Iapld/15/2022 Of Gaya Prasad Bajaj v. Income Tax Officer And Another

Case :- INCOME TAX APPEAL DEFECTIVE No. - 15 of 2022 Appellant :- Gaya Prasad BajajRespondent :- Income Tax Officer And Another Counsel for Appellant :- Abhinav Mehrotra,Satya Vrata Mehrotra Counsel for Respondent :- Gaurav Mahajan Hon'ble Mrs. Sunita Agarwal,J.Hon'ble Mrs. Jyotsna Sharma,J. Learned counsel for the appellant states that the defect in filingthe appeal has been removed. Having perused the report of theStamp Reporter, we direct the office to allot regular number tothe appeal. Heard Sri Abhinav Mehrotra learned counsel for the appellantand Sri Guarav Mahajan learned Advocate for the respondentdepartment. Having perused the order impugned dated 04.08.2021 passed bythe tribunal, we find that on the issue raised by the assessee,about the lack of jurisdiction of the assessing authority to passthe assessment order, for the first time before the tribunal bymoving an application under Rule 11 of the Income TaxAppellate Tribunal Rules' 1963, the tribunal had relegated thematter to the first appellate authority with the findings asfollows:- "7. I have considered the rival submissions as well as relevant record.Both the parties have argued at length on the legal issue raised by theassessee challenging jurisdiction of the Assessing Officer to complete theassessment under section 143(3). It is pertinent to note that the issueregarding the jurisdiction of the Assessing Officer was undisputedly notraised by the assessee either before the Assessing Officer before thecompletion of the assessment or even before the CIT(A). It is also a matterof record that the assessee has not raised this issue in the Form No. 36 oreven as an additional ground in writing. However, since the issue is purelylegal in nature and goes to the root of the matter, therefore, the legal issueraised by the assessee first time before the Tribunal cannot be rejected ontechnical ground. Since the assessee has raised this issue first time beforethe Tribunal and that too in course of argument without prior leave of theBench in writing therefore, having regard to the facts and circumstancesand in the interest of justice, the assessee is allowed to raise this issuebefore the CIT(A) so that a view of the first appellate authority would beavailable based on the relevant facts on record. Accordingly, withoutexpressing any view on the merits of the issue, the same is set aside to therecord of the CIT(A) for adjudication after considering various legalpoints raised by both the parties and after giving an opportunity ofhearing to the assessee. Since the legal issue raised by the assessee goes to the root of the matter therefore, the other grounds raised by theassessee on the merits of the addition are kept open which were otherwisenot argued by the ld. AR." The contention of the learned counsel for the appellant is thatsince the tribunal has not returned any definite finding on theorder passed by the first appellate authority dated 19.09.2018,the appellant has an apprehension that the said order passed bythe first appellant authority would come in his way even on afresh decision being made by the first appellate authority afterremand. The contention is that the occasion for filing thepresent appeal arose on account of this error committed by thetribunal where while relegating the matter to the first appellateauthority to deal with the issue on jurisdiction keeping all issuesopen for fresh consideration, no definite opinion was expressedby the tribunal about the validity of the order dated 19.09.2008. The contention of the learned counsel for the appellant is thatsince the tribunal has not returned any definite finding on theorder passed by the first appellate authority dated 19.09.2018,the appellant has an apprehension that the said order passed bythe first appellant authority would come in his way even on afresh decision being made by the first appellate authority afterremand. The contention is that the occasion for filing thepresent appeal arose on account of this error committed by thetribunal where while relegating the matter to the first appellateauthority to deal with the issue on jurisdiction keeping all issuesopen for fresh consideration, no definite opinion was expressedby the tribunal about the validity of the order dated 19.09.2008. Having considered the submissions made by the learnedcounsel for the appellant and perused the finding as extractedabove, this much is clear that the tribunal on the jurisdictionalissue raised by the assessee, did not enter into the merits of theorder dated 19.09.2008 and relegated the matter to the firstappellate authority for decision on appreciation of the questionof law of jurisdiction on the facts of the case itself. It wasfurther observed by the tribunal that since the issue ofjurisdiction, the legal issue raised by the assessee, goes to themerits of the matter, all other grounds raised by the assessee onmerits are kept open, though not argued. Having considered the observations made by the tribunal in theorder impugned, we only clarify that once the matter isrelegated to the first appellate authority on the jurisdictionalissue and the tribunal has not expressed any opinion on themerits of the order dated 19.09.2018 passed by the firstappellate authority, all the issues raised by the assessee beforethe first appellate authority at the first instance, including theissue of jurisdiction raised before the tribunal by way ofadditional grounds are required to be considered by the firstappellate authority afresh and an order strictly in accordancewith law shall be passed on merits dealing with all issues raisedbefore the first appellate authority after remand. With these observations and directions, the present appeal isdisposed of at the admission stage itself. Order Date :- 22.8.2022 Himanshu