TMI Blog2018 (4) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... quential proceedings initiated and drawn up subsequent thereto must necessarily fall and stand set aside. Revision allowed. - SALES/TRADE TAX REVISION No. - 2565 of 2005 - - - Dated:- 7-10-2017 - Yashwant Varma, J. Counsel for Applicant :- Shubhan Agrawal Counsel for Opposite Party :- S.C. JUDGMENT Heard Shri Shubham Agrawal, learned counsel for the revisionist and Shri B.K. Pandey, learned standing counsel for the respondent. This revision raises an issue with regard to the validity of the assessment order dated 31 March 1997 as well as certain consequential proceedings taken subsequent thereto. The primary question of law which is raised is whether the orders of assessment including the one made on 31 March 1997 would be barred by the provisions of limitation as prescribed by Section 21 (5) of the U.P. Trade Tax 1948. Bearing in mind the nature of issues which stand raised, it would be apposite to notice the following facts. It is not disputed that on 30 December 1995, an ex parte order of assessment came to be made against the revisionist. Seeking recall of the said ex parte order, an application under Section 30 of the 1948 Act is stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand has drawn the attention of the Court to the order dated 6 July 1996 to submit that there was no automatic reopening of the assessment proceedings as would be evident from the operative directions as framed by the first appellate authority. In his submission, the assessee lost their rights to raise the issue of limitation when it preferred a first appeal which came to be disposed of on 28 December 1998. He submitted that since there can be no automatic reopening of a closed assessment nor was any reassessment ordered by the first appellate authority by its order dated 6 July 1996, the principles as enunciated by the Full Bench in M/s. Minakshi Udyog would have no application. Shri Pandey has also laid stress upon the findings arrived at by the Tribunal that the issue of limitation stood lost to be raised and did not arise from the order of the first appellate authority. Dealing with the last submission first, this Court notes that there is no dispute with regard to the fact that the issue of limitation was in fact raised in the subsequent first appeal which was preferred by the revisionist asssessee. It is also contended that the first appellate authority dismissed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted , and may be extended or restricted by similar means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular court has cognisance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics. 46. In American Jurisprudence, Vol. 32-A, Para 581, it is said that: Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of announcing the fact and dismissing the cause. Further, in Para 588, it is said that lack of jurisdiction cannot be waived, consented to, or overcome by agreement of the parties. 47. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been invoked and in that view of the matter no show-cause notice in terms of Rule 10 could have been issued. (emphasis supplied) Since the issues arising from section 21 (5) are determinative of the authority and power of the assessing authority to reassess and reopen, it is clearly jurisdictional in character and cannot be said to have been lost to the assessee to raise at the stage of the second first appeal. In any view of the matter, there could be no conferment of authority upon the assessing officer to reassess by the mere fact that the assessee did not raise this objection. As is often said, jurisdiction cannot be conferred by consent. It must be shown and established to exist of its own. In view of the above, this Court finds itself unable to accept or approve the line of reasoning adopted by the Tribunal to the effect that this issue stood lost to be raised by the assessee. This then takes the Court to the submission of Shri Pandey that the order of the first appellate authority dated 6 July 1996 did not amount to a final disposal of an application referable to Section 30 and it was only an order liable to be viewed as remitting the matter to the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e- opening the case. We cannot accept the argument that when the Appellate Authority has allowed the assessors appeal against the order under Section 30 for want of notice or for sufficient cause for non-appearance, and ordered that the assessment be re-opened, the actual re-opening will not be automatic and immediate but will depend on the sweet will of the Assessing Officer who may pass an order for re-opening the case as and when he likes. Such a view would frustrate the period of limitation under Section 21(5). The legal effect of an order allowing the appeal against an order under Section 30 on the ground that the dealer did not receive notice or was prevented by sufficient cause from appearing is that the ex parts assessment stands cancelled and the case stands reopened immediately and automatically. In the present case, the order dated 13,12.1993 States that there was no service of notice on the dealer. Hence there was immediate and automatic re-opening of the case on 13.12.1993. xxx xxx xxx 15. In the present case, the appellate order of the Assistant Commissioner (Judicial) dated 13.12.1993 was served on the Assessing Authority on 11.1.1994. Hence whether we take 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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