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2022 (2) TMI 136 - HC - VAT and Sales TaxValidity of assessment order - time limitation - notice for assessment is rightly treated to have been served on the applicant or not - applicant unit having closed business on 06.11.2003 for A.Y. 2003-04 - service of notice on Naresh Agarwal was sufficient or not - section 21(6) of the U.P. Trade Tax Act - HELD THAT:- From bare perusal of the provisions of Rule 77(3) of the Rules and rule 72(g), it is evidently clear that if the noticee refuses to accept notice, the process server has not only to submit his report, but such report shall also be verified on oath. The assessing authority concerned, thereafter, in the facts & circumstances and after making such further inquiry in the matter, if any, as it deems fit, consider such refusal to be proved serviced. Under the VAT Act, a further caution/condition has been imposed that the process server is required to file an affidavit or verification. In absence of such an affidavit/verification, the process server shall be examined by another authority. This, in itself, shows the intention of the Legislature that the power of the assessing authority through process server may not be misused - In the case in hand, all the authorities have just relied upon the report of the process server and failed to note that such report of the process server was required to be examined on oath. The said primary duty required by the assessing authority is missing. From perusal of the assessment order, it reveals that the first appellate order had only relied upon the report of process server, which is bad in view of rule 77 of the U.P. Value Added Tax Rules. Further, Tribunal, by its order dated 29.05.2014, being last Court of fact, has recorded a finding of fact in favour of the applicant that the notice served upon Mr. Naresh Agarwal was not proper, but still remanded the matter. By this, the Tribunal tried to give second inning to the Revenue. In other words, a thing cannot be done directly was permitted to be done indirectly - The affidavit is also of no help to the Department as, even assuming Naresh Agarwal was authorized on behalf of the Company, even though the Company was closed down on 06.11.2003. Once a stand clearly taken by the Department that there was refusal of service, then the provisions provide under the Rules have to be complied with in its totality, but case in hand, process server was not verified as required under rule 77(3) of the U.P. Trade Tax Rules read with rule 72(9) of the Value Added Rules - the authorities are not permitted to improve their version, which was not in original proceedings. Once it has come on record that there was neither proper service, nor verification on oath of the process server, which is mandatory, the whole proceedings are rendered vitiated and are liable to be set aside. The impugned orders passed by the Tribunal as well as the assessment orders are hereby set aside - revision allowed.
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