TMI Blog2022 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... t the power of the assessing authority through process server may not be misused - In the case in hand, all the authorities have just relied upon the report of the process server and failed to note that such report of the process server was required to be examined on oath. The said primary duty required by the assessing authority is missing. From perusal of the assessment order, it reveals that the first appellate order had only relied upon the report of process server, which is bad in view of rule 77 of the U.P. Value Added Tax Rules. Further, Tribunal, by its order dated 29.05.2014, being last Court of fact, has recorded a finding of fact in favour of the applicant that the notice served upon Mr. Naresh Agarwal was not proper, but still remanded the matter. By this, the Tribunal tried to give second inning to the Revenue. In other words, a thing cannot be done directly was permitted to be done indirectly - The affidavit is also of no help to the Department as, even assuming Naresh Agarwal was authorized on behalf of the Company, even though the Company was closed down on 06.11.2003. Once a stand clearly taken by the Department that there was refusal of service, then the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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/TRADE TAX REVISION No. - 181 of 2015 (1) Whether on the facts and circumstances of the case, the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 finally decided by this Court on 11.08.2011 and subsequently, correction order was passed on 15.09.2011; whereby, the number of revision was corrected. Copy of the dismissal order of the revision was served upon the assessing authority on 04.10.2011. It has been stated in the revision that dismissal of the revision on 11.08.2011, the limitation for passing the assessment order remained for five years and three days, i.e., upto 07.03.2012, after excluding the period of stay order for 7 years 6 days (during which period the interim order was in operation). The assessing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 served upon the assessing authority on 04.10.2011, which fact is undisputed. The assessing authority issued notice as contemplated under the Act and was served upon Naresh Agarwal (authorized representative), but after reading the same, he refused to accept the same and another notice was also issued, but the same was also met with the same fate. This fact is evident from the assessment order, the relevant part of which is quoted below:- 14. The Assessing Authority after noticing the above fact, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or cause him to be so examined by another authority, touching his proceedings and may make such further inquiry in the manner as it thinks fit and shall either declare that the notice, order or summons has been duly served on order such service as it thinks fit. 21. Bare perusal of the aforesaid provisions, it is evidently clear that if the noticee refuses to accept notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Apex Court in the case of Mohinder Singh Gill Another Vs. the Chief Election Commissioner Others reported in 1978 AIR SC 851 has held as under:- The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so men ..... X X X X Extracts X X X X X X X X Extracts X X X X
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