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TMI Blog2022 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was correct to hold that the assessment order dated 02.04.2012 for the A.Y. 2002-03 (UP) is not time barred? (2) Whether the Tribunal was correct to hold that the notice for assessment is rightly treated to have been served on the applicant since Sri Naresh Agarwal after reading it returned to process server with request to serve the owner as the applicant unit having closed business on 06.11.2003 for A.Y. 2003-04? (3) Whether the Tribunal rightly affirmed the service of notice as sufficient, contrary to Sub Rule (3) of the Rule 77 of the Rules, on the facts and circumstances of the case? (4) Whether the Tribunal while passing the order under Section 22 of the Act dated 27.02.2015 was correct to review the Tribunal's order dated 29.05.2014 passed in Second Appeal No. 38 of 2014 (2002-03 UP) by holding that service of notice on Naresh Agarwal was sufficient, contrary to finding that ex-parte proceedings on the basis of service of notice on Naresh Agarwal was not valid? (5) Whether the Tribunal was correct to hold that the assessment order dated 02.04.2012 passed by the Assessing Officer is not time barred as per section 21(6) of the U.P. Trade Tax Act? SALES/TR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for grant of exemption/eligibility certificate on the basis of notification issued to the units undertaken expansion. 6. By order dated 30.01.2003, exemption was granted only upto 100% of the additional fixed capital investment instead of 150% as claimed by the applicant. Not being satisfied, the applicant preferred an appeal before the Full Bench of the Trade Tax Tribunal for grant of partial benefits by DLC. The Tribunal, by the order, has partly allowed the appeal, against which two revisions were filed, one by the applicant at Allahabad bearing Revision No. 779 of 2003 and another by CST, U.P. Lucknow in the Lucknow Bench of this Court. On the application of the applicant, Trade Tax Revision at Lucknow was transferred to Allahabad and was registered as TTR No. 1517 of 2003. 7. The revision filed by the applicant was entertained by this Court and an interim order was granted on 28.09.2004; whereby, the assessment proceedings for the assessment year 2002-03, both U.P. Trade Tax Act and Central Sales Tax Act, were statyed. 8. The limitation for completing the assessment proceeding was upto 31.03.2005. Revision No. 779 of 2003, along with Revision No. 1517 of 2003, was finall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Per contra, learned Standing Counsel submits that after the stay order was vacated by this Court on 11.08.2011, notices were issued and served upon the applicant in accordance with law. More precisely, under rule 77 of the U.P. Trade Tax Rules, 2008 (hereinafter referred to as,'the Rules') read with section 72(g) of the VAT Act. He further submits that Naresh Agarwal, who was the authorized representative of the revisionist, after reading the notice, has specifically refused to accept the notice and directed the same to be served upon the owner and therefore, the service of notice was proper and the proceedings initiated against the dealer were in accordance with law. He prays for dismissal of the revisions. 12. Heard learned counsel for the parties and perused the records. 13. Admittedly, the interim order was passed on 08.09.2004 by this court in TTR No. 779 of 2003; whereby, both the assessment proceedings for the assessment year 2003-04 under the U.P. Central Sales Tax Act were stayed. The said interim order got vacated by this Court on dismissal of the revisions on 11.08.2011 and the order was corrected on 07.09.2011. Copy of the stay vacation order was duly serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities below have over looked intentionally the provisions of Rule 77(3) of the Rules and rule 72(g), which are quoted below:- "Rule 77:- Method of service of notice is prescribed as under:- in case of refusal: (1) .... (2) .... (3) Where the person to whom the notice, summons or order is tendered as aforesaid refuses to accept the same or refuses to sign the acknowledgement after its acceptance the process server, peon or employee shall submit a report to the concerned Authority stating facts about such refusal and the name and address of the person, if any, present at the time of such refusal. Such report shall be verified on oath by the process erver, peon or employee. The concerned Authority may, having regard to the facts and circumstances and after making such further inquiry in the matter, if any, as it thinks fit, consider such refusal to be proof of service. Rule 72: The process of examination of process server:- (g) Where a notice, order or summons is returned under clause (e), the authority shall, if return under that rule has not been verified by the affidavit of the process server and may, if it has been so verified, examine the process server on oath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. In this case, the report of the process server was not verified as required by rule 77(3). It is because of this defect that the proceedings against the assessee were set aside by the Assistant Commissioner (Judicial) as also by the Tribunal. The provisions of rule 77(3) in regard to the manner in which the fact that the assessee has refused to accept the service of notice, are mandatory. As the provision of rule 77(3) were not complied with, the Tribunal was justified in dismissing the appeal and setting aside the proceedings against the assessee." 25. Further, the learned Standing Counsel has tried to improve his case by relying upon the report submitted before the Tribunal through DCSLR by submitting that there was a proper service of notice as Naresh Agarwal was authorized representative, who, after reading the notice, refused to accept the same. The same should have been treated as a proper service. The said report, relied upon by the Tribunal, is vitiated from a bare reading of the assessment order, where the assessing authority proceeded on the ground that time is going to be lapsed soon and therefore, he proceeded to pass ex parte order. 26. Further, the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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