M/S Deepak Agr Foods vs State Of Rajasthan And Ors

order of assessment was set aside by the Deputy

Commissioner (Appeals) vide order dated 8th June, 2000 on

the ground that proper opportunity of hearing had not been

granted to the appellant. In pursuance of the said order, a

fresh notice was issued to the appellant for appearance on

12th February, 2002. On the said date at the request of the

appellant, the case was adjourned to 14th March, 2002 and

then to 23rd March, 2002, when the appellant again sought

time for collecting the requisite details/ information and he

was granted three months' time for the said purpose. The

case was fixed on 25th June, 2002.

5. According to the appellant, he appeared before the

Assessing Officer on 25th June, 2002 and requested for

some more time to furnish the bank statements etc. and

3 the case was accordingly kept for 29th June, 2002.

However, on 29th June, 2002, when the appellant appeared

before the Assessing Officer, he is said to have been told

that the assessment order had already been passed on 7th

June, 2002.

6. Being aggrieved, the appellant challenged the said order by

preferring a writ petition. In the writ petition, it was alleged

that the assessment order was anti-dated and in fact the

same was passed on 29th June, 2002, by which date the

period of limitation was over. Interpolation in the order

sheets dated 23rd March, 2002 and 25th June, 2002 was

alleged and it was also stated that the appellant was

coerced to countersign the cuttings and tempering in the

order sheets. However, the writ petition was dismissed by

the learned Single Judge in limine, inter alia, on the ground

that if the writ petitioner had any grievance that the

proceedings had not been recorded correctly, he could have

drawn the attention of the Presiding Officer towards such

errors while the matter was still fresh to his mind.

4 Accordingly, the learned Single Judge directed the

appellant to bring the alleged anomalies to the notice of the

Assessing Officer and simultaneously, if so advised, he

could challenge the assessment order by filing appeal

before the Appellate Authority.

7. The correctness of the order passed by the learned Single

Judge was questioned by the appellant before the Division

Bench. On perusal of the original records, particularly

order sheets dated 23rd March, 2002 and 25th June, 2002,

the learned Judges felt convinced that some over-writings

and interpolations in the order sheets had taken place.

They observed thus:

"In these circumstances, the assertions made by the assessee in his petition about tempering with the record of the proceedings dated 23.3.2002 and 25.6.2002 is apparent, which makes the assessment order as an outcome of these mechanisations, by anti dating the proceedings and pass the order by anti dating it and in the allegation of assessee cannot be reasonably ruled out. The assertion of assessee stands fully corroborated by the record of the proceedings which speaks eloquently

5 about its tempering with. Obviously, the assessee would not be a party to it to suffer anti dated ex-parte order to his detriment. It can reasonably be attributed to the Assessing Officer, who had chosen this path for the reasons best known to him.

More so the Assessing Officer having been impleaded as party respondent by name has not chosen to appeal and answer the assertions. It is a case in which it can very well be said that the record speaks for itself. In the aforesaid circumstances, an order alleged to have been passed on 7.6.2002 in the absence of the assessee by tempering with the record of the proceedings dated 23.3.2002 and 25.6.2002 cannot be sustained."

The Division Bench strongly felt that it was a fit case in which

arm of the Court in exercise of its extraordinary jurisdiction

must reach to remedy the breach of principles of natural

justice, arising from breach of code of conduct, by officer

acting against all canons of fair play and transparency in

discharging its duties as statutory functionary. Accordingly,

as stated supra, the appeal was allowed; assessment order

dated 7th June, 2002 was set aside and demands raised

6 consequent thereto were quashed, with a direction to the

Commissioner of Commercial Taxes, Rajasthan to nominate

another Assessing Officer, not below the rank of a Senior

Commercial Taxes Officer, for making fresh assessment. The

Division Bench directed the appellant to appear before such

nominated authority on 1st of July, 2004 and also that the

assessment period would be counted thereafter by 31st

August, 2004. As regards assessment year 1996-97, though

there was no specific allegation of interpolation in the records,

like in the previous year, yet the High Court felt that since the

same officer had framed the assessment and the proceedings

for this year were being taken up simultaneously, these also

did not go out of the cloud of suspicion surrounding the

assessing officer. The learned Judges were also of the view

that notice fixing the hearing on 8th June, 2002 had not been

properly served. Accordingly, assessment order for this year

as well was set aside with similar directions as were given in

respect of the assessment year 1995-96. Being dissatisfied

with the direction for fresh assessments, these appeals have

been preferred by the dealer.

7

8. In the counter affidavit filed on behalf of the respondents,

pursuant to the issue of notice, averments in the petition in

regard to the interpolation of records are denied. It is

stated that the order passed by the Deputy Commissioner

(Appeals) on 8th June, 2000, setting aside the assessment

order dated 19th March, 1998 was received by the Assessing

Officer only on 13th July, 2000 and, therefore, the

assessment order passed on 7th June, 2002 was within

time. It is pleaded that even if it is assumed that the

assessment order had been actually passed on 29th June,

2002, as alleged by the appellant, and had been anti-dated

as 7th June, 2002, to save limitation, still the same was

within the period of limitation, which was to expire on 12th

July, 2002. Though a rejoinder affidavit has been filed on

behalf of the appellant but the said assertion has not been

controverted.

