LexM/S. DEEPAK AGRO FOODS versus STATE OF RAJASTHAN AND ORS.
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[2008] 10 S.C.R. 877 MIS. DEEPAK AGRO FOODS v. STATE OF RAJASTHAN AND ORS. (Civil Appeal Nos.4327-28 of 2008) JULY11,2008 [C.K. THAKKER AND D.K. JAIN, JJ.] A B Rajasthan Sales Tax Act, 1994 - Chapter IV - s.29 - Fresh assessment -Limitation - Held: If assessment order is set aside by Appellate Authority, fresh assessment has to be . completed within two years from date of communication of the : C order in appeal to the Assessing Authority and not from the date of order in appeal. . Judgment I Order - "Null and void" order and "illegal or irregular" order -Distinction between - Explained and eluci- D dated. The High Court, by the impugned orders, set aside assessment orders passed under the Rajasthan Sales Tax Act, 1994, in respect of the assessment years 1995-96 and 1996-97 and remanded the cases for fresh assessments E · by a new Assessing Officer, to be nominated by the Com- missione_r of .Commercial Taxes, Rajasthan. The Appellant contended that the assessment orders having been made after expiry of the period of limitation, were null and void and should have been annulled and F that by remanding the matter back to the Assessing Of- ficer for fresh assessment, the High Court not only ex- tended the statutory period prescribed for completion of assessment, it also conferred jurisdiction upon the As- sessing Officer, which he otherwise lacked on expiry of G ·the said period. It was also contended by the Appellant that the as- sessment orders in question were also null and void on 877 H 878 SUPREME COURT REPORTS [2008] 10 S.C.R. A account of the stated irregularities committed by the As- sessing Officer during the course of assessment proceed- ings. Dismissing the appeals, the Court s HELD:1.1. AU 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 jurisdic- C tion, such order would be withqut jurisdiction, null, non est and void ab initio as defect of jurisdiction of an au- thority 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. Ho.wever, exercise 0 of jurisdiction in a wrongful manner cannot result in a nul- lity- it is an illegality, capable of being cu~ed in a duly con- stituted legal proceedings. [Para 15] [885-D,E,F] 1.2. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has E usurped a jurisdiction which it did not have; a ·mere wrong 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 F jurisdiction. A distinction exists between a decree passed by a court having no jurisdiction and consequently be- ing a nullity and not executable and a d~cree of the court which· is merely illegal or not passed in accordance with the procedure laid down by law. A dec~ee suffering. from G illegality or irregularity of procedure, cannot be termed inexecutable. [Para 17] [886-B,C,D] H Kiran Singh & Ors. v. Chaman Paswan & Ors. AIR (1954) SC 340 and Rafique Bibi (Dead) By LRs. v. Sayed Waliuddin (2004) 1 sec 287 -relied on. MIS. DEEPAK AGRO FOODS v. STATE OF 879 RAJASTHAN & ORS. 2. On a bare reading of Clause(b) of sub-section 8 of A s.29 of the Rajasthan Sales Tax Act, 1994, it becomes abundantly clear that if an assessment order is set asid~ by an Appellate Authority, fresh assessment has to be completed within a period of two years from the date of communication of the order in appeal to the Assessing B Authority a~d not from the date of order in appeal; as pleaded by the appellant. In the presentcase, apart from the fact 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 . c the prescribed time, even otherwise, the assessment or- ders in question could not be held to be null and void on account of the stated irregularities committed by the as-~ sessing officer during the course of assessment proceed-, ings. Therefore, despite scathing observations by the High, 0 Court on the conduct of the assessing officer, it was a c
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