2017 (4) TMI 194 - HC - VAT and Sales Tax

Validity of revision order - service of notice as per the said provisions in Rule 68 - notice of reassessment was sent by Registered Post Acknowledgement Due. The addressee refused to accept it. There is an endorsement on the packet that the addressee has refused to accept the service. When the packet containing the notice was returned with this remark, the Deputy Commissioner proceeded on the footing that the sole proprietor is duly served. Though this was the factual position, yet this notice was also pasted on a conspicuous part of the sole proprietor s business place. It is in these circumstances that on 27.1.2003 the Deputy Commissioner passed an ex parte revisional order - Held that - in the backdrop of the factual position which emerges from the record of this reference, can it be said that there was no service. This matter essentially is of fact. No question of law and for the opinion and answer of this Court in abstract can arise. Eventually a factual conclusion would have to be recorded if there is compliance with this procedural rule or not. The rule requires service to be effected. Thus, service is mandated but its mode is set out in the sub-rules. Whether there is proof of service or not would, therefore, necessarily depend on the facts and circumstances in each case. The reference is returned because there was no question of law arising for decision or opinion and answer of this Court - appeal disposed off.

Summary

Issues:
1. Interpretation of Rule 68 of the Bombay Sales Tax Rules, 1959 regarding service of notices.
2. Validity of the revision proceedings and order due to alleged improper service of notice.
3. Compliance with procedural rules for service of notice under Rule 68.
4. Determining if the notice was properly served on the appellant.

Analysis:
1. The Tribunal referred questions regarding the interpretation of Rule 68 of the Bombay Sales Tax Rules, 1959, questioning the justification of the revision proceedings due to alleged improper service of notice. The Court highlighted the limited controversy, focusing on the appellant's assessment under the Bombay Sales Tax Act, 1959, and subsequent appeal and reassessment orders. The appellant's appeal against the reassessment order was allowed by the Appellate Assistant Commissioner, leading to the issuance of a revision notice by the Deputy Commissioner to set aside the appellate order and restore the reassessment order.

2. The Court examined the service of the revision notice under Rule 68, emphasizing the procedural requirements for service of orders and notices. It was noted that the notice was sent by Registered Post Acknowledgement Due (R.P.A.D.), and although the appellant refused to accept the service, the notice was also pasted at the appellant's business place. The Deputy Commissioner passed an ex parte revisional order based on the refusal to accept the notice, leading to the appellant's appeal before the Tribunal.

3. The Court analyzed the compliance with Rule 68 for service of notices, specifically focusing on the mode of service and the deemed effect of service when sent by post. The Court emphasized that the service by post should be deemed effective if properly addressed and sent by registered post with acknowledgement due. In this case, the postal authorities returned the notice with remarks of refusal by the appellant, indicating valid service. The Court concluded that there was no need to resort to the proviso under Rule 68, as the service was deemed effective based on the postal remark.

4. The Court determined that the factual finding regarding compliance with Rule 68(1) was sufficient, and there was no legal question requiring the Court's opinion. The Court emphasized that the Tribunal should have considered the appeal on its merits instead of solely focusing on the technical aspect of notice service. The Court returned the reference, stating that there was no legal question for the Court's decision, and the Tribunal should proceed to decide the appeal on the remaining points expeditiously.

In conclusion, the Court's analysis focused on the interpretation and application of Rule 68 of the Bombay Sales Tax Rules, 1959, regarding the service of notices, highlighting the importance of factual findings and compliance with procedural rules in legal proceedings.