TMI Blog2002 (2) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... riod on March 7, 1987 and determined taxable turnover at Rs. 13,88,248.68 paise and demanded tax and penalty of Rs. 1,11,559.89 paise and after adjustment of the payment already made, demand for payment of Rs. 55,163.51 paise was made by respondent No. 2. Against that order, the petitioner preferred an appeal before the Assistant Commissioner who by order dated April 27, 1993 confirmed the order of respondent No. 2. The petitioner went in revision before respondent No. 1, the West Bengal Commercial Tax Appellate and Revisional Board (hereinafter referred as "the Board") on July 7, 1993 and prayed for order of stay. The petitioner had no knowledge that the said revision has been disposed of. In the meantime the petitioner filed an application before respondent No. 3, Additional Commissioner-the designated authority for relief under the Settlement of Disputes Act, 1999 praying for settlement of the dispute over the arrear of tax concerning the impugned assessment. On July 27, 2000, the petitioner got a letter dated July 20, 2000 of respondent No. 3-the designated authority wherefrom he came to know only that the settlement application has been rejected by the order dated May 30, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re being no revision pending, application for settlement before the designated authority, respondent No. 3, is not maintainable in law and as such the dismissal order has been rightly passed by respondent No. 3 and no notice in such a case is required to be given upon the party. The application therefore is liable to be dismissed. 4.. The questions that require determination are as follows: (No. 1)-Whether the West Bengal Commercial Tax Appellate and Revisional Board (respondent No. 1) was justified under the facts and circumstances of the case in dismissing the petitioner's application for revision for default or in other words whether the Board was right in holding that there was due service of notice as per law on the petitioner informing the date of hearing before the Board? (No. 2)-Whether the Additional Commissioner, Commercial Taxes-the designated authority under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 (respondent No. 3) was justified in passing the impugned order dated May 30, 2000 of rejection of petitioner's application without giving an opportunity of hearing to the petitioner? 5.. While assailing the impugned order dated October 24, 1997 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to show or even to infer that the President of the Board was not satisfied about the service by registered post and that for that only he had to take recourse to the proviso clause. As per him, the step of affixing in the notice board is in addition to the one taken. It is enough as per the legal provision to effect the service by any of the three methods (a), (b) or (c)-as stated before. Our attention was also drawn to clause (2) of rule 278 where it has been specifically mentioned that when a notice is sent by registered post it shall be deemed to have been received by the addressee at the expiry of the period normally taken by registered letter in transit, unless the contrary is proved. There is nothing to show here except the denial, simpliciter by the petitioner. But simple denial is not proof. We do not find any other evidence like affidavit of the concerned postman or any such person in support of petitioner's assertion to undo the legal presumption of service. We have already gone through the impugned order dated October 24, 1997 as well as the provisions of rule 278 concerning service of notice and its mode. We are in agreement with the submission of the learned Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Revision Case No. 314/93-94). Hence the dealer's petition for settlement of dispute under the Act of 1999 has been rejected by respondent No. 3. It may be mentioned that to be eligible to make application for settlement of arrear tax, etc., in dispute in respect of any period for which assessment has been made, an appeal or revision has to be pending. Admittedly said revision was not pending on the date of the order May 20, 2000 or even on the date of filing that application for settlement in this case since that revision was already disposed of by the order of dismissal on October 24, 1997. So at the very preliminary stage, by the impugned order, the application suffered rejection. It is contended by learned advocate for the petitioner that no opportunity having been given to the petitioner before passing the impugned order, natural justice has been violated and accordingly the order impugned should be regarded as non est. Learned State Representative on the other hand submits that the application was found to be defective at the very outset at the time of verification and there is no provision for giving a hearing on such matter as above and the order that was passed is the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed for default long before the petition for settlement has been filed mentioning the revision as pending. That being the case the petitioner was found at the very threshold to be an ineligible person to prefer such an application under the Settlement Act of 1999. There is no point in such a case for sending a notice to the petitioner before passing the order of rejection. It was only required on behalf the designated authority to let the petitioner know the order by serving a copy of the order of rejection. The order contained a direction to that effect concerning intimation by registered post. But the office of respondent No. 3 sent that intimation of rejection but not the copy of the order. However, that is a subsequent eventa lacuna of course-which was subsequently made good but that by no means can be a ground for challenging the legality of the rejection order passed. We find that the order dated May 30, 2000 of respondent No. 3 is valid and lawful and that no illegality has been committed by not intimating the petitioner before passing such an order. 8.. In the result, we hold that both the orders of October 24, 1997 and May 30, 2000 suffer from no illegality and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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