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TMI Blog2017 (4) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 of the Bombay Sales Tax Rules, 1959, the Tribunal was justified in law in holding that the Revision notice dated 26.11.2002 calling the appellant for hearing on 27.01.2003 was not properly served as per the said provisions in Rule 68 and that therefore the entire revision proceedings got vitiated to render the revision order as void and bad in law? (b) Whether on the facts and circumstances of the case and on true and correct interpretation of the provisions in rule 68 of the Bombay Sales Tax Rules, 1959, and having regard to the rulings of the Patna High Court judgment in the case of M/s. Judagi Sao and Another (116 STC 106) and the Orissa High Court judgment in the case of M/s. Mahabir Prasad Agrawalla (79 STC 163), the Tribunal was j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the authority which has been entrusted with the job of serving the notice?" Although various questions have been formulated, we do not see any reason for answering each of them. 2. There is a very limited controversy before us. The statement of fact denotes that, one Sunil Haribhau Pote, the respondent before us, is the proprietor of a sole proprietary concern. He was the original appellant in Appeal No.94 of 2003, decided on 3.11.2004. He is engaged in the manufacture and sale of edible oils. He is duly registered under the provisions of the Bombay Sales Tax Act, 1959 (for short, "the BST Act"). He was assessed for the Financial Year 1991-92 under the BST Act by virtue of the Assessment Order, dated 20.1.1995, passed by the Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. That order was for transfer of proceedings. On the proceedings being transferred, the Competent Officer issued necessary notice to the sole proprietor and eventually passed an order of reassessment, dated 9.6.1999. That was in terms of the power conferred by Section 35 of the BST Act. The total demand of Rs. 1,44,71,441/was confirmed. Being aggrieved by this order, the sole proprietor filed an appeal before the Assistant Commissioner of Sales Tax (Appeals), Worli, Mumbai. In that it was contended that the reassessment order had already merged into the first appellate order and by virtue of which it stood confirmed. In that view of the matter the reassessment is bad in law. The Appellate Assistant Commissioner accepted this background a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this notice was also pasted on a conspicuous part of the sole proprietor's business place. It is in these circumstances that on 27.1.2003 the Deputy Commissioner passed an ex parte revisional order. He set aside the order passed in the appeal on 28.3.2000 and restored the reassessment order dated 9.6.1999. The Deputy Commissioner also issued directions to recover the dues in accordance with law. 4. It is aggrieved and dissatisfied with this order that Appeal No. 94 of 2003 was preferred by the sole proprietor. It was heard by a Bench of the Maharashtra Sales Tax Tribunal. However, that Bench was divided in its views on the aspect of service. One Member recorded a finding that the sole proprietor was duly served whereas the other was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that there was no service. This matter essentially is of fact. No question of law and for the opinion and answer of this Court in abstract can arise. Eventually a factual conclusion would have to be recorded if there is compliance with this procedural rule or not. The rule requires service to be effected. Thus, service is mandated but its mode is set out in the sub-rules. By sub-rule (3) of Rule 68 it is stated that when service is made by post, the service shall be deemed to be effected by properly addressing or preparing the order or notice and posting it by registered post with acknowledgement due, and unless the contrary is proved, the service shall be deemed to have been effected at the time at which the notice or order would be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was sufficient and adequate notice and the sole proprietor had an occasion to appear and object to the stand of the Department on merit, so also by raising other legal contentions, then, the conclusion is inevitable that there is no defect or deficiency as far as this service is concerned. There is a factual finding recorded that Rule 68(1) has been complied with. To our mind, therefore, such a conclusion in the backdrop of the peculiar facts and circumstances raises no question of law. There was nothing that required any answer and opinion by this Court. A purely factual finding and which, to our mind, would suffice enables the Tribunal to render a complete decision on the appeal. In other words, the other points in the appeal could have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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