9. Shri Rajiv Dutta, learned senior counsel appearing on

behalf of the appellant, submitted that in the light of its

afore-extracted observations and a clear finding that the

8 assessment order for the assessment year 1995-96 had

been anti-dated, the order was null and void. It was urged

that assessment proceedings after the expiry of the period

of limitation being a nullity in law, the High Court should

have annulled the assessment and there was no question of

a fresh assessment. Thus, the nub of the grievance of the

appellant is that in remanding the matter back to the

Assessing Officer, the High Court has not only extended the

statutory period prescribed for completion of assessment, it

has also conferred jurisdiction upon the Assessing Officer,

which he otherwise lacked on the expiry of the said period.

10.Per contra, Shri Sushil Kumar Jain, learned counsel

appearing on behalf of the respondents submitted that

since assessments in respect of both the assessment years

had been completed within time, the impugned directions

are in order. Learned counsel also pointed out that

pursuant to and in furtherance of the orders passed by the

High Court, fresh assessments in respect of both the

assessment years have already been completed.

9

11.Having given anxious consideration to the rival stands, we

are satisfied that the appeal is misconceived and is liable to

be dismissed.

12.Chapter IV of the Act lays down the procedure for payment

of tax, filing of returns and assessments. Section 29

prescribes the procedure and time limits for completion of

assessment. Clause (b) of sub-section 8 of Section 29,

relevant for our purpose, reads as follows:

"(8)(b) Notwithstanding anything contained in sub-clause (a), where an assessment order is passed in consequence of or to give effect to, any order of an appellate authority or the Tribunal or a competent court, it shall be completed within two years of the communication of such order to the assessing authority; however, the Commissioner may for reasons to be recorded in writing, extend in any particular case, such time limit by a period not exceeding six months."

On a bare reading of the provision, it becomes abundantly

clear that if an assessment order is set aside by an Appellate

Authority, fresh assessment has to be completed within a

10 period of two years from the date of communication of the order

in appeal to the Assessing Authority and not from the date of

order in appeal; as is pleaded by the appellant.

13.As afore-stated, in the counter-affidavit as well as in the

written submissions filed on behalf of the respondents, it is

stated that the order of the Appellate Authority, dated 8th

June, 2000, was received by the Assessing Authority on

13th July, 2000 and, therefore, fresh assessment, pursuant

to the said order, could be completed by 12th July, 2002

(ignoring further period of six months, which could be

extended by the Commissioner). That being so, even if it is

assumed that the assessment order, for the assessment

year 1995-96, had, in fact, been passed on 29th June,

2002, as alleged by the appellant, it was still very much

within the time limit prescribed under the afore-noted

provision i.e. 12th July, 2002. We are, therefore, unable to

accept the stand of the appellant that the assessment

having been made after the expiry of the time limit, it was

null and void and should have been annulled.

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14.Having come to the above conclusion, the next question

which requires consideration is whether in the light of the

observations of the Division Bench in the afore-extracted

paragraph on the irregularities as also the conduct of the

assessing officer, the assessment orders could be said to be

null and void, as pleaded on behalf of the appellants?

15.All irregular or erroneous or even illegal orders cannot be

held to be null and void as there is a fine distinction

between the orders which are null and void and orders

which are irregular, wrong or illegal. Where an authority

making order lacks inherent jurisdiction, 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. Vs. Chaman Paswan

& Ors.1). However, exercise of jurisdiction in a wrongful

manner cannot result in a nullity - it is an illegality,

1 AIR 1954 SC 340

12 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 the issue laid down under the civil law may not

stricto sensu apply to assessment proceedings.

Nevertheless, in order to appreciate the distinction between

a "null and void" order and an "illegal or irregular" order, it

would be profitable to notice a few decisions of this Court

on the point.

17.In Rafique Bibi (Dead) By LRs. Vs. Sayed Waliuddin

(Dead) By LRs. & Ors.2, explaining the distinction between

"null and void decree" and "illegal decree", this Court has

said that a decree can be said to be without jurisdiction,

and hence a nullity, if the Court passing the decree has

usurped a jurisdiction which it did not have; a mere wrong

2 (2004) 1 SCC 287

13 exercise of jurisdiction does not result in a nullity. The

lack of jurisdiction in the court passing the decree must be

patent on its face in order to enable the executing court to

take cognisance of such a nullity based on want of

jurisdiction. The Court further held that a distinction

exists between a decree passed by a court having no

jurisdiction and consequently being a nullity and not

executable and a decree of the court which is merely illegal

or not passed in accordance with the procedure laid down

by law. A decree suffering from illegality or irregularity of

procedure, cannot be termed inexecutable.

18.In view of the above, in the present case, apart from the

fact that on a plain reading of Section 29(8)(b) of the Act, it

is manifestly clear that fresh assessment for the

assessment year 1995-96, framed pursuant to the order

passed by the appellate authority on 8th June, 2000, was

well within the prescribed time, even otherwise, in the light

of the afore-stated settled law, the assessments orders in

question could not be held to be null and void on account

14 of the stated irregularities committed by the assessing

officer during the course of assessment proceedings. In our

opinion, therefore, despite scathing observations by the

Division Bench on the conduct of the assessing officer, it

was a case of an irregularity in assessment proceedings by

the officer, who was not bereft of authority to assess the

appellant. At best, it was an illegality, which defect was

capable of and has been cured by the High Court by setting

aside the orders and by granting consequential relief.

19.In the conspectus of the circumstances aforesaid, we do

not find any infirmity in the impugned directions given by

the Division Bench of the High Court warranting

interference in the exercise of our jurisdiction under Article

136 of the Constitution. The appeals are devoid of any

merit and are dismissed accordingly with costs throughout.

.................................................J. (C.K. THAKKER)

15 .................................................J. (D.K. JAIN) NEW DELHI;

JULY 11, 2008.

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