2002 (11) TMI 750 - HC - VAT and Sales Tax

Summary

Issues:
1. Dismissal of petitioner's applications under section 45(1) of the Delhi Sales Tax Act, 1975 as barred by limitation.
2. Communication and receipt of orders dated July 2, 1996 and November 5, 1996 by the petitioner.
3. Presumption of service through registered post and burden of proof.
4. Delay and latches in the writ petition.

Issue 1:
The petitioner's applications under section 45(1) of the Delhi Sales Tax Act, 1975 were dismissed by the Appellate Tribunal on the ground of limitation. The Tribunal observed that it did not have powers to condone the delay within 30 days. The High Court found substance in the petitioner's submissions regarding the mode of service as per rule 46 and ruled that the requirement of the Rules had not been complied with while delivering the copy of the order to the petitioner. The Court allowed the writ petition, condoned the delay, and remitted the case back to the Tribunal for deciding the petitioner's applications for reference on merits.

Issue 2:
The dispute arose regarding the communication and receipt of orders dated July 2, 1996, and November 5, 1996 by the petitioner. The petitioner claimed that the orders were not communicated to them until June 24, 1997. The respondents contended that the orders were dispatched and received by the petitioner within the stipulated time. The High Court analyzed the evidence, including the denial of receipt by the petitioner and discrepancies in the delivery process. The Court found in favor of the petitioner, emphasizing the burden on the department to prove proper service, and ruled in favor of the petitioner.

Issue 3:
Regarding the presumption of service through registered post and burden of proof, the department relied on rule 46(4) and section 27 of the General Clauses Act to argue that a presumption of service is raised once communication is sent by registered post. However, the Court held that this presumption is rebuttable, and the burden of proof lies with the department. The petitioner's denial of receipt and lack of evidence from the department regarding service led the Court to rule in favor of the petitioner.

Issue 4:
The respondent raised the plea of delay and latches in the writ petition. However, the Court considered the circumstances, including the delayed receipt of orders by the petitioner, and decided not to dismiss the petition on technical grounds. The Court allowed the writ petition, condoned the delay, and directed the Tribunal to decide the reference applications on merits. The recovery proceedings were stayed pending the Tribunal's decision on the reference applications.