TMI Blog2021 (12) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed, the petitioner had a remedy of appeal against the orders dated 16.08.2016. Therefore, it also cannot be further disputed, if those appeals had been filed, the appellate authority would have been within its jurisdiction to set aside the orders dated 16.08.2016 on a reasoning similar to that adopted by this Court, in its order dated 21.02.2017. The consequence of such a finding would naturally be - the matter would have been remitted to the assessing authority to pass a fresh order. Merely because the petitioner chose to approach this Court under Article 226 of the Constitution of India against the order dated 16.08.2016, it can never be said, the petitioner was entitled to any better or other relief or rights - In the present case, undisputedly, the prior notices leading to the orders dated 16.08.2016 were issued well within time. Those were not quashed by this Court in Writ Tax No. 97 of 2017. Such notices were therefore valid. Thus, the jurisdiction had been exercised within time prescribed by law. It is not found that the proceedings instituted by notice dated 29.05.2017 or the consequent order dated 28.07.2017 to be lacking in inherent jurisdiction, on account of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss due to an error on its part, falls outside the domain of this Court, in these proceedings. Remedial action lies elsewhere. Petition allowed - decided in favor of appellant. - Writ Tax No. 511 of 2017 - - - Dated:- 26-10-2021 - Hon'ble Naheed Ara Moonis And Hon'ble Saumitra Dayal Singh JJ. For the Petitioner : Nishant Mishra For the Respondent : C.S.C. ORDER 1. Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri Manu Ghildayal, learned counsel for the Revenue. 2. Originally, the present petition was filed to challenge the notice dated 29.05.2017 issued to the petitioner by its assessing authority, under Section 31 of the U.P.V.A.T. Act, 2008 (hereinafter referred to as the Act ) for the A.Y. 2008-09, seeking to rectify the order dated 22.02.2014 passed by the then assessing authority of the petitioner, under Section 32 of the Act. During pendency of this petition, proceedings pursuant to that notice concluded. Thus, the order dated 21.06.2017 came into existence. Thereby, the assessing authority of the petitioner concluded, the order dated 22.02.2014 and consequentially, the orders dated 18.07.2014 and 3.10.2015 [for A.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4. In these facts, on 19.12.2017, the petitioner was served with an ex-parte order dated 16.08.2016 passed under Section 31 of the Act referable to the power of the assessing authority to rectify mistakes apparent on the face of the record - in the order dated 22.02.2014 i.e., the order passed under Section 32 of the Act, to recall the second - composite ex-parte assessment order for A.Y. 2008-09 (U.P., Central and, Entry Tax). Therein, the petitioner s assessing authority took a view that the order dated 22.02.2014 had been passed outside the prescribed period of limitation to frame a fresh/second assessment order. It was therefore, time barred. Consequently, the assessing authority also passed order under Section 32 of the Act (referable to the power of the assessing authority to recall an ex-parte order), and dismissed the further applications filed by the petitioner to recall the order dated 18.09.2013. If sustained, those orders would attach finality to the second - composite ex-parte assessment order dated 18.09.2013. 5. That order dated 16.08.2016, was challenged by the petitioner in Writ Tax No.97 of 2017 (M/S Ansaldo STS Transports System India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014. No other order was sought to be set-aside or rectified. By the impugned order dated 21.06.2017, the assessing authority has reasoned, since the limitation to frame the second assessment order for A.Y. 2008-09 (U.P., Central and, Entry Tax), expired on 30.09.2013, the order dated 22.02.2014 passed thereafter, was beyond the time limitation prescribed under Section 29(6) of the Act. Hence, the further assessment proceedings (reopened in the case of the petitioner) for the A.Y. 2008-09 (U.P., Central and, Entry Tax) were void-ab-initio . Consequently, he has cancelled the subsequent orders dated 18.07.2014 03.10.2015. Thus, the second - composite ex-parte assessment order dated 18.09.2013, for A.Y. 2007-08 (U.P., Central, and, Entry Tax) has been revived and rendered final. 7. Relying on the provisions of Section 31, 32 29(6) of the Act, learned counsel for the petitioner first submitted, the order dated 21.06.2017 was passed well beyond the statutory period of three years prescribed under Section 31(1) of the Act. It is time barred. Then, it is his submission, while allowing the earlier writ petition vide order dated 21.02.2017, this Court did not grant or create any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist. 13. In view of the above law, a distinction has been claimed to the ratio in Director of Inspection of Income Tax (Investigation), New Delhi and Another Vs. Pooran Mal Sons and Another, (1975) 4 SCC 568 . Therein, the bar of limitation was found to have been specifically waived by the assessee. It has been thus submitted, in absence of any consent or waiver granted by the present petitioner, the bar of limitation exists in the undisputed facts of the present case. 14. With reference to the decision in the case of the Supreme Court in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta Ors., (1980) 2 SCC 191 , it has been submitted, the said decision may not come to the aid of the revenue in face of the clear position of law arising from the larger/Constitution bench decision of the Supreme Court. 