The Judgment of the Court was delivered by
D.K Seth, J.:—
The points raised:
2. In exercise of the power conferred under section 120(2) of the Income-tax Act, 1961 (“the IT Act”), the jurisdiction in relation to Chapter XVII-B except section 195 and those relating to section 221 was conferred on newly created wards in a newly created income-tax range. Based on this creation of jurisdiction, two points in this case have since been raised by Dr. Pal, appearing on behalf of the assessee, since opposed by Mr. Agarwal for the Department. The first point that has been raised is with regard to the charging of interest under section 201(1A) on the amount defaulted. Dr. Pal contended that interest payable in terms of sections 234A, 234B and 234C where the statute used the expression “liable to pay interest” alike section 201(1A), was held to be discretionary by a circular issued by the Board on May 23, 1996, since published in [1997] 225 ITR (St.) 101. At the same time, an order passed under section 201 is appealable under section 245. Therefore, this liability to pay interest contemplated under section 201(1A) was never meant to be mandatory by the Legislature.
3. The second point that has been raised is that the officer who had passed the order had no jurisdiction and as such the order passed is a nullity and cannot be enforced so far as the assessment years 1983–84, 1984–85, 1986–87 and 1987–88 are concerned. So far as the assessment year 1985–86 is concerned, the same was passed without giving opportunity and, therefore, cannot be sustained on account of infraction of the principles of audi alteram partem when such order visits the assessee with penal/civil consequences.
The points opposed:
4. Mr. Agarwal, on the other hand, contended that the provisions relating to sections 234A, 234B and 234C fixing liability to pay interest is dependent on and has to be interpreted in the context in which such interest is chargeable. According to him, these are simple defaults on the part of the assessee and the interest that is chargeable in effect is a coercive measure to compel the assessee to adhere to the time schedule. The question of payment of interest would arise in all these cases only when the assessment is complete and it is found that any amount of tax becomes payable or the tax payable is in excess of the amount which has been paid by way of advance tax, if paid. Therefore, the question is dependent on the determination of the liability. This interest would not be payable if no amount is found to be due on account of tax payable. Thus, in such circumstances, in one contingency of the situation, the interest would become payable and in another contingencies it would not. It was rightly laid down by the Board to be discretionary. But this cannot be equated with a situation when the interest is compensatory in nature and payable on an amount which is not the income of the assessee but of someone else from which the assessee was liable to deduct the tax payable by such assessee and the default to deduct or to pay would start from the date it becomes deductible since this amount was payable to the treasury, simultaneously with the payment of the amounts to the third party assessee concerned. Therefore, according to him, the liability occurring in section 201(1A) as has been engrafted in the enactment cannot be said to be discretionary.
5. He then contended that the jurisdiction though conferred on the specially created ward with effect from May 8, 1989, but the same was not retrospective in operation. According to him, there cannot be any retrospective operation of a legislation conferring jurisdiction. By reason of such legislation neither the jurisdiction, which was already there could be taken away with retrospective effect nor the jurisdiction could be created with retrospective effect. Therefore, the default having been committed before May 8, 1989, the jurisdiction remains with the officer before whom the return was submitted and it could not be taken away by the said circular or by creation of separate ward. According to him, the pending cases could not be transferred except by express provisions in the statute.
6. Mr. Agarwal has also pointed out that this question of jurisdiction was taken for the first time before the learned Tribunal and was never taken either before the Assessing Officer or the Commissioner (Appeals). Therefore, this point can no more be agitated.
7. Mr. Agarwal had referred to several decisions to support his contention with regard to the mandatory nature of the liability to pay interest under section 201(1A) as well as in relation to the question of jurisdiction. We shall be referring to those decisions at the appropriate stage.
Points replied:
8. In reply Dr. Pal referred to the decision in National Thermal Power Co. Ltd. v. Commissioner Of Income Tax, [1998] 229 ITR 383 (SC) in order to contend that a point of law can be agitated even at the appellate stage though not raised earlier if it involves a question of law arising from the facts found by the authorities. He also sought to distinguish the decisions cited by Mr. Agarwal.
