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TMI Blog2019 (6) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... r concened was barred by limitation, as per the proviso to Section 17 (6) of the KGST Act, as amended by Finance Act, 2005 (Act 10 of 2005). Exhibit P12 is a consolidated demand notice issued seeking realization of the arrears of tax pertaining to the years 1999-2000 and 2000-2001. With respect to the year 1999-2000, the appellant filed W.P (C) 19542/2005, which was disposed of by this court through Ext.P3 judgment by granting stay against the coercive steps of recovery, till the disposal of a statutory appeal which was pending against the said assessment. According to the appellant, the fate of the said appeal was not communicated to him. When coercive steps for sale of immovable property was issued, the appellant challenged the same in another writ petition filed as W.P (C) 6016/2009. Another Sale Notice issued as per Ext.P6 was also challenged in yet anther writ petition filed as W.P (C) 37300/2010. W.P (C) 6016/2009 was dismissed as infructuous permitting the appellant to pursue his contentions in W.P (C) No.37300/2010, based on the submission made by the appellant that the demand notice which was under challenge in W.P (C) No.37300/2010 was also inclusive of the assessments wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge was on the basis that exempted commodities were also included as taxable items. The contentions raised based on Exts.P7 and P8 judgments were repealed on the finding that the assessments with respect to the period 1999 - 2000 and 2000 -2001 were not set aside and remanded for fresh finalization. The claim for exemption made for the year 1999 - 2000 with respect to the cost of commodity of rubble was also not accepted by the learned Single Judge by finding that the appellant had failed to produce the requisite documents for claiming such exemption and on the basis of the further finding that the appellate order with respect to the said year had attained finality. 5. The only question seriously considered by the learned Single Judge pertains to the contention that, the assessment with respect to the year 2000 - 2001 remained barred by virtue of the provisions in Section 17(6) of the KGST Act. Section 17(6), as it stood originally, insists that the assessment should be completed within a period of 4 years from the date of expiry of the year to which the assessment relates. It is pointed out that, the order of assessment with respect to the year 2000 - 2001 is dated 28.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be construed as an order passed without jurisdiction. Hence, it is contended that the assessment can be challenged even at the stage of recovery, despite the fact that it is confirmed in statutory appeal. He placed reliance on the decision of the Hon'ble Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bohra(dead) through his Lrs.[(1990) 1 SCC 193]. It is held therein that; "A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings." In Swaran Kumar(cited supra) it was held that if a court inherently lacks jurisdiction to entertain a suit passes a decree, the decree thereunder is a nullity and does not bind the appellant. Therefore it does not operate as res judicata. Placing reliance on the doctrine as mentioned above, it is contended that despite confirmation of the assessment by the statutory appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act, 2005 which came into force on 01.04.2005 amendment was brought in to Section 17(6) of the KGST Act, substituting the period of five years as four years. But a proviso is added by virtue of the amendment brought in through the Finance Act, 2005 making it clear that the assessment relating to the year 2000 - 2001 shall be completed on or before 31st March, 2006. Therefore as on the date on which the order was passed, i.e. on 28.03.2006, the assessment was within time, going by the proviso added to Section 17(6) through Finance Act, 2005. Contention raised by the appellant is that, an order of assessment comes into force only when it is communicated. The making or signing of the order is not determinative of its effect. Therefore the order would come into effect only on 04.09.2006, the date on which it was admittedly despatched from the office of the Assessing Authority. In support of the above contention, learned counsel had relied on a decision of the Division Bench of this court in Agricultural Income-Tax Officer & another v. K. Joseph N. Jacob[(1995) 3 KTR 224(Ker) in which the decision rendered by the learned Judge of this court in K. Joseph Jacob v. Agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not in dispute that the order of assessment was dispatched for service to the assessee only on 4.09.2006. Question to be considered is as to whether the assessment stood completed as on 31.03.2006. Contention of the appellant is that the assessment will not become effective as against the assessee unless it is communicated. As already observed, the petitioner placed reliance in support of the above said preposition on a Division Bench decision of this Court in K.Joseph Jacob's case (cited Supra). If the contention of the appellant is that the assessment stood completed and was not pending after 28.03.2006, it is to be considered that the assessment was completed within the time limit as stipulated in the 5th proviso added to Section 17(6) through the Finance Act 2005, which enables the assessing authority to complete the assessment relating to the year 2000- 2001 on or before 31.03.2006. On the contrary, if the case of the appellant is that it has to be presumed that the assessment was completed only on 4.09.2006, which is the date of dispatch of the order, then also the assessment is well within the time limit stipulated under the substituted proviso brought into Section 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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