15. Then, with respect to the decision of another coordinate bench of this Court, in the case of S.K. Traders Vs. Additional Commissioner 2007 NTN (Vol. 34) 345 , it has been similarly submitted, that decision is also distinguishable. According to learned counsel for the petitioner, the correct position of law was laid down in another division bench decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in exercise of its jurisdiction under Article 226 of the Constitution of India. Therefore, indisputably, the consequential notice was issued within reasonable time therefrom i.e., almost within three months. Hence, the bar of limitation claimed by the petitioner, did not exist, or arise. He would also submit, by virtue of the second proviso to section 29 (6) of the Act, the limitation to frame the third assessment order (after the second composite ex-parte assessment order had been set aside), would stand curtailed to the balance period of limitation that survived on the date of the second ex-parte assessment order being framed i.e., up to 30.09.2013, only. Therefore, the application to set aside the second composite ex-parte assessment order dated 18.09.2013 could not be allowed after the date 30.09.2013. 19. In short, it has been submitted, in absence of surviving period of limitation to frame a fresh assessment order, the order seeking to recall the second - composite ex-parte assessment order could not be passed, beyond the date 30.09.2013. Consequentially, the order dated 22.02.2014 setting aside the second - composite ex-parte assessment order dated 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation. In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4 subsection (1), is stayed by an order of a Court shall be excluded. 22. Considering that language of the proviso to Section 6 of the Land Acquisition (Amendment) Act, 1894 and the complete absence of any statutory remedy of appeal etc. provided against a declaration made und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975 SCC (Tax) 346 : (1975) 2 SCR 104] has no application to the case at hand. 23. That view had been taken by the Supreme Court in its earlier decision in Grindlays Bank Limited Vs. ITO (supra) in the context of a proceeding under the Income Tax Act, 1961. Therein, after taking note of its earlier decision in Director of Inspection of Income Tax (Investigation), New Delhi and Another Vs. Pooran Mal Sons (supra) , with reference to an assessment order passed consequent to an earlier direction issued by the High Court, in writ jurisdiction, the Supreme Court reasoned as under: 7. ......Ordinarily, the High Court does not substitute its own order for the order quashed by it. It is, of course, a different case where the adjudication by the High Court establishes a complete want of jurisdiction in the inferior court or tribunal to entertain or to take the proceeding at all. In that event on the quashing of the proceeding by the High Court there is no revival at all. But although in the former kind of case the High C ourt, after quashing the offending order, does not substitute its own order it has power nonetheless to pass such further orders as the justice of the case r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that the Income Tax Officer, while passing an order under section 132(5), did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income Tax Officer was correct or dismissing the petition because otherwise the party would get an unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But, in the circumstances of a case, the court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice, the court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality and propriety of such order on such point as may be mentioned in the application. A copy of such application shall be served on the appellant and shall be decided along with the appeal filed by the appellant: Provided that no application for examination of legality and propriety shall be entertained after the disposal of appeal: Provided further that where the Commissioner has filed an application, the appellant shall not be entitled to withdraw appeal filed by him. Explanation For the purposes of this section Commissioner includes an officer authorised to file appeal on behalf of the Commissioner before the Tribunal under section 57. (3) No appeal against an assessment order under this Act shall be entertained unless the appellant has furnished satisfactory proof of the payment of the amount of tax or fee due under this Act on the turnover of sale or purchase, or both, as the case may be, admitted by the appellant in the tax returns filed by him or at any stage in any proceedings under this Act, whichever is greater. (4) The appeal shall be in the prescribed form and shall be verified in the prescribed manner. (5) The appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsection (1); (7) Section 5 of the Limitation Act, 1963, shall apply to appeals or other applications under this section. (8) The appellate authority shall be under the superintendence and control of the Commissioner: Provided that in the exercise of such superintendence and control, no order, instructions or directions shall be given by the Commissioner so as to interfere with the discretion of the Appellate Authority in the exercise of its appellate functions. (9) For the purposes of this section service of an order passed by appellate authority under this section and service of memo of appeal on the State Representative, as defined in the rules framed under this Act, shall be deemed to be service on the Commissioner. (10) All appeals arising out of the same cause of action in respect of an assessment year, as far as possible, shall be heard and decided together. 