TMI Blog2008 (8) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... tax and interest before the assessing authority, Range, Cuttack within a period of four weeks from today. The assessing authority, range shall issue a fresh notice for making a fresh audit assessment and shall complete all proceedings within a period of three months from the date of issuance of notice. However, it is clarified that any observation made herein shall not prejudice the case of either side. - W.P. (C) No. 11638 of 2008 - - - Dated:- 11-8-2008 - CHAUHAN B.S. DR. C.J. AND MAHAPATRA B.N. , JJ. Dr. B.S. CHAUHAN C.J. This writ petition has been filed challenging the order of assessment dated July 3, 2008 passed by the assessing authority (Sales Tax Officer, Cuttack-II Circle, Cuttack) under the provisions of the Orissa Value Added Tax Act, 2004 (hereinafter called the OVAT Act ) and Orissa Value Added Tax Rules, 2005 (hereinafter called the Rules, 2005 ) The facts and circumstances giving rise to the case are that the petitioner is a registered dealer under the provisions of the OVAT Act and has also been allotted a TIN number. It carries on business of manufacturing of aluminium utensils for sale. It submitted the return before the Sales Tax Officer, Cuttack- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vited the assessment order, it cannot be permitted to agitate this issue any further. Moreso, the authority was bound to assess and pass the assessment order as the maximum period of six months is prescribed under section 42(6) of the OVAT Act and in exceptional circumstances the period can be extended for further six months by the Commissioner only. In case the order so passed is set aside and is remanded to the competent authority for adjudication afresh, period of limitation would not apply and that is the reason for which the assessee did not take the objection to the issue of jurisdiction. In the meantime they get sufficient period to utilize the public fund. Moreso, order is appealable, but to avoid the pre-deposit condition of 20 per cent as required under section 77 of the OVAT Act, instead of filing the appeal this writ petition has been filed. Therefore, the petitioner cannot be permitted to take the benefit of its own mistake. Moreover, no prejudice has been caused to the assessee by the order of the said assessing authority. The petition is liable to be dismissed. We have considered the rival submissions made by the learned counsel for the parties and perused the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dio AIR 1981 SC 537, Sardar Hasan Siddiqui v. State Transport Appellate Tribunal AIR 1986 All 132, A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531, Union of India v. Deoki Nandan Aggarwal AIR 1992 SC 96, Karnal Improvement Trust v. Prakash Wanti (Smt) (Dead) [1995] 5 SCC 159, U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. AIR 1996 SC 1373, State of Gujarat v. Rajesh Kumar Chimanlal Barot AIR 1996 SC 2664, Kesar Singh v. Sadhu [1996] 7 SCC 711, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar AIR 1999 SC 2213 and Collector of Central Excise, Kanpur v. Flock (India) (Pvt) Ltd., Kanpur AIR 2000 SC 2484.) In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) [1990] 1 SCC 193, the Supreme Court, after placing reliance upon large number of its earlier judgments and of the English Courts, particularly in Premeir Automobiles Ltd. v. Kamlakar Shantharam Wadke AIR 1975 SC 2238, Barraclough v. Brown 1897 Authorised Controller 615, Doe d. Rochaster (P) v. Bridges 109 ER 1001, Ledgard v. Bull [1886] 11 AC 648, Barton v. Fincham [1921] 2 KB 291 and Chandrika Misir v. Bhaiyalal AIR 1973 SC 2391, held, that a decree without jurisdiction is a nullity; when a special statute gave a right and also provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it. In Bahrein Petroleum Co. Ltd. v. P.J. Pappu AIR 1966 SC 634, the apex court has taken the same view observing that a defendant may waive the objection regarding the territorial jurisdiction of the court and once he waives it, he has to be subsequently precluded from taking the said objection. Moreso, the party must satisfy, that because of the jurisdictional issue there has been failure of justice. Moreso, the issue cannot be taken after the disposal of the matter. Therefore, the party has to satisfy itself as to why the objection has not been taken at the preliminary stage of the proceedings. In Deepak Agro Foods v. State of Rajasthan [2008] 16 VST 454 (SC), a similar issue has been examined by the apex court and it has been held that assessment orders are not in the nature of judicial proceeding. Irregular assessment orders are curable but assessment orders passed without jurisdiction are null and void. The Supreme Court observed as under: All irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him; (ii) that unless there was some provision either in the Act or in the Rules framed which precluded the assessee from raising the objection as to jurisdiction, if the same was not raised before the assessing authority, the assessee could not be precluded from raising that objection at a later stage. The court observed as under: . . . Unless there is some provision either in the Act or in the Rules framed which precludes the assessee from raising any objection as to jurisdiction, if the same is not raised before the assessing authority, the assessee cannot be precluded from raising that objection at a latter stage . . . In State Bank of India v. Ram Das [2003] 12 SCC 474, the honourable Supreme Court held that where a party despite knowledge of the defect in the jurisdiction participated in the proceedings without any objection, by its conduct it disentitles itself from raising such a question in the subsequent proceedings. In case despite numerous opportunities, which are available to a party, a defect is not pointed out to the authority concerned, the party cannot be permitted to raise question of jurisdiction before the court. In Central Bank of India v. Bernard (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner, neither he considered it proper to challenge the notice dated June 16, 2007 nor he filed any objection under rule 49(3) of the Rules, 2005 before the authority. In such a fact-situation, as writ is a discretionary relief and should not be granted in favour of a person, like the petitioner who just wants to buy time and withhold the public money adopting such dilatory methods, the petitioner has disentitled itself for any equitable relief. Mr. Sahoo is not able to point out as to how the cause of the assessee has been prejudiced by such assessment order. But considering the fact that the assessment order had been passed by an officer lacking inherent jurisdiction, it cannot be sustained in the eyes of law. Therefore, the petition deserves to be allowed. In the fitness of the case, petitioner ought to have approached the appellate forum. However, in order to avoid the pre-deposit condition of 20 per cent of the assessed amount, he approached this court directly. Thus, to meet the ends of justice, it is desirable that the petitioner be asked to deposit 20 per cent of the assessed tax and interest before the assessing authority, Range, Cuttack within a period of four ..... X X X X Extracts X X X X X X X X Extracts X X X X
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