1998 (4) TMI 504 - HC - VAT and Sales Tax

Summary

Issues Involved:

1. Validity of notice service under section 21 of the U.P. Sales Tax Act.
2. Procedural requirements for substituted service by affixation.
3. Compliance with Rule 77 of the U.P. Sales Tax Rules, 1948.
4. Jurisdiction and procedural correctness of the reassessment order.

Issue-wise Detailed Analysis:

1. Validity of notice service under section 21 of the U.P. Sales Tax Act:

The primary issue revolved around whether the notice under section 21 was served validly. The assessee contested that the service by affixation was improper. The court highlighted that the service of notice is not merely procedural but a condition precedent for reassessment. The Full Bench in Laxmi Narain Anand Prakash v. Commissioner of Sales Tax emphasized that mere issuance of notice is insufficient; it must be validly served. If the notice is invalid or not served, the proceedings and the consequential order under section 21 are void.

2. Procedural requirements for substituted service by affixation:

The court discussed the procedural requirements for substituted service under Rule 77. Service by affixation is considered the weakest mode and should be used only if other modes are impracticable. The authority must form an objective opinion that service by other modes is not practicable. The court cited Gopal Das Uttam Chand v. Sales Tax Officer, Dehra Dun, which stated that the Sales Tax Officer must apply his mind to the facts before ordering affixation and cannot delegate this discretion to the process-server.

3. Compliance with Rule 77 of the U.P. Sales Tax Rules, 1948:

Rule 77 outlines the modes of service: personal service, leaving a copy at the last known place of business or residence, sending by registered post, and affixation. The court noted that the assessing authority attempted personal service and registered post, which were unsuccessful. The process-server's reports indicated failed attempts at personal service. The court found that the assessing authority had applied its mind and formed an opinion that other modes were impracticable, justifying the use of affixation.

4. Jurisdiction and procedural correctness of the reassessment order:

The court examined whether the reassessment proceedings were initiated correctly. The Tribunal initially found the service by affixation invalid due to the non-service at the residential address of the partners. However, the High Court, in a previous revision, directed the Tribunal to reconsider the case, emphasizing the proper interpretation of Rule 77 and the law laid down in Bipin Bihari Lal Gupta v. Sales Tax Officer. Upon reconsideration, the Tribunal upheld the service by affixation and found no grounds for interference with the assessed turnover.

Conclusion:

The court concluded that the service by affixation was valid as the assessing authority had exhausted other modes and formed an opinion on their impracticability. The reassessment order was procedurally correct, and the Tribunal's decision was upheld. The revision was dismissed, and the stay order was discharged. The judgment emphasized the importance of following procedural requirements for notice service and validated the reassessment proceedings under the U.P. Sales Tax Act.