25. Thus, it cannot be disputed, the petitioner had a remedy of appeal against the orders dated 16.08.2016. Therefore, it also cannot be further disputed, if those appeals had been filed, the appellate authority would have been within its jurisdiction to set aside the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injuncted but not the exercise of jurisdiction to undertake that journey. That not done during the available limitation, the assessment notices subsequently issued were found not protected on principle of waiver or consent. Illustratively, it was held in paragraph 28 to 30 of that decision, as below:- 28. In the present case, the respondent cannot be said to have waived the provisions of the statute. There cannot be any waiver of a statutory requirement or provision which goes to the jurisdiction of assessment. The origin of the assessment is either an assessee filing a return as contemplated in the Act or an assessee being called upon to file a return as contemplated in the Act. The respondents challenged the Act. The order of injunction does not amount to a waiver of the statutory provisions. The issue of a notice under the provisions of the Act relates to the exercise of jurisdiction under the Act in all cases. Revenue statutes are based on public policy. Revenue statutes protect the public on the one hand and confer power on the State on the other. 29. The decision in William Shepard v. O.E.D. Barron on which the Solicitor general relied for the proposition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the matter being remitted to the assessing authority, strictly, there did not arise an issue or question of jurisdiction being exercised outside limitation. Therefore, the ratio in Supdt. Of Taxes, Dhubri Ors. Vs. Onkarmal Nathmal Trust (supra) is wholly inapposite. 30. As already discussed above, owing to completely dissimilar legislative scheme under the Act and the Land Acquisition Act, 1894, the reasoning obtaining with respect to limitation to conduct proceedings in remand under the Land Acquisition Act, 1894 is wholly inapplicable to the facts of the present case. Thus, the ratio obtaining in Baswaraj Anr. Vs. SLAO (supra) as also the division bench decision of the Court in Ram Nivas Vs. State of U.P. and Others (supra) , are wholly distinguishable and inapplicable to the present case. 31. Consequently, the ratio in the seven-Judge Constitution Bench decision of the Supreme Court in P. Ramachandra Rao Vs. State of Karnataka (supra) relied upon by learned counsel for the petitioner to submit - limitation cannot be created and the Court cannot legislate to fill up casus omissus is found to be distinguishable in the context of the clear and undisputed facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, admitted by the dealer in the returns filed by him or at any stage in any proceeding under this Act, whichever is greater . 34. Then, Section 29(6) of the Act reads as under: 29. Assessment of tax of turnover escaped from assessment. (6) . Where an order of assessment or re-assessment has been set aside by the assessing authority himself under section 32, a fresh order of assessment or re-assessment may be made before expiry of the assessment year in which such order of assessment or reassessment has been set aside: Provided that if an order of assessment or re-assessment made ex parte is set aside on or after first day of October in any assessment year, fresh order of assessment or re-assessment may be made on or before thirtieth day of September of the assessment year succeeding the assessment year in which such ex parte order of assessment or re-assessment was set aside. Provided further that where second or subsequent time any order of assessment or reassessment is made ex parte and where such second or subsequent ex parte order of assessment or reassessment is to be set aside and a fresh order of assessment or reassessment may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 32 of the Act. Unless that reasonable time is allowed, the power/authority of such an assessing authority to pass a third or other subsequent assessment order would be defeated. Also, an undue benefit would arise to the concerned assessee, unintendedly as no assessment order may come to be framed in his case, owing to absence of time. 39. At the same time, the exercise of power to set aside an ex parte assessment order, is statutorily governed by provisions of Section 32(1) of the Act. It has been quoted above. Plainly, that provision does not provide for any period of limitation to pass the order on an application filed to recall an ex parte assessment order. It only prescribes for a fixed limitation of thirty (30) days (computed from the date of service), to file an application to recall an ex-parte assessment order. 40. That provision does not restrict the right of an assessee to seek recall of an ex parte assessment order, only once or twice, with respect to an Assessment Year. In fact, the statute contemplates or allows the assessee to seek recall of each and every ex parte assessment order, every time such an order comes into existence, irrespecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18.09.2013, the order dated 22.02.2014 was wholly within time. 44. As noted above, no limitation was prescribed under Section 32 of the Act - to pass an order on an application filed within time, under that Section, to recall the second-composite ex parte assessment order dated 18.09.2013, for the A.Y. 2008- 09 (U.P., Central and Entry Tax). Therefore, the order dated 22.02.2014 was not time barred, on any count. 45. The time limitation to pass the subsequent/third set of assessment order/s arose under Section 29(6) of the Act only upon the order dated 22.02.2014 being passed. That limitation arose with reference to that date, under Section 29(6) read with the first and the second provisos thereto. As discussed above it existed up to 30.09.2014. Hence, the surviving period of limitation to pass the second set of assessment orders was wholly extraneous to the issue involved in this case. 46. Consequently, the ratio in CST Vs Sukhlal Ice Cold Storage Co. (supra) , is also irrelevant to the issue before us. Therefore, the reasoning offered by the assessing authority purportedly to rectify the order dated 22.02.2014 is wholly unacceptable and contrary to law. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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