Jurisdiction can not be conferred even by consent of parties. No principle of law can not confer legality to such income tax proceedings-Allahabad HC

Jurisdiction cannot be conferred even by consent of parties. Acquiescence or any principle of law can not confer legality to such income tax proceedings-Allahabad High Court

Jurisdiction cannot be conferred even by consent

ABCAUS Case Law Citation:
ABCAUS 1143 (2017) (02) HC

Brief Facts of the Case:
In the present case, the order of assessment was passed by an income tax officer who did not have jurisdiction in the matter. When the assessee raised this objection in appeal before Commissioner of Income Tax (Appeals), he rejected this ground observing that said objection ought to have been taken before the Assessing Officer itself.

However, the Tribunal, allowed the appeal of the assessee.

Aggrieved by the order of the Tribunal, the Revenue was in appeal before the Hon’ble Allahabad High Court (Lucknow Bench)

Observations made by the High Court:
However, before the Hon’ble High Court, the Revenue could not dispute the lack of jurisdiction.

The Hon’ble Court observed that lack of jurisdiction in such case was not a mere irregularity and if that be so, if an authority has no jurisdiction in the matter, same cannot be conferred even by consent of parties. Something which is wholly without jurisdiction, that is nullity in the eyes of law, no principle of law would come to confer any kind of effectiveness to such proceedings so as to have any legal consequences. 

The Hon’ble High Court referred to number of decisions of the Hon’ble Supreme Court along with its own previous judgments on the jurisdictional issue as under:

United Commercial Bank Limited versus Their Workmen AIR 1951 SC 230 No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess
Kiran Singh versus Chaman Paswan AIR 1954 SC 340 A defect of jurisdiction … strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties
Benarsi Silk Palace Vs. Commr. of Income Tax [1964] 52 ITR 220 (All) Jurisdiction could be conferred only by statute and not by consent and acquiescence. Since jurisdiction is conferred upon Income Tax Officer to proceed under Section 34 (1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence.

Kali Das Wadhwani & Anr. Vs. Jagjiwan Das and another 1985 (2) ARC 533

It is well settled that a jurisdiction cannot be conferred on a court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity

Sardar Hasan Siddique Vs. State Transport Appellate Tribunal, AIR 1986 All. 132

A Tribunal of limited jurisdiction cannot derive jurisdiction apart from the statute. No approval or consent can confer jurisdiction upon such a tribunal. No amount of acquiescence waiver or the like can confer jurisdiction of a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity.

Karnal Improvement Trust Vs. Prakashwanti, (1995) 5 SCC 159 acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation
S. Sethuraman Vs. R. Venkataraman and Ors. AIR 2007 SC 2499 if jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner
Collector, Distt. Gwalior and another Vs. Cine Exhibitors P. Ltd. and another AIR 2012 SC 1239

The Hon’ble High Court observed that in view of the above decisions, the mere fact that objection was not taken before Assessing Officer will not make the order of assessment final as it has not been passed by competent authority.

The appeal of the Revenue was dismissed holding that no substantial question of law arisen in the appeal.

Jurisdiction cannot be conferred even by consent

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