Points of law: If can be raised in appeal for the first time:
9. After having heard learned counsel for the parties, admittedly, it appears that this point of jurisdiction was taken before the learned Tribunal for the first time. At the same time, it is also apparent from the records that for the purpose of deciding the question, no amount of facts need be gone into. It can be decided on the basis of the facts already found by the authority concerned and the question is a pure question of law relating to jurisdiction, which goes to the root of the jurisdiction exercised. In case an order is passed without jurisdiction, the same is a nullity. Jurisdiction can never be conferred by agreement or by default or acquiescence, as was held by the apex court in National Thermal Power Co. Ltd., [1998] 229 ITR 383. Therefore, a question of law arising out of facts found by the authorities and which goes to the root of the jurisdiction can be raised for the first time before the learned Tribunal.
The first point: Section 20KIA): Interest: Whether mandatory:
10. So far as the question of interest is concerned, it has rightly been contended by Mr. Agarwal that there is a distinction between the liability for payment of interest arising under the provisions of sections 234A, 234B and 234C and those arising out of section 201 (1A). So far as those provided in sections 234A, 234B and 234C are concerned, those are related to default in submitting the return within time and in payment of advance tax or for deferment of advance tax. These are in the nature of coercive measures to compel the assessee to adhere to the time schedule. Inasmuch as the interest would not be payable if no tax is found to be due after the assessment. Similarly, if after failure to submit the return on assessment the tax payable is found to be less than the advance tax paid or no tax was at all due then the interest could not be saddled on the assessee. Therefore, it cannot be held to be mandatory in a case where no tax is found due after the assessment. Thus, the circular dated May 23, 1996 ([1997] 225 ITR (St.) 101) issued by the Board will not help us to hold that the interest provided under section 201(1A) would be equally non-mandatory.
11. Having regard to the expression used in section 201(1A), it appears that in the case of default either to deduct tax or to deposit the tax after deduction, the principal officer shall be liable to pay simple interest at 12% per annum on the amount of such tax from the date on which such tax is deductible to the date on which such tax is actually paid. Section 201 provides for consequences of failure to deduct or pay tax deducted at source. Sub-section (1) makes the person responsible to deduct a deemed assessee in default on account of failure to deduct in respect of cases referred to in section 194. By reason of sub-section (1), the assessee in default is exposed to penalty unless good and sufficient reasons are shown to the satisfaction of the Assessing Officer to defend such failure and such penalty imposed under section 221, thus, appears to be discretionary dependent upon good and sufficient reasons to the satisfaction of the Assessing Officer. Whereas sub-section (1A) provides for interest without prejudice to sub-section (1); it makes an assessee in default liable to pay simple interest at the rate prescribed on the amount of tax from the date deductible to the date of actual payment of the tax. The scheme in which sub-section (1A) has been framed does not leave any scope or ambiguity to hold such liability contingent upon good and sufficient reasons or otherwise. On the other hand, it makes it clear that an assessee in default is liable to pay simple interest for the period stipulated in sub-section (1A) in no uncertain terms. This is further supported by making such interest chargeable upon all the assets of the assessee in default under sub-section (2) in case after deduction the tax is not paid together with the interest.
12. A similar question arose before this court in Kanoi Industries P. Ltd. v. Asst. CIT, [2003] 261 ITR 488 where one of us (D.K Seth, J.) was a party. In the said decision, it was held that the provisions of sub-section (1A) of section 201 of the Income-tax Act, 1961, are mandatory and automatic. Unlike sub-section (1), no pre-condition of reasonable cause for non-payment of tax in time has been included in sub-section (1A). Unlike the restriction provided for in sub-section (1), sub-section (1A) does not contain any restriction for charging interest thereunder. In order to interpret sub-section (1A) aid of section 221 is not material. It has to be interpreted independent of it. It postulates liability to pay interest at the rate provided on the amount deductible as tax from the date on which such tax was deductible until it is actually paid, if the “assessee in default” does not deduct the tax. Similarly, the “assessee in default” is liable to pay interest in the same manner, if the “assessee in default” after deducting, fails to pay the tax. Non-payment of tax, on account of failure to deduct or on account of any other reason after deduction, makes the “assessee in default” liable to pay interest on the amount deductible made recoverable as a charge on the assets of the “assessee in default” under sub-section (2). The charging of interest has been made continuous till it is actually paid. A legal fiction is created under section 201 by a deeming clause that the person liable to deduct shall be the assessee in default. The expression “actually paid” is the outer limit for the purpose of calculation of interest. If it is not paid within the period prescribed under section 200, then the liability accrues and continues until the amount is actually paid voluntarily or non-voluntarily pursuant to or through recovery proceedings. The actual payment of tax is relevant only for the purpose of determining the period up to which a defaulting person would be liable to pay interest under that section.
