TaxTMI 
TaxTMI 
2008 (8) TMI 807
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.... 2006. The petitioner's business has been audited under the OVAT Act on November 22, 2006 and it was reported with the detection of suppression of purchase and sale of Rs. 16,71,847 resulting from verification of physical stock of the items taken on November 22, 2006 with its books of account and finding discrepancies on various items. The petitioner was served with the notice dated June 16, 2007 (annexure 1) to appear for hearing for the purpose of assessment on the basis of audit report. The petitioner was heard. However, the said assessing authority passed the order impugned dated July 3, 2007 on the basis of audit report and held that the assessee was liable to tax and penalty together to the tune of Rs. 7,68,114 and after making the adjustment of the amount already deposited by it, it was directed to make the payment of the balance amount of Rs. 6,83,789 as per the terms and conditions of the demand notice of the same date (annexure 2). Hence this writ petition. Shri J. Sahoo, learned counsel for the petitioner, has raised a large number of issues beyond the assessment order and the issue of jurisdiction as per the scheme of the OVAT Act. The sheet anchor of his argument ....
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....having no competence or filing any objection under rule 49(3) of Rules, 2005 before the said assessing authority that he was not competent to proceed with his assessment. Had the petitioner raised such an issue, proceedings could have been transferred to the competent authority. Even the statutory provisions of rule 49(4) of Rules, 2005 mandatorily provide for determination of the objections, by the assessing authority, if any raised by the dealer/assessee first before passing the assessment order. The petitioner participated in the assessment proceedings and invited assessment order. Therefore, the question does arise as to whether in such fact-situation, the petitioner can be permitted to take advantage of his own mistake. No explanation has been furnished by Mr. Sahoo, learned counsel for the petitioner as to why such objection has not been raised at the first instance either by filing objection before the said assessing authority or by filing the writ petition before this court. Had the assessment order of refund been passed by the same officer, we are very much doubtful that the petitioner could have challenged this assessment order though in these circumstances it remained w....
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....rmance cannot be forced in any other manner". Nearly a Constitution Bench of the Supreme Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340, considering the issue of jurisdiction on the basis of valuation of the suit held that it is a fundamental principle. ". . . It is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the district court of monghyr was 'coram non judice', and that its judgment and decree would be nullities . . ." The Constitution Bench in Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 199 held that: "It is well-set....
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....tion of such authority goes to the root of the matter and strikes at his very authority to pass any order and such a defect cannot be cured even by consent of the parties. . . . However, exercise of jurisdiction in a wrongful manner cannot result in a nullity-it is an illegality capable of being cured in 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 to assessment proceedings." While deciding the said case, a very heavy reliance has been placed by the Supreme Court on its earlier judgment in Rafique Bibi v. Sayed Waliuddin (dead) by L. rs., [2004] 1 SCC 287, explaining the distinction between "null and void decree" and "illegal decree". It has been held therein 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 exercise of jurisdiction does not result in a null....
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....ase to a competent officer. However, the fact remain that the order passed by the authority lacking patent jurisdiction is liable to be quashed. In Rattan Lal Sharma v. Management Committee, Dr. Hari Ram (Coeducation) Higher Secondary School AIR 1993 SC 2155, the apex court held that though the plea might have not been raised before the authority, it goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact. The party should be permitted to raise such an issue in subsequent proceedings to do justice which is the paramount consideration of the court and it is always desirable that the litigant should not be shut out from raising such plea which goes to the root of the lis involved. In H.V. Nirmala v. Karnataka State Financial Corporation [2008] 7 SCC 639, the apex court rejected the contention that the appellant therein was entitled to agitate the jurisdictional issue which she had not taken before the enquiry officer pointing out that as she had participated in the proceeding without any protest, she could not be permitted to raise such a contention. The court further held that in such....