M/S.skol Breweries Ltd v. The Assistant Commissioner Of

(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.34 of 2009 M/s.Skol Breweries Ltd. ..Appellant Vs. The Assistant Commissioner of Income Tax ...Respondent Mr. Pardiwala, Senior Counsel i/b. Mr. V.V. Khemka, for the Appellant. Mr. Jasbir Singh Saluja for the Respondents CORAM: F.I. R.S.MOHITE, JJ. DATED: 9th February, 2009 P.C.: P.C.: . The assessee had approached this Court on various questions as formulated in para.1 of the appeal memo. 2. After hearing the learned Counsel for some time and more so, considering Rule 27 of the Appellate Tribunal Rules, 1961 we indicated to the Counsel that even if the order pertaining to Cross Objection is rejected, yet the Tribunal on the issue of jurisdiction was bound to answer that issue. Considering that the learned Counsel for the Assessee does not press the issue of Cross Objections and confined himself to the issue as to answering the issue pertaining to the jurisdiction considering Rule 27 of the Rules mentioned above. Rule 27 of the Appellate Tribunal Rules, (-2-) 1961 reads as under:- The Respondent, though he may not have appealed, may support the order appealed against, on any of the grounds decided against him." Before the C.I.T. (A) the assessee appellant herein had raised an objection that re-opening of assessment under Section 147 of the Income Tax Rules was without jurisdiction. The learned C.I.T. (Appeals) rejected the said contention as advanced on behalf of the assessee. However, on merits held in favour of the assessee. 3. Revenue aggrieved by the order preferred an appeal before the I.T.A.T. The Appellant assessee filed Cross Objections nearly after two years. The learned Tribunal was pleased to hold that no sufficient cause has been shown for filing the cross objections out of time. The time is 30 days from receipt of the memo of Appeal from the Revenue. The Appellant herein also contended that even otherwise they are entitled to raise the issue pertaining to jurisdiction even if the cross objections not considered. The learned Tribunal refused to go into the issue having rejected the cross objections. However, the Tribunal on merits reversed the order of C.I.T. (Appeal). (-3-) 4. In our opinion, the issue pertaining to jurisdiction can be raised before any forum even if no Cross Objections have been filed. The issue pertaining to jurisdiction pertains to assumption of jurisdiction. Such objection as to jurisdiction can not only be raised in the very same proceedings or proceedings arising therefrom, but also in collateral proceedings if the order be a nullity at law. A Court without jurisdiction cannot assume jurisdiction by consent of parties or because the parties inititally did not raise the issue of jurisdiction. The stage at which the issue can be raised and the nature of the enquiry will be limited to the issue whether the lack of jurisdiction is latent or patent. 5. In the instant case, however, we find that Rules specifically provide that it is open to the Appellant in respect of a ground which had been held against him to support the order on any of the grounds decided against him. If the issue of jurisdiction is held in favour of the appellant then even though on merits the order may have been against the assessee appellant, yet the appeal preferred by the Revenue will have to be dismissed if lack of jurisdiction is established. 6. In our opinion, therefore, considering both Rule 27 and the general principles namely that no (-4-) Court or authority can assume jurisdiction if it had no jurisdiction the Tribunal was bound to consider, latent or patent. 5. In the instant case, however, we find that Rules specifically provide that it is open to the Appellant in respect of a ground which had been held against him to support the order on any of the grounds decided against him. If the issue of jurisdiction is held in favour of the appellant then even though on merits the order may have been against the assessee appellant, yet the appeal preferred by the Revenue will have to be dismissed if lack of jurisdiction is established. 6. In our opinion, therefore, considering both Rule 27 and the general principles namely that no (-4-) Court or authority can assume jurisdiction if it had no jurisdiction the Tribunal was bound to consider, hear and decide the said controversy. We may make it clear that the issue has to be decided on materials on record and not by leading new or additional material before the Tribunal unless a proper application is made, parties are heard and the new material is allowed to be brought on record. 7. Considering the above, we set aside the entire order and remand the matter back to the Tribunal for denovo consideration according to law. (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)