2007 (10) TMI 590 - HC - VAT and Sales Tax

Method of service of notice - Held that - The notice has not been properly served and ex parte order has been passed without giving proper opportunity of hearing. Thus, the order of the Tribunal is liable to be set side and the matter is remanded back to the Tribunal to decide the appeals afresh after giving proper opportunity of hearing to the applicantdealer. In the result, revision is allowed in part. The order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh after giving proper opportunity of hearing to the applicant-dealer.

Summary

Issues: Proper service of notice under Rule 77 of the U.P. Sales Tax Rules, 1948; Validity of ex parte order due to improper notice service.

In this case, the revision under section 11 of the U.P. Trade Tax Act, 1948 was filed against the Tribunal's order relating to the assessment year 1982-83. The applicant's business had been closed in 1985, and the Tribunal passed an ex parte order due to the applicant's non-appearance on July 26, 2007. The applicant argued that they were not served any notice for that date and that the alleged service by affixation did not comply with Rule 77 of the U.P. Sales Tax Rules, 1948. The applicant contended that the notice should have been served personally or by registered post before resorting to affixation. The Tribunal's record indicated that the notice was served by affixation, but the process server's report did not comply with the requirements of Rule 77. The report lacked details such as the location of affixation and the identification witness's name and signature, as mandated by the rule.

The Court analyzed Rule 77 of the Rules, which requires personal or registered post service before resorting to affixation. The rule also specifies the necessary details to be included in the process server's report for proper service by affixation. Since the notice in this case was not sent personally or by registered post, and the process server's report did not meet the rule's requirements, the Court held that the notice was not properly served. Consequently, the ex parte order was deemed invalid as it was passed without affording the applicant a proper opportunity to be heard. The Court set aside the Tribunal's order and remanded the matter back to the Tribunal for a fresh decision after ensuring proper opportunity for the applicant-dealer to be heard.

In conclusion, the revision was allowed in part, the Tribunal's order was set aside, and the matter was remanded back for a fresh decision with proper hearing opportunity for the applicant-dealer. The applicant-dealer was directed to appear before the Tribunal by a specified date, with a clear instruction that no fresh notice would be issued. Failure to appear would result in the present order being vacated.