2009 (9) TMI 894 - HC - VAT and Sales Tax

No valid service of order of assessment - Held that - In view of the finding to the effect that there is no endorsement by the person from the respondent Department, it has to be noted that there is no proper service of the order of assessment on the petitionerCompany in terms of rule 52(1) of the TNGST Rules. In that view, it has to be taken that the order of assessment was served on the petitionercompany only on November 18, 2004. In such circumstances, the impugned order has to be held as bad in law and is accordingly set aside. As it is a fit case where the delay has to be condoned and the matter should be directed to be heard on merits. In view of the above finding, the impugned order is set aside, the delay in filing the appeal before the first respondent stands condoned and the first respondent is directed to issue notice to the petitioner and hear the appeal and decide the same on merits and in accordance with law.

Summary

Issues:
Service of assessment order on the petitioner, condonation of delay in filing appeal, validity of rejection of appeal, proper service under TNGST Rules.

Analysis:
The primary issue in this case pertains to the service of the assessment order on the petitioner, which is crucial for determining the timeline for filing an appeal. The petitioner contended that the order was served late, beyond the permissible period for filing an appeal. The court examined the acknowledgment of service, noting the absence of crucial details like the name and designation of the person who received the order, as well as the lack of the petitioner-company's seal. The court emphasized the requirement of proper service under rule 52(1) of the TNGST Rules, which mandates an endorsement by the delivering person as proof of service.

The court found that the absence of such endorsement raised doubts about the validity of service, especially considering the distance between the respondent's office and the petitioner's estate office. Consequently, the court held that the assessment order was served late, contradicting the respondent's claim. As a result, the impugned order rejecting the appeal was deemed legally flawed and set aside.

Regarding the condonation of delay in filing the appeal, the court acknowledged the petitioner's efforts in pursuing the matter despite procedural setbacks. While typically a case would be remanded for fresh consideration on delay condonation, the court noted the prolonged delay in processing the appeal papers by the first respondent. In light of this delay and the petitioner's persistent attempts to address the issue, the court exercised discretion to condone the delay and directed the first respondent to hear the appeal on its merits.

In conclusion, the court allowed the writ petition, setting aside the impugned order and directing a fresh hearing of the appeal with due notice to the petitioner. The court emphasized adherence to legal procedures and principles of natural justice in deciding the appeal. The judgment highlighted the importance of proper service and timely consideration of appeals in upholding the rights of the assessee under the TNGST Rules.