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TMI Blog1974 (7) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax under section 13(3)(b) of the Act, overruled the contention of the dealer, who is the petitioner in these revision petitions, on the ground that he has no jurisdiction to go into the question whether there was proper service of the notices of demand. The matters arise in this way. The petitioner, one Manusukhlal A. Shah is a dealer assessed under the Act for the assessment years 1969-70 and 1970-71. Two assessment orders were passed by the Assistant Commercial Tax Officer, IV Circle, Bangalore, on 5th September, 1972, and 27th September, 1972, respectively. The notices of demand were not served personally on the dealer, but were served by affixture on 28th October, 1972. The dealer did not pay the tax and, therefore, proceedings for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. In order to appreciate his contention, it is necessary to set out the said rule. It reads: "The service on a dealer or licensee of any notice, summons or order under the Act or these Rules may be effected in any of the following ways, namely: (a) by giving or tendering it to such dealer or licensee or his manager or agent; or (b) if such dealer or licensee or his manager or agent is not found, by leaving it at his last known place of business or residence or by giving or tendering it to some adult member of his family; or (c) if the address of such dealer or licensee is known to the assessing or licensing authority, by sending it to him by registered post; or (d) if none of the modes aforesaid is practicable, by affixing it in som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixation can be resorted to only if none of the other modes is practicable. It follows, therefore, that whenever recourse is desired to be taken to the mode of service mentioned in clause (d), the other modes should be tried first, unless it is shown that none of the other modes was practicable............... Now, whether a particular mode is practicable or not is a matter to be decided by the Sales Tax Officer, and if the Sales Tax Officer after applying his mind to the facts of the case expressed the opinion that service by other modes was not practicable, it was legitimate for him to have ordered the service to be effected through affixation. But that has not been done in the instant case. What appears to have happened is, as is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any escaped turnover can be made, unless a valid notice under section 21 is issued and served upon the assessee within the time prescribed in that behalf. Merely because the assessee had the knowledge of the proceedings under section 21 cannot take the place of the service of a valid notice under section 21. In the instant case on the department's own showing the notice under section 21 had been served upon the assessee by affixation on 30th March, 1962. The question is as to whether that notice had been validly served............Obviously the mode of service by affixation can be resorted to only if none of the other modes is practicable. In the instant case, service by affixation was resorted to in the first instance without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case(1), but was rejected. Their Lordships of the Madras High Court stated: "The modes of service referred to in clauses (a) to (c) are only alternative and not cumulative and, therefore, it cannot be said that all the above three modes have to be exhausted before the service by affixture can be effected under clause (d)." In the said case, service of notice by registered post was attempted, but was unsuccessful and, therefore, service was effected by affixture. In our judgment, the view taken by the High Court of Madras in Sanjeevi Naidu's case(1) lays down the correct law. The assessing authority, in the very first instance, may direct service of notice by registered post; it is not obligatory that he should first attempt to serve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealer incurs penalty. Therefore, before ordering the service of notice by affixture, it is the duty of the assessing authority to attempt to serve the notice either by personal delivery as contemplated in clause (a) or by sending it by registered post as contemplated in clause (c). and if none of the alternative modes is practicable after having tried it and found it to be unsuccessful, then it may order service by affixture. In the instant case, the learned counsel for the department, has placed the relevant papers before us. There is no material to show that the assessing authority formed the opinion that it was not practicable to serve the notices of demand except by affixture. There was a report made by the Sales Tax Inspector to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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