- (1.) Present appeal has been filed under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as ''the Act') by the department against the order dated 26th June, 2002 passed by the Income Tax Appellate Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as ''the Tribunal') in I.T.A. Nos. 21, 22, 23 & 24(Alld)/2002 for the assessment years 1993-94, 1994-95, 1995-96 and 1997-98.
(2.) The assessee-respondent did not file returns of its income voluntarily for the assessment years 1993-94 to 1995-96. The Income Tax Officer, Azamgarh issued notice under Section 142(1) dated 31st July, 1997 and notices issued under Section 148 for the assessment years 1993-94 to 1995-96. In response, the assessee-respondent filed returns for all these assessment years. The cases were transferred to the Deputy/Joint Commissioner of Income Tax (Asstt.) Special Range Varanasi who was having jurisdiction as the return of loss for the assessment year 1997-98 was more than Rs.10 Lakhs. The assessee participated in the assessment and reassessment proceedings and claimed exemption initially under Section 11 and subsequently under Section 10(22) of the Act. The claim of exemption was denied by the Assessing Authority for the reasons recorded in the assessment order and the assessment was completed by determining the positive income for all these assessment years. The matter was carried in appeal before the Commissioner of Income Tax (Appeal), Varanasi. All of them were dismissed by a common order dated 10th January, 2002. The assessee carried the matter in further appeal before the Tribunal who allowed all these appeals by the order under appeal holding that the Assessing Officer who framed the assessment/reassessment proceedings was not the competent authority and the reasons recorded for initiating the reassessment proceedings are bad. Hence, the present appeal.
(3.) Present appeal has been admitted on the following substantial questions of law as framed in the memo of appeal :- (1)"Whether on the facts and circumstances of the case, the I.Tax Appellate Tribunal is legally justified to hold that since there was no jurisdiction order u/s 124 or u/s 127 of the I.T. Act, 1961 conferring jurisdiction over the case to the Joint Commissioner of I.Tax, Varanasi, the assessment order passed by him is a nullity and without jurisdiction. (2)Whether on the facts and circumstances of the case, and having regard to the fact that the assessee never raised the issue of jurisdiction during the course of assessment proceedings nor was it taken as a ground of appeal filed before the Commissioner of Income Tax (Appeals), was the Tribunal legally justified in allowing the assessee's preliminary objection that the Joint Commissioner of I.Tax, Varanasi did not have the jurisdiction to pass the assessment order, particularly when it was raised before the Tribunal for the first time. (3)Whether the Tribunal erred both in law and on facts in holding that the assessment order is without and jurisdiction and hence a nullity in view of the statutory provisions provided in Ss. 124(2), (3) (a) and (b) and Ss. 124(4) of the I.Tax Act, 1961 whereby the assessee was not entitled to raise any question relating to the jurisdiction of the Assessing Officer and if question of jurisdiction is raised, it shall be determined by the Commissioner, Chief Commissioner, the Director General or the CBDT, as the case may be, instead of being raised as a preliminary objection for the first time before the Tribunal. (4)Whether having regard to the basic fact that due to internal administrative changes made in May, 1997 whereby the charge of C.I.T. Varanasi was created, and vide Notification No. 54 dated 30.5.1997 issued by Chief C.I.T. Lucknow, the CIT Varanasi was assigned territorial jurisdiction over Gorakhpur Range thereby bringing cases over income or less of Rs.10 lakhs or above in the jurisdiction of Jt. CIT Varanasi, was the Tribunal legally justified and correct in taking the view that an order was necessary for conferring jurisdiction u/s 124 or u/s 127 upon the Jt. C.I.T., Varanasi for passing the assessment order in the instant case and since such an order was not produced therefore the assessment order was without jurisdiction and hence a nullity in law. (5)Whether on the facts and circumstances of the case and in the light of the statutory provisions relating thereto and in view off the administrative charges made in May 1997 whereby the jurisdiction of the C.I.T., Varanasi was enlarged to cases of Gorakhpur Range thus bringing the assessee within the jurisdictional area of the Joint C.I.T., Varanasi who was the Assessing Officer in the instant case, was any opportunity of hearing to the assesse necessary and was any order conferring jurisdiction upon the Assessee Officer necessary in the eyes of Law? (6)Whether on the facts and circumstances of the case, was the Tribunal legally justified in holding that there was no nexus between reasonable belief and escapement of the assessee's income and consequently the notices u/s 148 are void ab-initio being based on imagination, presumptions and assumptions of the Assessing Officer. (7)Whether having regard to the fact that Assessing Officer had duly recorded reasons before issuing notices u/s 148 and had formed a belief that the assessee was running the educational institutions for profit and had undisclosed investments in fixed assets, could it be held by the Tribunal that the Assessing Officer had not recorded any valid reasons regarding the escapement of the assessee's income before issuing notices u/s 148 and whether the Tribunal was legally justified in its view. (8)Whether on the facts and circumstances of the case was the Tribunal legally justified in holding that since the Assessing Officer had not recorded reasons for issuing notices u/s 148 in the name of the assessee consequently the notices cannot be said to have been validly served upon the assessee. (9)Whether on the facts and circumstances of the case and having regard to the fact that the notices u/s 148 were issued and served in the name of "The Manager, All India Children Care and Welfare Society", was the Tribunal justified in law and on facts to hold that the notices were neither validly recorded nor correctly served upon the assessee and, if so, could, it not have been covered and serve by s.292B of the Income-Tax Act? (10)Whether the Tribunal's order dated 26th June 2002 having been decided only on preliminary issues without going into he merits of the case and without giving any findings on the various points raised by the Revenue relating to the Profit earning activities of the assessee and siphoning off of funds, can be said to be legally justifiable and legally sustainable order in the eyes of Law.";