Milap Chaxdra, J. - (1.)THIS is a reference under Section 256(2) of the Income-tax Act, 1961, by the Income-tax Appellate Tribunal, Rajasthan, Jaipur Bench, Jaipur, at the instance of the assessee for answering the following questions of law, namely ;
"1. Whether, in the proceedings initiated under Section 147(a), the validity of the notices and proceedings taken in pursuance thereof has been raised before the Income-tax Officer and the appeal of the assessee has been accepted on merits, the Tribunal was legally not right in not allowing the objection as to the jurisdiction of the Income-tax Officer to initiate the notice and as to the validity of the proceedings taken in pursuance thereof to be raised ?

(2.)WHETHER, on the facts and in the circumstances of the case, the Tribunal was right in holding that in order to go into the question of jurisdiction, the authorities below will have to find out facts in coming to the conclusion one way or the other and thereby not going into that question ?
That in the face of the finding of the Tribunal that the full material on the question of jurisdiction is not available on the record, whether the Tribunal was bound to hold that conditions precedent for issuing notice under Section 147(a) were not satisfied and the notice issued and the entire proceedings taken were bad in law ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Jodhpur property and share income was the income of Deep Chand Kothari, Hindu undivided family ?

Whether, on the facts and in the circumstances of the case, the Tribunal was legally right in holding that the income from the property and the share income of the Beawar firm were the income of the Hindu undivided family ?

Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the property and the share income of Jodhpur and Beawar were thrown into the common stock of the Hindu undivided family with the intention of treating it as the income of the Hindu undivided family ?

(3.)WHETHER, on the facts and in the circumstances of the case, the question of the ownership of the Beawar property and share in the firm and their income for the assessment years up to and including the assessment year 1969-70 have been finally settled and could not be reopened in any of the proceedings under the Act ?"
2. The reference pertains to the assessment years 1962-63 to 1969-70. The assessee was being assessed at Beawar as an individual in respect of income from property and 25 per cent, share from the registered firm, M/s. Jabarchand Gokalchand, Beawar. He was also assessed in the status of a Hindu undivided family in respect of the incomes from house property, share from firm, M/s. Kundanmal Jabarchand Umed and self business at Jodhpur. Notices under section I47(a) of the Act were issued by the Income-tax Officer, C-ward, Jodhpur, to club the incomes arising to the assessee from the said sources at Beawar treating them as the income of the Hindu undivided family at Jodhpur. The assessee filed returns, under protest, in the status of a Hindu undivided family. During the reassessment proceedings, he objected to the proceedings on the ground that the notices were void as there was no concealment of any income on his part and contended that he was being assessed at Beawar as an individual and at Jodhpur as the karta of a Hindu undivided family and he should be continued to be so assessed. The Income-tax Officer, C-Ward, Jodhpur, overruled his objection and clubbed the Beawar incomes with the Jodhpur incomes. Appeals were preferred before the Appellate Assistant Commissioner and they were allowed by his common order dated August 17, 1972, holding that the status of the assessee for Beawar incomes has to be taken as an individual and for Jodhpur incomes as a Hindu undivided family. The Department preferred appeals before the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, and they were allowed by its order dated December 29, 1979, and the orders of the Income-tax Officer were restored for all the years under consideration. The assessee riled applications under Section 256(1) of the Act requiring the Tribunal for referring the questions for the decision of this court. The applications were rejected. Thereafter, the assessee moved this court under Section 256(2) of the Act. The applications were allowed by a common order dated September 7, 1977, in Deepchand Kothari v. CIT [1980] 124 ITR 536 (Raj) and the Tribunal was directed to refer the aforesaid questions to this court. Hence this reference.

Question No. 1 : Admittedly, the assessee challenged the jurisdiction of the Income-tax Officer to initiate proceedings under Section 147(a) of the Act and the validity of the notices issued to him under Section 148 before the Income-tax Officer himself and also in the memoranda of appeals presented before the Appellate Assistant Commissioner. The learned Tribunal has discussed this point in para. No. 7 of its order dated December 29, 1973.

3. It would be best to quote it here. It runs as under :

"The appeals were heard by the Tribunal on September 26, 1973. The case could not be completed and as such it was adjourned to September 28, 1973. On September 26, 1973, the assessee did not raise any additional plea before the Tribunal and also did not inform the Tribunal that he wants to raise any additional pleas. On September 28, 1973, learned counsel for the assessee raised an additional plea and also filed an application stating the grounds. In the application, the date was wrongly shown as September 26, 1973. This application was moved on 28th September, 1973, Learned counsel for the assessee submitted that the action of the Income-tax Officer, Jodhpur, amounted to a change of opinion and as such action under Section 147 of the Act was invalid. In the alternative, it was also submitted that the matter could have been covered by Section 147(b) and not under Section 147(a), The assessee never raised these pleas before the Appellate Assistant Commissioner. Even before the Tribunal, on the first day of the hearing, no such plea was raised by the assessee. Subsequently, when the arguments of learned departmental representative were concluded, such pleas were raised before us. In our opinion, the new plea would require the authorities below to find out facts in coming to the conclusion. The plea also does not arise out of the order of the learned' Appellate Assistant Commissioner. Looking to the aforesaid facts and circumstances of the case, we do not allow the assessee to take up the additional plea."

4. It is not in dispute that the jurisdiction of the Income-tax Officer was duly challenged by the assessee before the Income-tax Officer himself and also in the memoranda of appeals filed before the Appellate Assistant Commissioner. It is not disputed that the Appellate Assistant Commissioner did not touch on this point in his common order dated August 17, 1972, and decided the appeals on merits in favour of the assessee. As such, it would be deemed that the Appellate Assistant Commissioner decided the point of jurisdiction against the assessee. Admittedly, the said point of jurisdiction was duly raised before the learned Tribunal by learned counsel for the assessee before the close of his arguments. Even an application was moved by him at that time. Rule 27, Income-tax (Appellate Tribunal) Rules, 1963, provides that the respondent, though he may not have appealed, may support the order appealed against on any of the grounds decided against him. Thus, the assessee was entitled to support the order of the Appellate Assistant Commissioner for not clubbing the said two incomes on the said ground of lack of jurisdiction. The assessee could submit his arguments and raise the said pleas only after the conclusion of the arguments of the learned representative for the Department as he was the respondent in all the appeals. It has been observed in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, as under (p. 342):

"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."

5. It has also been held in CIT v. Nelliappan [1967] 66 ITR 722 (SC) and CIT v. Delhi Sanitary Stores [1981] 127 ITR 822 (Raj) that the Tribunal may allow new grounds to be urged before it.

6. In view of these facts, circumstances and authoritative observations, we have no hesitation in holding that the Tribunal was legally not right in not allowing the objections as to the jurisdiction of the Income-tax Officer to issue the notice and as to the validity of the proceedings taken in pursuance thereof to be raised. The question is accordingly answered in the affirmative and against the Department.

7. It is well-settled law that the objection regarding lack of jurisdiction is decided first. Only after its decision holding that the court or the Tribunal has jurisdiction, other questions relating to the merits of the case arise for decision, otherwise not.

The Tribunal has power to take additional evidence. After taking the evidence which is considered necessary, the said point regarding lack of jurisdiction can well be decided by the Tribunal. As such, it is neither necessary nor expedient for this court to decide the remaining questions. The case deserves to be sent back to the learned Tribunal for first deciding the said point regarding the lack of jurisdiction.

Question No. 1 is answered in the affirmative and in favour of the assessee. The remaining questions need not be answered because of our answer to question No. 1.