An issue of jurisdiction can be raised at any time even in appeal or execution

Brief- High Court of Bombay at Goa has held in the case of In the case of M/s Mavany Brothers vs. CIT that that it is settled position that conferment of jurisdiction is a legislative function and cannot be conferred by consent of petitioner. An issue of jurisdiction can be raised at any time even in appeal or execution.

Brief fact of the case

The assessee filed its original return of income along with its balance sheet and profit & loss account on 22/09/1997 which was processed u/s 143(1)(a) of the Act. On 13/11/2000, a notice u/s 148 of the Act was issued seeking to re-open the assessment. In response, appellant filed a fresh return of income on 17/11/2000 and indicated that the other documents viz balance sheet and profit & loss account had already been filed with the original return of income and consequently the same again was not being filed. However, the appellant was called upon to furnish the same. The appellant by a further letter supplied copies of balance sheet and profit & loss account to the A.O. while reiterating again that the original return of income did contain the documents namely balance sheet and profit & loss account sought by Revenue and there was no difference between the original return of income filed in 1997 and the present return filed on 17/11/2000. The reason sought by the appellant in support of notice dated 13/11/2000 was also communicated by the A.O. which was mainly based on correspondence with various parties and partnership deed dated 08/08/1995 and the confidential report dt. 05/10/1999 received from DDIT(Inv), Panaji. The appellant did not object to the reasons recorded for reopening the assessment and attended the hearing before the A.O. Being aggrieved with the additions made by the A.O. based on the reasons recorded, appellant filed an appeal to the CIT(A). At that stage the appellant for the first time raised an objection to the reopening notice dated 13/11/2000 under Section 148 of the Act that it was without jurisdiction on the ground of non-furnishing of confidential report of the DDIT to the appellant and that the return of income filed in 1997 was not available with the Revenue. Consequently, there could be no occasion for the Assessing Officer to have any reason to believe that income chargeable to tax had escaped assessment. In support of this the appellant placed reliance upon an inspection of the records of the Revenue with regard to the appellant on 08/09/2004. Besides, the appellant also raised various contentions with regard to the issue of no capital gains being attracted in the facts of the present case. The CIT(A) by its order dated 30/11/2004 dismissed the appeal holding that the non availability of the original return in the record of the Assessing Officer on 08/09/2004 does not mean that the original return was not available on 13/11/2000 i.e. the date when the notice under Section 148 of the Act was issued to the appellant and also confirmed the order of A.O. w.r.t to transaction being transfer within meaning of section 2(47) of the Act. On further appeal, the Tribunal by the impugned order upheld the order of the CIT(A) both on issue of reopening of assessment as well as on the issue of capital gains. Being aggrieved, the appellant filed appeal before the High Court and appeal was admitted on following substantial question of law:-

(1) Whether the Tribunal was right in affirming the determination of the capital gains at Rs.72,28,175-00 (or Rs.72,46,825-00) in place of the loss shown in the return of income filed under Section 148?

(2) Whether having regard to the family arrangement entered into in order to put an end to civil litigation commenced against the appellant by late Tajdin and later continued by his legal heirs, no capital gains at all is liable to be assessed?

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