TMI Blog2010 (10) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... r of limitation is not applicable and reliance is placed on the decisions of the Hon ble Supreme Court in the case of State of Orissa and Others v. Bhundaban Sharma and Another - 1995 Supp (3) SCC 249, Balvant N. Viswamitra and Others v. Yadav Sadashiv Mule (dead) through LRS and Others (2004) 8 SCC 706 and in the case of Subhash Kumar Lata v. R.C. Chhiba and Another - (1988) 4 SCC 709. 5. The contention of the appellant is that in all the above decisions, the Hon ble Supreme Court held that where the order is void ab initio which goes to the root of the matter, validity of such order can be challenged at any time and at any stage. The applicant also submitted that due to amalgamation of the company, the appellant could not file the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See: Kiran Singh Ors. v. Chaman Paswan Ors.). However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, capable of being cured in a duly constituted legal proceedings. 16. Proceedings for assessment under a fiscal statute are not in the nature of judicial proceedings, like proceedings in a suit inasmuch as the assessing officer does not adjudicate on a lis between an assessee and the State and, therefore, the law on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the impugned order passed by the Commissioner is a void order. Further we find the Hon ble Supreme Court in the case of Gurdev Singh (supra) held that the void order is to be challenged within a period of limitation. The Hon ble Supreme Court held as under : It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. 10. In the present case, as we find that the impugned order is not passed without jurisdiction. Therefore, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
