2023 (3) TMI 1027 - HC - VAT and Sales Tax

Service of SCN - Whether notice N-2 was properly served to the appellant as per the provisions of order V of CPC read with rule 79 of HVAT Act? - service of notice N2 is valid if served to an unknown and unnamed person, who is neither the addressee nor his regular employee and nor a person authorized by the addressee, or not? - department is right in sending subsequent notices without mentioning or referring to Notice N-2, which had already been allegedly served and without referring to the fact that none had appeared in response to the notice N2, or not? HELD THAT - The assessing officer vide order dated 29.03.2013 had framed assessment under Section 15(3) of HVAT Act as well as CST Act to the tune of Rs.34,23,021/- by observing that the appellant-assessee was illegally claiming exemption from HVAT and CST by showing transactions between its sale offices and itself as branch transfers though they were interstate sales and thereby demand of tax was evaded. Against this order, the appellant had filed appeal before JETC (A) on the grounds that no notice for rejection of branch transfer and converting the same into interstate sales was ever given and further that the assessing authority had erred in treating branch transfer as interstate sales. The JETC (A) had rejected the plea that notice in form N-2 was not issued to the assessee. However, with regard to the question that the transaction as made by the appellant was branch transfer or interstate sales, the matter had been remitted to the assessing authority with direction to confront all the material which he was relying upon to the appellant. The assessment order was passed on 29.03.2013. In such circumstances, there cannot be stated to be any force in the argument as raised by the appellant that notice VAT N-2 had not been validly served upon it. The Tribunal had also taken note of the fact that the above named Sh. Rajeev Kumar had subsequently furnished an affidavit on 17.04.2018 swearing therein that his signatures on statement dated 01.06.2017 was obtained on blank papers. The Tribunal had rejected this plea and in our opinion rightly so in view of the fact that the affidavit so sworn by Sh. Rajiv Kumar was dated 17.04.2018 i.e. only on the day when the appeal by the Tribunal had been decided. The appellant being employer of the above said Sh. Rajeev Kumar can obviously be presumed to be in a dominating position to procure such affidavit. As such, we are inclined to hold that the Tribunal had rightly observed that the statement dated 01.06.2017 was actually made by Sh. Rajeev Kumar before the officers of department affirming that notice VAT N-2 was served upon the appellant through its gatekeeper. The appellant had failed to bring any such material on record to show that the service of notice VAT N-2 was not validly effected upon it. Thus, it is held that no ground has been made out for accepting the plea of the appellant that the notice VAT N-2 was not served upon it in accordance with law and, therefore, the contention raised by the appellant that in the subsequent notices, no reference as to service of previous notice VAT N-2 had been mentioned is also of no consequence - no substantial question of law has arisen in favour of the appellant. Appeal dismissed.

Summary

Issues:
- Validity of notice N-2 service
- Compliance with Rule 79 of HVAT Act
- Proof of notice receipt by appellant
- Arguments based on previous legal cases
- Decision of the Tribunal

Validity of Notice N-2 Service:
The judgment dealt with two appeals against a common order passed by the Haryana Tax Tribunal regarding the service of notice N-2 for initiating assessment proceedings. The appellant argued that the notice was not served upon them as per the law, citing non-compliance with Rule 79 of the HVAT Act. They contended that no notice was received by any authorized person, and subsequent notices did not refer to the initial notice. The appellant relied on a legal case where notice served to a friend was deemed invalid. However, the respondent argued that the notice was validly served through the gatekeeper, as evidenced by the accountant's statement before the Deputy Excise and Taxation Commissioner. The Tribunal found that the notice was validly served, rejecting the appellant's arguments and distinguishing the cited legal case. Consequently, the Tribunal dismissed the appeals.

Compliance with Rule 79 of HVAT Act:
The appellant claimed that Rule 79 of the HVAT Act was not complied with regarding the service of notice N-2. They argued that documents signed by an unknown person regarding notice receipt were not sufficient proof. The respondent countered by stating that the gatekeeper's receipt of the notice was valid under Rule 79. The Tribunal considered the evidence, including the accountant's statement and appearance before the assessing officer, to conclude that the notice was validly served, in compliance with Rule 79.

Proof of Notice Receipt by Appellant:
The appellant contended that the notice was not received by any authorized person, emphasizing that subsequent notices did not reference the initial notice. They also highlighted an affidavit from the accountant stating that his signatures on the statement were obtained on blank papers. However, the Tribunal rejected this argument, considering the timing of the affidavit and the circumstances surrounding it. The Tribunal found that the notice was served through the gatekeeper, who was considered a regular employee, and thus, the appellant failed to prove that the notice was not validly served.

Arguments Based on Previous Legal Cases:
The appellant relied on a legal case where notice served to a friend was deemed invalid to support their argument regarding notice service. However, the Tribunal distinguished this case from the current situation, where evidence showed that the notice was served through the gatekeeper, a person regularly employed by the appellant. The Tribunal concluded that the cited legal case did not apply to the present circumstances, supporting the validity of the notice service.

Decision of the Tribunal:
After hearing arguments from both parties, the Tribunal deliberated on the contentions raised. It noted that the assessing officer had framed an assessment against the appellant, who then appealed to the Joint Excise & Taxation Commissioner. The matter was remitted back to the assessing authority for further examination. The Tribunal found that the notice N-2 was validly served, considering the evidence presented, and rejected the appellant's claims of invalid service. Consequently, the Tribunal dismissed the appeals, stating that no substantial question of law favored the appellant.