1970 (8) TMI 73 - HC - VAT and Sales Tax

Summary

Issues:
1. Whether service by registered post under the endorsement 'refused' raises a rebuttable or conclusive presumption?
2. Whether the presumption of service was sufficiently rebutted by the assessee in this case?

Analysis:
The judgment delivered by the Allahabad High Court addressed the issue of service by registered post under the endorsement 'refused' and the rebuttable nature of the presumption arising from such service. The case involved an ex parte assessment order passed against the assessee, who later filed an appeal challenging the order. The appeal was deemed time-barred as it was filed after the prescribed limitation period. The department claimed that the assessment order and notice of demand were sent to the assessee via registered post, which was returned with the endorsement 'refused'. The assessee denied refusing the service and filed an affidavit along with an application under section 5 of the Limitation Act. The Assistant Commissioner rejected the appeal as time-barred, but the Judge (Revisions) took a different view, stating that the presumption of service raised by the refusal was rebuttable.

Regarding the first issue, the High Court determined that the presumption of service under the endorsement 'refused' was rebuttable, as there was no statutory provision making it conclusive. The Judge (Revisions) correctly held that the presumption could be rebutted, and the High Court affirmed this view. Moving to the second issue, the court emphasized that the question of whether the presumption was rebutted in this case was a matter of fact. The assessee had submitted an affidavit stating that the envelope containing the assessment order was never tendered to him, and the department failed to provide evidence to discredit this claim. The Judge (Revisions) accepted the assessee's affidavit, and the High Court found no legal error in this decision. Therefore, the court concluded that the presumption of service had indeed been sufficiently rebutted in this instance.

In conclusion, the High Court ruled in favor of the assessee on both issues, affirming the rebuttable nature of the presumption of service under the 'refused' endorsement and finding that the presumption was adequately rebutted by the assessee in this case. The reference was answered in favor of the assessee, and no costs were awarded due to the absence of representation from either party.