13. This decision, however, was sought to be distinguished by Dr. Pal. The decision was concerned with the question where the assessee contended that it was not liable to pay tax since it did not deduct the tax at all and it had deposited the tax immediately after the tax was deducted. In that context, this decision having been rendered, this is distinguishable and would not apply in the present situation. There seems to be no distinction as was sought to be advanced. Inasmuch as in case the liability to pay tax accrues if the deduction is not made, in that event, interest cannot be avoided in a case where tax was not deducted on the date the tax was deductible till the date it was deducted and deposited.
14. Dr. Pal relied upon the decision in State v. Amru Tulsi Ram, AIR 1957 Punj 55 in order to interpret the meaning of the expression “liable” occurring in sub-section (1A) of section 201. According to Dr. Pal the word “liable” means a future possibility or probability of the happening of an event, which may or may not actually occur. But this decision was dealing with section 381 of the Indian Penal Code, 1860 in order to interpret “shall also be liable to fine” interpreting the same as discretionary. This decision will not help us in the context of the present case as discussed hereinbefore having regard to the scheme of sub-section (1A), which is without prejudice and is dealing with somebody else's money, which is supposed to deduct and the charging of interest in the present case is in the nature of compensation. Inasmuch as the moment the liability to deduct accrues, it becomes a debt and the assessee in default was an agent or bailee on behalf of the Department. The deprivation of the receipt of the tax by the Department within the stipulated time entails payments of interest by way of compensation, which is payable without prejudice to the provisions of sub-section (1), cannot be interpreted as discretionary.
15. In Grindlays Bank Ltd. v. Commissioner Of Income-Tax, [1993] 200 ITR 441 (Cal) dealing with section 201(1A), this High Court in a Division Bench had held that the assessee in default itself was liable to pay income-tax in respect of interest to be paid to its customers and the assessee was liable to deduct income-tax on such interest under section 195 and as such the bank is liable to pay interest under sub-section (1A) even when the credit for interest given to the non-resident had become time-barred.
16. In Vikrant Tyres Ltd. v. First Income Tax Officer, Mysore, [1993] 202 ITR 454, the Karnataka High Court, dealing with section 220(2), had held that interest is payable as compensation towards deprivation of the benefit of money which lawfully belongs to a person or authority. The income-tax due to the State is certainly an amount which lawfully belongs to the State; if the payment is postponed for any reason, there can be no doubt that the State is deprived of the benefit of the amounts which lawfully belong to the State. The liability to pay income-tax is a debt due on the last date of the accounting period. Therefore, jurisprudentially, the Revenue is a creditor and the taxpayer is a debtor and there is nothing strange if the law contemplates that the debtor should compensate the creditor by paying interest on the amount due. The fact that the law postponed the discharge of tax liability to the date of issuance of a demand notice and the period of 30 days from the date of the demand, would not alter the nature of the said liability. However, Dr. Pal submitted that this decision in Vikrant Tyres Ltd., [1993] 202 ITR 454 (Karn) was reversed by the apex court in Vikrant Tyres Ltd. v. First Income Tax Officer, Mysore, [2001] 247 ITR 821 But this decision was reversed altogether on a different context, namely, on the question of demand notice on the facts that the amount was paid as demanded within the time stipulated in the notice, therefore, in such a situation, on a literal meaning of section 220(2), the Department had no right to demand interest for the period commencing from the date of refund of the tax upon the appellate order till the taxes were finally paid after disposal of the reference. This decision was rendered in the context of default in relation to section 220, which contemplated payment of tax within a particular time on the service of the demand notice where the liability accrues on demand and not otherwise. Therefore, this reversal of the decision will not be an answer to the question with which we are now concerned, though, however, we may apply the principle laid down in the Karnataka case to section 201 in the context as we have already held, in which it operates.
17. In Pentagon Engineering Pvt. Ltd. v. Commissioner Of Income-Tax., [1995] 212 ITR 92 the Bombay High Court had held that the word “shall” in section 201(1A) makes the liability to pay interest mandatory since there was no pre-condition of considering of any “reasonable cause” for non-payment of tax in time contemplated under section 192. Under section 201(1A) the Income-tax Officer is not required to take into consideration the “reasonable cause” for non-payment of taxes deducted or non-deduction and non-payment under section 192.
