COMMISSIONER OF WEALTH TAX Vs. NARIELWALLA N A

JUDGEMENT

(1.) THE assessee in this case is the executor to the estate of late Shri A. A. Narielwalla. Though the exact date of death of late Shri A. A. Narielwalla is not known, it is not in dispute that he died sometime before 1950. We are concerned in this reference with the asst. year 1961 62 for the purpose of assessment to wealth tax. The WTO assessed the executor to wealth tax in respect of the estate of the deceased. The liability to assessment was upheld by the AAC. The details of the assessment are not relevant in view of the question referred to us. When the executor appealed against the order of the AAC, at the hearing the assessee sought permission to raise a new ground challenging the very liability to assessment. The ground was as follows : "The learned WTO has erred in assessing the executors in respect of the assets left by the deceased."

(2.) THE assessee made no secret of the fact that this ground was raised on the authority of the decision of this Court in Jamnadas vs. CWT (1965) 56 ITR 648 (Bom) : TC67R.303. As is well known, in that decision, this Court had taken the view that there was no provision in the WT Act to assess the estate of the deceased to wealth tax and that it was only later on that S. 19A of the WT Act was enacted w.e.f. 1st April, 1965. It appears that the Department resisted the attempt of the assessee to raise this new ground of challenge to the assessment proceedings though it is obvious that in the decision in Jamnadas's case (supra), the challenge went to the root of the jurisdiction of the WTO. The Tribunal found that the contention raised on behalf of the assessee did not involve any investigation into the facts and it referred to the decision of this Court in Jamnadas's case (supra) where, according to the Tribunal, it was held that there was no provision in the WT Act for charging and assessing wealth tax in respect of the net wealth of a deceased individual beyond the financial year in which such person dies. We are really not concerned with the ratio of that case as set out by the Tribunal. The Tribunal took the view that since the ground raised did not require any investigation into facts, the assessee should be allowed to raise the ground. Having allowed the assessee to raise the ground with regard to the liability of the executors to wealth tax in the relevant assessment year, the Tribunal set aside the order of the AAC and remanded the matter to him for examination of the question as to whether any assessment can be made against the executor and whether he could be made liable to the charge of wealth tax. The question which has been referred to us now at the instance of the Revenue is as follows :

(3.) THE jurisdiction of the Tribunal to decide the appeal brought before it by the assessee would obviously take in the legality of the proceedings which have terminated in the assessment of the assessee. It is well known that consent does not give jurisdiction to any authority and if there is inherent want of jurisdiction in an authority, the failure of the party against whom this jurisdiction has been exercised to challenge the jurisdiction does not confer jurisdiction on the said authority. The contention which is raised before the Tribunal on behalf of the assessee was a pure question of law going to the root of the jurisdiction of the WTO and the question was whether the executor can be assessed to wealth tax in respect of the estate of the deceased in his hands in the asst. yr. 1961 62 before S. 19A was enacted. The contention was based on a decision of this Court. The Tribunal, in our view, had properly exercised its discretion in the interest of justice when it permitted the assessee to raise the point of jurisdiction before it. The question raised essentially relates to the propriety of the exercise of discretion by the Tribunal and the order of the Tribunal, out of which the reference has been made, does not seem to us to be the result of any erroneous or arbitrary exercise of jurisdiction.