2009 (8) TMI 1084 - HC - VAT and Sales Tax

Whether there has been proper service of the revised assessment order on the petitioner? Held that - The order has not been served in the manner required under the Tamil Nadu General Sales Tax Act and Rules framed thereunder. In that view of the matter the impugned order dated January 21 2008 is set aside and the date of receipt of the order shall be taken as June 29 2007 and the Appellate Assistant Commissioner is directed to take the appeal filed by the petitioner on July 11 2007 on its file and decide the same on merits and in accordance with law within a period of eights weeks from the date of receipt of a copy of this order. The learned counsel for the petitioner would also submit that the petitioner would co-operate with the appeal proceedings.

Summary

Issues:
Challenge to rejection of appeal as time-barred due to late filing.

Analysis:
The petitioner, a trader in waste cotton, challenged the rejection of their appeal by the first respondent as time-barred. The petitioner argued that the revised assessment order was not served on them or any related person, thus the appeal filed after receiving the certified copy should not be considered time-barred. The Department contended that the order was served on the wife of the petitioner's brother, and hence, the appeal filed beyond the statutory period was not maintainable. The key question was whether there was proper service of the revised assessment order on the petitioner.

The relevant provision under the Tamil Nadu General Sales Tax Act, 1959, specified a 30-day period for filing an appeal from the date of service of the order. The Act allowed for the Appellate Assistant Commissioner to admit appeals filed after the initial 30-day period if sufficient cause for the delay was demonstrated. The Act also required proof of payment of due tax for certain types of orders. The period of limitation for filing an appeal was crucial, starting from the date of service of the order on the assessee.

The case delved into Rule 52 of the Tamil Nadu General Sales Tax Rules, 1959, which outlined methods for serving notices, including giving or tendering it to the dealer, sending it by registered post, or affixing it at the last known place of business or residence. The rule emphasized exhausting prescribed modes of service before resorting to affixure. The court noted that service on the brother's wife did not meet the criteria for service on an adult member of the family, especially in a Hindu family context.

The judgment highlighted the importance of procedural rules to ensure effective implementation of statutes, with interpretations favoring the assessee unless fraud was evident. It was concluded that the order had not been served as required by the Act and Rules. The court set aside the rejection of the appeal, directing the Appellate Assistant Commissioner to consider the appeal filed within the limitation period and decide it on merits within eight weeks. The petitioner's cooperation with the appeal proceedings was also assured.

In summary, the court allowed the writ petition, with no costs incurred, and closed the related motion. The judgment emphasized adherence to procedural rules for service of orders and upheld the petitioner's right to appeal within the statutory period, setting aside the rejection based on late filing.