18. In Commissioner Of Income-Tax v. Rathi Gum Industries., [1995] 213 ITR 98, the Rajasthan High Court had held that section 201 of the Income-tax Act, 1961, provides not only for collection of tax which has not been deducted but for levy and charge of interest also. Sub-section (1A) of the said section provides for liability to pay simple interest at the rate of 12 per cent, per annum on the amount of tax from the date on which the tax was deductible till the date the tax was actually paid. The provisions for payment of interest are mandatory and automatic and interest has to be paid from the date on which the tax was deductible till the date on which the tax is actually paid. If the tax has already been paid by the recipient on such income the Income-tax Department may not be justified to recover the said amount of tax, but so far as the liability of interest is concerned, that cannot be considered to be non-existent on account of deposit of tax by the recipient at a subsequent or later stage.
19. The Gauhati High Court in Commissioner Of Income-Tax v. Assam Small Industries Development Corporation Ltd., [1996] 219 ITR 324 held that interest is levied by way of compensation and not by way of penalty. Penalty can only be imposed when the delay in payment of tax deducted at source was without good and sufficient reason. Section 201(1A) does not impose any restriction unlike penalty. Therefore, the Tribunal was not justified in cancelling the interest levied under section 201(1A) of the Act.
20. Therefore, we are of the view that the interest payable under section 201(1A) is mandatory and can neither be waived nor the rate could be reduced.
The second point: The jurisdiction: The order: Whether a nullity:
21. So far as the second question is concerned, the same does not seem to pose any difficulty. As pointed out by Dr. Pal, it is an admitted proposition that no jurisdiction can be conferred by default or by agreement and a decision without jurisdiction is a nullity. This defect of jurisdiction can be pecuniary or territorial and is incurable as was held in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 (para. 6). The court passing a decree without jurisdiction is a defect, which cannot be cured and the decree passed is a nullity. It was so held in Balvant N. Viswamitra v. Yadav Sadashiv Mule, (2004) 8 SCC 706 and in CIT v. Pearl Mech. Engg. and Foundry Works (P.) Ltd., [2004] 267 ITR 1 (SC).
22. In order to appreciate the situation in the present case, we may quote the notification in annexure E dated April 10, 1989 at pages 117-118:
“Notification No. S.O 1436, dated April 10, 1989
In exercise of the powers conferred under sub-sections (1) and (2) of section 120 of the Income-tax Act, 1961, and all other powers enabling me in this behalf, I, the Chief Commissioner of Income-tax (Administration), Calcutta, hereby create a new Range viz., Range 21, under the jurisdiction and administrative control of the Commissioner of Income-tax, West Bengal VII, Calcutta. I also create six new wards under the administrative control and jurisdiction of Range 21, as detailed in column (2) of the Schedule annexed hereto. A Deputy Commissioner of Income-tax will be posted at Range 21 and he will be known as the Deputy Commissioner of Income-tax, Range 21, Calcutta. An Income-tax Officer, posted at a ward under Range 21 will be known as Income-tax Officer, (Tax deducted at source), the jurisdiction assigned to each ward is mentioned in column (3).
2. The Notification will come into effect from May 8, 1989, and is issued with the concurrence of the Chief Commissioner of Income-tax (Technical), Calcutta.
Schedule
New Range under Commissioner of Income-tax, West Bengal-W, Calcutta
New wards created under Range 21
Jurisdiction
(1)
(2)
(3)
Deputy Commissioner, Range 21, Calcutta.
Income-tax Officer (Tax deducted at source), Ward 21(1)
All matters relating to all the sections in Chapter XVII-B except section 195 and also relating to section 221 of the Income-tax Act, 1961, for the assessment deemed to be in default in respect of the tax under sub-section (1) of section 201 of the said Act, in respect of all the assessees who are or would come under the jurisdiction of Commissioners of Income-tax, West Bengal I (excepting mofussil districts under his jurisdiction) and West Bengal VII, Calcutta.”
23. It appears that the subject jurisdiction was created under section 120. Section 120, sub-section (1), prescribes that the Board may confer such jurisdiction to such officer as it may deem fit. It may also delegate the power under section 120(1) to some other officers in terms of sub-section (2) thereof by reason whereof the officer so authorised can confer jurisdiction which has since been done in the present case. Once a particular jurisdiction is created, the same must be prospective and cannot be retrospective and it has to be interpreted having regard to the manner in which it has been sought to be created. From the said creation, it appears that all matters relating to all sections in Chapter XVII-B, except sections 195 and 221, in respect of all the assessees who were or would come under the jurisdiction of a particular officer at the time of creation or thereafter was vested to the jurisdiction of the officer of the ward newly created. The expressions “who are” or “would come” include all assessees whose cases are pending or who would have come or used to come would also come under the new jurisdiction apart from those who are within such jurisdiction. The expression is clear enough to mean that this jurisdiction was prospective but all matters would be prospectively dealt with from the stage as it stood on the particular date, namely, May 8, 1989.
