Issue-Whether the question of jurisdiction of the Assessing Authority not raised before, could be raised for the first time in second appeal before the Tribunal?
Respondent in the present case submits that there is a illegal assumption of jurisdiction as the officer who made assessment had no jurisdiction at all to make the assessment. Opportunity was given by the Tribunal to the department to produce the transfer order transferring the case from office of Income Tax Officer, Azamgarh to Joint Commissioner of Income Tax (Asstt.), Varanasi but no such order was produced. In any case, no opportunity of hearing before passing of the transfer order was given.
The answer to the question posed by the respondent is pure and simple. The scheme of the Act shows that no appeal in regard to the place of assessment is contemplated under the Act. Under Section 124, a question as to the place of assessment, when it arises is determined by the Commissioner, by the Commissioners if more than one Commissioner is involved and then by the Board.
The contention that no opportunity of hearing was given before transferring raised for the first time before the Tribunal could not be substantiated by producing any evidence. The assessee was the appellant before the Tribunal and it was for him to establish that before transferring the cases, no opportunity of hearing was given and in which he failed. Mere raising the argument which requires determination of fact in absence of any supporting material is liable to be ignored.
In view of the above, we answer all the five substantial questions of law in favour of the department and against the assessee by holding that the question of jurisdiction of the Assessing Authority in view of Section 124 of the Act could not have been raised by the assessee before the Tribunal and the Tribunal is not the competent authority to adjudicate upon when it was not raised in terms of Section 124 before the Assessing Authority.