TaxTMI 
TaxTMI 
2018 (4) TMI 364
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....e to be made against the revisionist. Seeking recall of the said ex parte order, an application under Section 30 of the 1948 Act is stated to have been moved which came to be rejected on 30 March 1996. Aggrieved by the rejection of the application under Section 30, the revisionist is stated to have filed an appeal which came to be allowed on 6 July 1996. Since the terms on which the said appeal was allowed would have some bearing, it would be apposite to refer to the following extracts as they appear in the operative portion of the order of the appellate authority:- On 31 March 1997 a fresh order of assessment was made. Against the said order of assessment, the revisionist instituted a statutory appeal which was remanded to the assessing authority by an order dated 28 December 1998. By order dated 31 March 1999, the assessment proceedings again came to be closed against the revisionist ex parte. This time, however, the application under Section 30 was allowed. On reassessment, additional tax of Rs. 1,85,202/- came to be imposed upon the revisionist. Against this order of assessment, an appeal is stated to have been filed raising various grounds including the objection that the r....
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....peal which was preferred by the revisionist asssessee. It is also contended that the first appellate authority dismissed the appeal without returning any finding on the issue of limitation which stood directly raised. In view thereof the finding recorded by the Tribunal that this issue did not arise from the order of the first appellate authority is not liable to be sustained. The conclusion recorded by the Tribunal and noticed above is also unsustainable and liable to fail for yet another reason. As the language of Section 21 (5) would evidence, the said provision does not essentially prescribe a period of limitation which operates upon or against the assessee. It prescribes a period within which a fresh order of assessment or reassessment is liable to be made. In this sense, the obligation to decide within six weeks from the date of an order being passed setting aside an ex parte assessment order stands cast upon the assessing authority. It intrinsically prescribes the period within which a fresh order of assessment may be made. If the period so prescribed is allowed to lapse, no rights of the assessee stand obliterated or effaced. In fact and to the contrary it is the juri....
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....88, it is said that lack of jurisdiction cannot be waived, consented to, or overcome by agreement of the parties. 47. It is well settled that essentially jurisdiction is an authority to decide a given case one way or the other. Further, even though no party has raised objection with regard to jurisdiction of the court, the court has power to determine its own jurisdiction. In other words, in a case where the court has no jurisdiction it cannot confer upon it by consent or waiver of the parties. 51. In NTPC Ltd. v. Siemens Atkeingesellschaft [(2007) 4 SCC 451] , this Court considering the similar question under the Arbitration and Conciliation Act held as under: (SCC p. 463, para 17) 17. "In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may in a sense touch on the jurisdiction of the court or tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, a case of the court or tribunal refusing to exercise jurisdiction to go into the merits of the claim. In Pandurang Dhondi Chougule v. Maruti Hari Jadhav [AIR 1966 SC 153]....
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.... application referable to Section 30 and it was only an order liable to be viewed as remitting the matter to the assessing authority to consider whether circumstances warranted the assessment being reopened under Section 30. It was in order to evaluate this submission that this Court had in the earlier part of the judgment, extracted the order passed by the first appellate authority dated 6 July 1996. As is evident from the operative directions, the first appellate authority in unequivocal and unambiguous terms directed the assessing authority to reopen proceedings under Section 30. Section 30 as contained in the 1948 Act envisages an enquiry being undertaken by the assessing authority to consider whether circumstances warrant reopening or setting aside an assessment made ex parte. As the Court reads the operative directions in the order dated 6 July 1996, it does not find the conferment of a discretion in the assessing authority to consider whether to reopen and set aside the ex parte order. The language employed by the first appellate authority is a clear and unambiguous command to reopen and consequently reassess. The use of the words "re-open" left no discretion in the hands of....
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....t Commissioner (Judicial) dated 13.12.1993 was served on the Assessing Authority on 11.1.1994. Hence whether we take 13.12.1993 as the date from which the period of limitation begins, or 11.1.1994, in either case the period of limitation for making an assessment had expired before 17.8.1994 when the fresh assessment was actually made. xxx xxx xxx 17. For the reasons given above, we answer the question referred by observing that it will be Section 21(5) which will apply in cases where the appeal is allowed against an order rejecting the application under section 30 of the u.p. trade tax act. 18. As regards the question as to from what date the limitation period will run, in our opinion, if the parties or the Counsels were present before the Appellate Authority when he passed his order, then the limitation will run from the date of the order, but if they came to know about the order only subsequently, it will run from the date of service of the order or knowledge of the order, whichever is earlier." If the above principles as enunciated by the Full Bench are borne in mind, it is evident that the period of limitation will have to be necessarily recognised to have commenced....