24. The creation of new range and ward does not appear to be retrospective. It also does not provide that the matters pending would be transmitted to the newly created range or pending proceedings would stand transferred with the creation of the new jurisdiction. Unless there are express provisions in the statute, there is no scope for effecting transfer of pending proceedings to the newly created jurisdiction.
25. However, Mr. Agarwal sought to rely upon the decision in Sait Bansilal and Rangisetti Veeranna v. CIT, [1972] 83 ITR 750 (AP) to contend that unless the statute contains words, whether expressly or by necessary implication, ousting the jurisdiction of the Income-tax Officer once vested in him, the jurisdiction cannot be taken away. Nothing but express words in the section can take away the jurisdiction of an officer. That a presumption exists in law in favour of the continuance of jurisdiction or power once vested in an officer until ousted by express words. The ratio decided in this decision is not in dispute. By reason of creation of new range, the jurisdiction is conferred on the newly created wards, which implies that this jurisdiction cannot be exercised by the officer in whom such jurisdiction remains vested. It ceases from the date when the new range came into effect, namely, May 8, 1989, but it cannot have retrospective effect of taking away the jurisdiction vested in the Income-tax Officer pursuant to which a proceeding was already initiated and pending in the absence of any provision for transmission or transfer of such proceeding to the newly created range. In the present case, however, this is no more germane, since all the proceedings, except the proceedings in respect of the assessment year 1985–86, were initiated after May 8, 1989. Therefore, this decision does not help Mr. Agarwal in his submission.
26. He further relied on the decision in CIT v. Eastern Development Corporation, [1982] 135 ITR 516 (Cal). In this case, it was held that the amendment would not take away the jurisdiction in respect of proceedings pending before the officer and since it did not provide for transfer of such proceedings to the officer on whom the jurisdiction was created. On the same principle, this decision also does not help Mr. Agarwal to support his contention. He then relied on Commissioner Of Income Tax, Orissa v. Dhadi Sahu, [1993] 199 ITR 610 (SC). In this case, it was held that by reason of amendment, the jurisdiction of the officer before whom the proceeding was pending did not cease to have jurisdiction since the said officer was within his jurisdiction when the proceeding was initiated. Therefore, this decision also does not help us in the context with which we are dealing. Mr. Agarwal then relied upon Lt. Col. Paramjit Singh v. CIT, [1996] 220 ITR 446 (P & H). This is also a case where the proceeding was initiated by the officer when he had jurisdiction and he would continue to have the jurisdiction in the absence of any provision for transfer since there was no order of transfer, therefore, the officer before whom the proceeding was initiated would continue to exercise jurisdiction. This decision also on the same analogy does not help Mr. Agarwal.
The principle applied: Assessment years 1983–84, 1984–85, 1986–87 and 1987–88:
27. In this case, so far as the assessments relating to the financial years 1982–83, 1983–84, 1985–86 and 1986–87 corresponding to the assessment years 1983–84, 1984–85, 1986–87 and 1987–88 were all initiated as against the assessee, admittedly, after May 8, 1989. Therefore, the Assessing Officer having territorial jurisdiction in respect of the regular assessment of the assessee could not assume jurisdiction after May 8, 1989, in respect of the matters covered under Chapter XVII-B. Thus, the orders in relation to those assessment years involved in the appeal except the assessment year 1985–86 corresponding to financial year 1984–85 cannot be sustained being without jurisdiction and a nullity.
The assessment year 1985–86:
28. So far as the assessment in respect of the financial year 1984–85 corresponding to the assessment year 1985–86 is concerned, it appears that this decision was taken on November 26, 1987 viz.: before May 8, 1989. Therefore, this was within jurisdiction.
