TaxTMI 
TaxTMI 
2008 (7) TMI 553
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....By the impugned main orders, the Division Bench, while allowing the appeals, has set aside the assessment orders passed under the Rajasthan Sales Tax Act, 1994 (for short, "the Act") in respect of assessment years 1995-96 and 1996-97 and has remanded the cases for fresh assessments by a new assessing officer, to be nominated by the Commissioner of Commercial Taxes, Rajasthan. Though the appeals pertain to two assessment years but are interconnected insofar as the decision in appeal pertaining to the assessment year 1996-97 will depend upon the decision in appeal for the year 1995-96 because in its order for the latter year, the High Court has substantially relied on its order for the earlier year. Therefore, we propose to dispose of both the appeals by this common order. However, we shall refer to the facts emerging from the record for the assessment year 1995-96. The appellant, a proprietorship concern, is a dealer under the Act. For the assessment year 1995-96, an ex parte assessment was framed on May 19, 1998. On appeal, the order of assessment was set aside by the Deputy Commissioner (Appeals) vide order dated June 8, 2000 on the ground that proper opportunity of hearing ....
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.... March 23, 2002 and June 25, 2002 is apparent, which makes the assessment order an outcome of these mechanisations, by antedating the proceedings and pass the order by ante-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 about its tampering with. Obviously, the assessee would not be a party to it to suffer ante-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 June 7, 2002 in the absence of the assessee by tempering with the record of the proceedings dated March 23, 2002 and June 25, 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....
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.... Senior Counsel appearing on behalf of the appellant, submitted that in the light of its afore-extracted observations and a clear finding that the assessment order for the assessment year 1995-96 had been ante-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. 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 al....
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....assessing officer, could the assessment orders be said to be null and void, as pleaded on behalf of the appellants. 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 v. Chaman Paswan See AIR 1954 SC 340.). 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. 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 t....