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TMI Blog1981 (4) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed a revision petition before the Additional Commissioner of Commercial Taxes, West Bengal. The Additional Commissioner of Commercial Taxes, West Bengal, by his order dated 28th February, 1970, rejected the revision petition and confirmed the order dated 27th July, 1966, of the Assistant Commissioner, Commercial Taxes. Thereupon the dealer filed a revision petition before the Board of Revenue, West Bengal, against the order dated 28th February, 1970, of the Additional Commissioner, Commercial Taxes, West Bengal, under section 20(3) of the Act. The dealer also filed a petition for condonation of delay in filing the revision petition dated 12th April, 1971, before the Board of Revenue. We will have occasion to refer in detail to the application filed as also the order passed in this connection. The Additional Member, Board of Revenue, West Bengal, who dealt with the case did not find any reasonable ground to condone the delay and by his order dated 17th August, 1971, rejected the revision petition on the ground that the revision petition filed before the Board of Revenue, West Bengal, was time-barred. There was an application under section 21 of the Act by the dealer for a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in form 26 about the disposal of the said revision cases. In reply thereto the learned Additional Commissioner of Commercial Taxes sent to the dealer on 16th January, 1971, an intimation in form 26 dated 11th January, 1971, about the disposal of revision case No. 513 of 1966-67 only in respect of the assessment for the 4 quarters ending 31st December, 1960, under the Central Sales Tax Act, 1956. About the disposal of the remaining revision case No. 512 of 1966-67 in respect of the assessment for the 4 quarters ending 31st December, 1960, under the Bengal Finance (Sales Tax) Act, 1941, the learned Additional Commissioner of Commercial Taxes addressed the dealer a letter dated 11th January, 1971, which was received on 11th January, 1971, stating most surprisingly that he had already served on the dealer an intimation in form 26 on 29th April, 1970, about the disposal of the said revision case by affixation at the said totally closed place of business of the dealer at 15, India Exchange Place, Calcutta-1, on 11th May, 1970. It is also stated by the Additional Commissioner of Commercial Taxes that as the intimation in form 26 sent to 15, India Exchange Place, by registered post with A/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before the learned Additional Commissioner of Commercial Taxes in time and the Commercial Tax Officer ought to have been intimated of the difficulty of entering into the office at 15, India Exchange Place, by any employee of the firm, instead of waiting for about four and half months and sending another letter after about 10 months from the date of hearing. I do not therefore find any reasonable ground to condone the delay in submitting the revision petition." It is apparent that the fact that the registered office at 15, India Exchange Place, was closed down as alleged by the dealer was not controverted and the Additional Member, Board of Revenue, proceeded on that basis. The Additional Member, Board of Revenue, has stated that the dealer should have enquired of the result after the hearing of the case and it was negligent on his part to wait for four months and write a letter to the authorities about the disposal and then again write another letter after about 10 months. Therefore, there is no ground for condonation of delay and the application was rejected. We have, therefore, to consider whether the service of notice on the dealer on 11th May, 1970, was proper servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed since 1970 was accepted by the Additional Member, Board of Revenue, as recited in his order. Therefore, in our opinion, it is abundantly clear from the facts as found by the authorities below there is non-compliance of rule 84 and the service on 11th May, 1970, was not valid in law. The learned Advocate for the revenue, however, contended that whether there was valid service in law or not is primarily and essentially a question of fact. Therefore, according to him, when the authorities below have found that there was proper service, no question of law as such arose. He drew our attention to the observations of the Supreme Court in the case of Commissioner of Income-tax, West Bengal III v. Ramendra Nath Ghosh[1971] 82 I.T.R. 888 (S.C.)., where the Supreme Court was dealing with an appeal from the decision of the Calcutta High Court. The Calcutta High Court in that case was concerned with whether notice under section 33B of the Indian Income-tax Act, 1922, had been served by the Commissioner before passing an order. The Division Bench of the Calcutta High Court, hearing an appeal from the decision of the learned single Judge, heard the matter on evidence and was satisfied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the question was an appeal against a writ decision of a learned single Judge whether there was valid service under section 34 for reopening under the Indian Income-tax Act, 1922. We had examined the affidavit of the processserver, the records of the income-tax department and it was found that there was due compliance of Order 5, rule 17, of the Code of Civil Procedure. In that context, we had observed that whether in a particular case there were proper and substantial efforts or whether reasonable efforts had been made to serve or find the person to be served with a notice before service by affixation is effected depended on the facts and circumstances of the case. In that case, we had found that there were substantial facts upon which the Income-tax Officer had directed the service to be effected by affixation. But, in this case, as we have mentioned before, these facts were not adverted to. The learned Advocate for the revenue sought to urge that the dealer in the instant case was trying to shift the liability of finding out the dealer on the authorities. That is not the question. The question is whether an order was passed upon valid service made and conditions required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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