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TMI Blog2024 (10) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment proceedings have been initiated pursuant to an audit objection, under Section 42 (3) of the JVAT Act. In this regard it is pertinent to mention here that section 42 (3) of the JVAT Act only specifies one of the categories pursuant to which reassessment can be initiated and is therefore also subject to the rigours of limitation as provided under Section 40 (4) of the JVAT Act. Such period of limitation of five years cannot be given a complete go-by the Respondents as the stipulation has been inserted by legislature to give finality to proceedings to a certain assessment year. Completion of assessment of an assessee confers valuable right upon the said assessee and the said assessment proceeding can be subjected to re-assessment strictly in accordance with the statutory provisions contained under the Act. This issue has already been decided by this Hon ble Court in M/s. Rungta Mines Ltd. [ 2023 (8) TMI 786 - JHARKHAND HIGH COURT] . It is therefore, beyond cavil that the Order dated 07.09.2021 having been passed beyond the period of limitation, is void and bad in law. Further, reassessment order being a nullity is without jurisdiction and hence its invalidity can be set u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Objections. 4. The case of the petitioner is that the Petitioner was not aware of any such Order or Objection. On making enquiries, it was found that the petitioner had received an e-mail on 23.10.2019, containing a notice of hearing dated 16.10.2019, as well as the demand notice dated 07.09.2021. Since the said e-mail went into Spam Folder of the Petitioner s representative, appropriate steps could not be taken. However, no other notice/ Order/Audit were served upon the Petitioner by e-mail except two documents mentioned hereinabove. The inadvertent error resulted due to the fact that the Petitioner had always been in receipt of the physical copies of the notice issued by the Department and hence failed to pay heed to the e-mails lying in the Spam Folder . The Petitioner immediately applied for a certified copy of the Order sheet and the Order passed pursuant to the Audit Objection which was made available to the Petitioner on 13.09.2023. 5. The further case of the petitioner is that from perusal of the Order sheet, particularly the first entry on 15.10.2019, it is evident that proceedings have been initiated under Section 42 (3) of the JVAT Act. Further, the notice of hearing d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, non- obstante clause was not inserted in Section 42 (3) extending the period of limitation from the date of receipt of audit objection, and, thus, the period of limitation would be governed by Section 40 (1) read with 40 (4) of the JVAT Act. 61. Issue No. (ii):- Section 42 (3) is to be read with Section 40 (4) of the JVAT Act and the limitation prescribed for carrying out re-assessment proceedings would be five years. (b) Reassessment order being a nullity is without jurisdiction and hence its invalidity can be set up at any time. He further submits before this Court that since the present Order has been passed beyond the period of limitation, it has rendered the entire proceedings as a nullity. In this regard reliance is placed upon the Hon ble Supreme Court in the case of Commissioner of Income Tax, Chennai v. Alagendran Finance Ltd., reported in (2007) 7 SCC 215 wherein it has been held that: 20. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has opposed the prayer of the petitioner and has made following submissions: - (a) The Petitioner is guilty of delay and latches in belatedly filing the present Writ petition. (b) The Impugned Order is an appealable Order and hence the Writ Petition should be dismissed on the ground of alternate remedy. (c) As regards the Judgment rendered by this Court in the M/s. Rungta Mines Ltd. (Supra) is concerned; it has only been submitted that the Department has taken steps to approach the Hon ble Supreme Court against the said Order. 8. Having heard learned counsel for the parties and after going through the records, at the outset it is necessary to peruse Section 40 (4) of the JVAT Act, which specifies that no order of assessment and reassessment shall be made under section 40 (1) after the expiry of five years from the end of the year in respect of which the tax is assessable. In the present case, the Assessment Year is 2015-16 and five years from the end of the relevant year would be 31.03.2021. However, the order in the present case has been passed belatedly on 07.09.2021 and hence is clearly without jurisdiction and barred by limitation. Further, it is imperative to note that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a bar when the order is wholly without jurisdiction. 10. As far as the objection in relation to the alternate remedy is concerned, the same is not an inflexible rule. Now it is well settled that the High Court has plenary powers and can exercise its writ jurisdiction despite the existence of alternate remedy in certain situations. The Hon ble Supreme Court in the case of U.P. Power Transmission Corpn. Ltd. v. CG Power Industrial Solutions Ltd., reported in (2021) 6 SCC 15 . Therefore, a writ petition would lie against an order which is wholly without jurisdiction. In this regard, that since the question of limitation is a jurisdictional issue and a writ petition would be maintainable; reliance may be placed upon the Judgment of the Hon ble Apex Court in the case of State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd., reported in (2007) 11 SCC 363. 11. As far as recourse by the Department to the Hon ble Supreme Court is concerned; the Respondents have not brought on record any document to show that a Special Leave Petition has actually been filed. Even otherwise, mere filing of any Special Leave Petition does not amount to stay of the Order of the High Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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