2016 A/o ITA NO.2680/Kol/2013-Recon Valves Company. A.Y.2000-01 4 issue of jurisdiction was given up by assesse and Tribunal acted on basis of submission of AR, it cannot be said that order of tribunal suffers from mistake apparent from face of record. If assessee is still aggrieved it has to seek remedies in accordance with law. It cannot be said that order of Tribunal suffers from mistake apparent from face of record. We therefore are of view that there is no merit in miscellaneous application filed by assessee. Consequently same is dismissed. 8. In result miscellaneous application of assessee is dismissed. Order pronounced in Court on 19.10.2016. Sd/- Sd/- [Waseem Ahmed ] [ N.V.Vasudevan ] Accountant Member Judicial Member Dated : 19.10.2016. [RG PS] Copy of order forwarded to: 1.Recon Valves Company, 98, M.M.Ghosh Road, Dum Dum, Kolkata-700074. 2. .D.C.I.T., Circle-50, Kolkata 3. C.I.T.(A)-XXXII, Kolkata 4. C.I.T.- XVII, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata. True Copy By order, Asst. Registrar, ITAT, Kolkata Benches M.A.No.84/Kol/2016 A/o ITA NO.2680/Kol/2013-Recon Valves Company. A.Y.2000-01 5 Recon Valves Company v. D.C.I.T.- Circle-50, Kolkata