TMI Blog2012 (11) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated April 20, 2010 passed by the Assessing Authority imposing penalty under section 38 of the Act was without affording any opportunity of hearing to the appellant. - VATAP No. 43 of 2012 - - - Dated:- 22-11-2012 - AJAY KUMAR MITTAL AND SANDHAWALIA G.S., JJ. For the Appellant : Avneesh Jhingan For the Respondent : Nitin Kaushal, Additional Advocate-General, Haryana, JUDGMENT :- The judgment of the court was delivered by AJAY KUMAR MITTAL J.- The appellant, in this appeal filed under section 36 of the Haryana Value Added Tax Act, 2003 (hereinafter referred to as, the Act ) against the order passed by the Haryana Tax Tribunal, Chandigarh (hereinafter referred to as, the Tribunal ) in STA No. 932 of 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Authority had also recorded that penalty proceedings be initiated under section 38 of the Act for which notice in form N-3 be issued to the dealer for April 20, 2010. 3. None appeared on behalf of the appellant on April 20, 2010. The Assessing Authority, vide ex parte penalty order dated April 20, 2010 (annexure P2), levied a penalty of ₹ 2,69,956 which was impugned by the dealer before the Joint Excise and Taxation Commissioner (Appeals), Rohtak on the ground that the order imposing penalty under section 38 of the Act was without affording any opportunity of hearing to the appellant as no notice had been served upon it. The said appeal having been rejected, second appeal was carried to the Tribunal, which was dismissed vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported as AIR 1964 Cal 241 in support of his submission. 6. After hearing learned counsel for the parties, the primary dispute that arises for consideration in this appeal is whether the service of notice on the friend of the appellant and the report of the process server dated November 7, 2010, in respect of penalty proceedings which had concluded on April 20, 2010 could form the basis for holding that the appellant had been validly served and the levy of penalty vide ex parte order dated April 20, 2010 was justified. 7. It would be expedient to reproduce rule 79(1)(a) of the Rules which is relevant for determination of controversy involved herein, it reads thus: 79. Method of service of notice and supply of copy of order. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus: 12. Service to be on defendant in person when practicable, or on his agent.-Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. 16. Person served to sign acknowledgment.-Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. 11. Even under these rules, learned State counsel was unable to demonstrate that the service of notice on the friend of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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