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TMI Blog1990 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners have specifically averred in the writ application that at no point of time any notice or letter has been served on the petitioner-assessee at its registered address and reiterated the same in paragraph 10 of the writ application to the effect: That it may be placed on record that notices for assessment and/or notices from the office of the opposite parties 2 and 3 were never issued or served in the registered address of the petitioner s company. .... According to Mr. A.K. Ray, the learned counsel for the petitioners, under rule 12 of the Central Sales Tax (Orissa) Rules, 1957, the Commissioner is required to serve notice on the dealer requiring him on a date and at a place to be specified therein either to attend in person or to produce or cause to be produced there any evidence on which such dealer may rely in support of such return as provided in rule 12(2)(a) of the Rules, and under sub-rule (5) of rule 12, the notice shall be in form IV. Under rule 22 of the said Rules, the provisions of the Orissa Sales Tax Act, 1947 and the Rules made thereunder mutatis mutandis apply in respect of all procedural and other matters incidental to carrying out the purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of natural justice and the petitioners have not been prejudiced in any manner and, therefore, the impugned orders of assessment cannot be said to be without jurisdiction. In support of the aforesaid contention, the learned counsel places reliance on a Bench decision of this Court in the case of State of Orissa v. Sri Gurumurty Patra [1973] 31 STC 160. The learned senior standing counsel in support of his stand that notices were duly served has produced the records of the proceedings. 3.. In the premises, as aforesaid, the following questions arise for our consideration: (i) Whether service of notice on the dealer is condition precedent for exercise of jurisdiction under rule 12(2)(a) of the Central Sales Tax (Orissa) Rules, 1957? (ii) Even if there has been no service of notice and yet the dealer appears before the assessing officer and participates in the proceedings, will the order of assessment become invalid or without jurisdiction? (iii) Whether, in fact, in the present case, there has been any valid service of notice on the dealer or not? Before examining the aforesaid three questions, it would be appropriate to extract in extenso the relevant provisions. Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or as soon afterwards as may be, the Commissioner after hearing such evidence as the dealer may produce, and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer. Rule 84 of the Orissa Sales Tax Rules which provides for service of notice is extracted hereinbelow in extenso: (1) A notice or requisition under the Act or the Rules may be served on the person therein named either by registered post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (V of 1908). (2) Any such notice or requisition may, in the case of a firm or a Hindu Joint Family, be addressed to any partner of the firm or to the manager or any adult male member of the family, and in the case of any company, society, club or other association to the manager or the principal officer thereof. 4.. So far as the first question is concerned, the plain language of rule 12(2)(a) of the Central Sales Tax (Orissa) Rules read with sub-rule (5) thereof makes it explicitly clear that where the Commissioner is not satisfied with regard to the returns furnished by a dealer, then he shall serve on such dealer a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent High Courts and held that the notice under section 21 having been improperly served, the initiation of proceedings was without jurisdiction and it could not be validated by participation of the assessee in the proceedings. Their Lordships relied upon the decisions reported in [1967] 66 ITR 147 (SC) (Commissioner of Income-tax v. Thayaballi Mulla Jeevaji Kapasi), [1955] 27 ITR 54 (Bom) (Commissioner of Income-tax v. Ramsukh Motilal), [1956] 30 ITR 439 (Cal) (Das Co. v. Commissioner of Income-tax), [1965] 55 ITR 406 (Cal) (Sewalal Daga v. Commissioner of Income-tax) and several other authorities referred to in the said judgment. The decision on which the learned senior standing counsel places reliance [1973] 31 STC 160 (Orissa) (State of Orissa v. Sri Gurumurty Patra) interpreted section 12(5) of the Orissa Sales Tax Act, but the language of section 12(5) of the Orissa Sales Tax Act is something different from the language of rule 12(2) of the Central Sales Tax Orissa) Rules. Under section 12(5) of the Orissa Sales Tax Act, the dealer must have a reasonable opportunity of being heard and consequently this Court held that notice was not mandatory. But the language of rule 12(2) ..... 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