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TMI Blog1998 (4) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover. Acting on the said information, the assessing authority took proceedings under section 21 of the Act with a view to bring to tax the turnover which had escaped assessment. It may be pointed out that as a result of the reconstitution of the assessee-firm, it stood dissolved with effect from May 31, 1972 and a new partnership-firm started functioning at the place of business where the erstwhile firm carried on its business earlier. The notice under section 21 for reassessment for the year in question was issued in the name of the erstwhile firm at the address where it carried on its business before its discontinuance. The notice under section 21 was issued for the first time on March 22, 1976 fixing March 24, 1976 for appearance as a date for hearing. However, this notice was returned unserved by the process-server with his report that he had met the manager of the firm who refused to accept the notice after going through its contents by saying that the notice would be received by the owners of the firm. Another notice was sent on March 24, 1976 fixing March 26, 1976 and it was also returned unserved by the process-server with a report that he had met an employee of the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee-firm consisted of two partners and this firm was dissolved on May 31, 1972 and another firm at this place was started on June 1, 1972. The alleged service was effected on March 29, 1976 when the old firm had been dissolved and it appears that the fact of the dissolution was in the knowledge of the department. The notice under section 21 was sent at the address where the old firm did not exist and a new firm was conducting business. No notice was sent at the residential address of the partners of the firm. The address of the partners of the firm was available on the assessment file. The process-server has taken the notice at the place of the new firm and it appears that the employees of the reconstituted new firm had refused the notice. The cross-examination of the process-server also makes it clear that the names of the persons who had refused to accept the notice was not known. No evidence of affixation is available. It is clear that affixation was made on the firm at a place where the firm did not exist. No notice was sent at the residential address which was available in the assessment file. In these circumstances, we are of the opinion that the service of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 973 UPTC 53. 6.. When the Tribunal took up the matter again in pursuance of the order passed by this Court, it dismissed both the cross-appeals by a common order, which is the subject-matter of this revision. The Tribunal held that the service of notice under section 21 by affixation was valid. The process-server had affixed the notice in terms of the directions issued by the assessing authority and there was nothing wrong with it. As regards the quantum of turnover, the Tribunal found no ground for interference with the order of the first appellate authority. Feeling still aggrieved, the assessee has preferred this revision against the order of the Tribunal as stated earlier. 7.. Heard learned counsel for the parties. 8.. At the outset, it may be stated that although the order under revision has been challenged on diverse grounds in the memorandum of revision, but during the course of arguments the learned counsel for the revisionist-assessee pressed for only one ground that service effected by affixation was not in accordance with law because the assessing authority could not have issued instruction beforehand to the process-server to effect affixation without reporting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion inserted was to the following effect: Explanation.-For the purposes of this rule, the expression last known place of business in relation to a discontinued business includes the last known place of business of the dealer where the business was carried on before its discontinuance. 12.. Now the above provisions prescribe service of notice, (a) by giving a copy to the dealer or manager, etc., i.e., personal service; (b) by leaving it at the last known place of the business or residence or to some adult male members of the dealer s family; (c) by registered post if the address was known and, the last mode is by affixation under clause (d) of rule 77 which enacts that if none of the modes aforesaid is practicable, by affixing a copy thereof in some conspicuous place at the last known place of business or residence of the dealer . Service by affixation is the substituted mode of service and has been held as weakest mode of service. It could be resorted to in exceptional circumstances. The expression if none of the modes aforesaid is practicable in clause (d) is significant and clearly suggests that the officer or authority before resorting to affixation has to form an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merated in that rule as may appear appropriate to him. The choice of the mode cannot be left to the discretion of the process-server. At any rate the question as to whether the modes enumerated in clauses (a) to (c) are practicable or not is a question which can be decided by the Sales Tax Officer alone after examining the facts obtaining in a particular case. He cannot exercise his judgment before the facts are brought to his notice. In other words, he cannot anticipate the facts and form an opinion beforehand so as to give instructions to the process-server to effect service under clause (d) without reporting the matter to him. In the instant case it was not open to the Sales Tax Officer to have instructed the process-server to serve the notice by affixation in case his attempt to effect personal service failed. 14.. To the similar effect is the decision of another Division Bench of this Court in the case of Bipin Bihari Lal Gupta v. Sales Tax Officer 1973 UPTC 53. 15.. Now, before proceeding further, it may also be mentioned that in the instant case a notice under section 21 of the Act was also sent under registered cover. It is not disputed that as the law then stood a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by other modes set out in clauses (a) to (c) of sub-rule (1) of rule 77 of the Rules. The choice of mode of service was left at the discretion of the process-server without requiring him to report the outcome of personal service which he was directed to attempt at first instance. 18.. In the instant case, substituted service was not resorted to without application of mind about the non-practicability of serving the notice by other modes. When the assessing authority directed service by substitution it had before it two earlier reports of the process-server that personal service of the notice was returned unserved on March 22, 1976 and March 24, 1976. Service by registered post was also uncertain for want of complete address of the partners. This position is not in dispute in view of the earlier pronouncement of this Court when the matter was remanded to the Sales Tax Tribunal for fresh consideration in the light of the directions given in the order dated April 6, 1989 passed by this Court. The limitation for service of notice was expiring shortly on March 31, 1976 when the substituted service was ordered. In the background of these facts, the assessing authority had hardly an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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