Whether hearing to be given when interest is mandatory:
29. But an additional ground has been taken in this appeal that this decision dated November 26, 1987, in respect of the assessment year 1985–86 was rendered without giving any opportunity. Dr. Pal submits that the imposition of interest is a penalty or imposition of such interest would visit the assessee with a liability as a penal or at least with civil consequence. Therefore, the principle of audi alteram partem is to be followed and which is implicit in the provisions. Even if it does not provide in the statute itself, the same has to be read into it. Dr. Pal also wanted to make a distinction between the phrases/expressions “liable to pay” and “shall be payable”. Relying on the decision in, State v. Amru Tulsi Ram, AIR 1957 Punj 55 (para. 7), Dr. Pal sought to support his contention. We need no more enter into all these niceties. Since we have held that the interest is mandatory and it is to be imposed on default though Mr. Agarwal has pointed out when it is mandatory on default and, therefore, there is no scope for giving hearing, yet on the principles as enunciated in various decisions cited by Dr. Pal, viz., A.K Kraipak v. Union of India, (1969) 2 SCC 262 : AIR 1970 SC 150, repeated in C. B. Gautam v. Union of India, [1993] 199 ITR 530 (SC) and Assistant Collector of Customs and Superintendent, Preventive Service Customs v. Charan Das Malhotra, (1971) 1 SCC 697 : AIR 1972 SC 689 that it is the settled proposition of law that even in respect of administrative orders, if visits a person with penal consequences, then hearing is to be given even though the statute may not provide. Natural justice is to be read into the provision. An interpretation that saves the constitutionality is to be preferred to that which exposes it to unconstitutionality.
30. Having regard to the above principle, we are of the view that failure to give opportunity while passing the order in respect of the assessment year 1985–86 has affected the right of the assessee.
Conclusion:
31. By reason of creation of new Income-tax Range 21 Calcutta at Kolkata in exercise of the power under section 120(2) by the appropriate authority along with the respective seven wards created thereunder allotting the respective jurisdictions applicable to the respective assessees who were or would have been or would come within such jurisdiction and the present assessee being one of them come within one of the wards under Income-tax Range 21, Calcutta, with effect from May 8, 1989, no proceeding under section 201(1A) could be initiated against the assessee after May 8, 1989. It was not a case of a proceeding pending before the erstwhile authorities, but a proceeding initiated after the creation of the new range and ward. The jurisdiction is not dependent on the date of accrual of the cause of action but on the date when it is initiated. It is the existence of the jurisdiction on the date of initiation of the proceeding, which is material. As such the proceedings against the present assessee in relation to the assessment years 1983–84, 1984–85, 1986–87 and 1987–88 having been initiated against the assessee, admittedly, after May 8, 1989, by the Assessing Officer having territorial jurisdiction in respect of the regular assessment of the assessee were without jurisdiction. Therefore, the orders passed by such Assessing Officer are without jurisdiction and a nullity and are liable to be set aside.
32. The proceeding in relation to the assessment year 1985–86 having been initiated and concluded before May 8, 1989, by the Assessing Officer having territorial jurisdiction in respect of regular assessment of the assessee was within his jurisdiction and as such was maintainable. But, however, this order having been passed admittedly without giving an opportunity cannot be sustained and as such should be determined afresh after giving opportunity to the assessee by the officer presently having jurisdiction in relation to Chapter XVII-B.
Order:
33. Therefore, in respect of the assessment year 1985–86, we set aside the order and direct the appropriate authority currently having jurisdiction to decide the matter after giving opportunity of hearing to the assessee in accordance with law.
34. Let the records of the proceedings be transmitted by the Assessing Officer before whom the records are now lying within a period of six weeks from the date of communication of this order to the authority having jurisdiction currently. Such authority having jurisdiction presently shall then issue such notice upon the assessee within six weeks from the receipt of the records and dispose of the same after giving opportunity within a period of six weeks thereafter. Let it be noted that we have not entered into the merits of this case and the authority shall be free to decide the same in accordance with law.
35. The proceedings and the orders in relation to the assessment years 1983–84, 1984–85, 1986–87 and 1987–88 being without jurisdiction and nullity are hereby set aside.
36. Question No. 1 in relation to the assessment years 1983–84 to 1987–88 is answered against the assessee and in favour of the Revenue. So far as question No. 2 common to assessment years 1983–84 to 1987–88, and question No. 3 common to the assessment years 1983–84, 1984–85, 1986–87 and 1987–88 and question No. 4 for the assessment year 1985–86 are all answered in favour of the assessee and against the Revenue.
37. The appeal is, thus, allowed. There will, however, be no order as to costs.
38. Xerox certified copy of this judgment be made available to the parties, if applied for, on usual terms.
Soumitra Pal, J.:— I agree.