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TMI Blog2004 (7) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... e metal elsewhere in the year 1991, but he did not obtain any registration under the Tamil Nadu General Sales Tax Act, 1959 since his turnover was less than Rs. 1 lakh. 3.. A case study has been conducted at his place of business on April 28, 1992 by the Junior Research Officer (CT), Vellore, and the Statistical Inspector (CT), Vellore. On the basis of the case study, after the issue of notice, the petitioner was assessed to tax, for the assessment years 1991-92 and 1992-93, imposing penalty also. As per the assessment order, the petitioner has not paid the sales tax, resulting issue of form I distraint notice dated February 26, 2001, under the Revenue Recovery Act, demanding the tax and penalty for the assessment years 1991-92 and 1992-93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rival contentions of the parties, as well as considering the effect of rule 52 of the Rules, has come to the conclusion that the petitioner had filed the appeals, before the second respondent only after five years and the non-entertaining of the appeal by the second respondent, as time barred is based on facts, assigning valid reasons. In this view of the matter, the Tribunal refused to set aside the order of the Appellate Assistant Commissioner, which is under challenge in these two writ petitions. 7.. Heard the learned counsel for the petitioner, Mr. S. Ramanathan and the learned Special Government Pleader (Taxes). 8.. The point for determination is whether the assessment orders were properly served, as contemplated under rule 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner submits that despite the fact, the assessing officer knew the address of the petitioner and the fact that he had closed his business, which was intimated to him, failed to serve the assessment orders, as contemplated under rule 52 and therefore, the assessee was unable to file appeals in time, questioning the assessment orders. It is the further submission of the learned counsel, that the assessee is entitled to file appeals, within the prescribed period, from the date of obtaining certified copies, since no assessment orders were served upon him. 12.. Per contra, opposing the above contentions, the learned Special Government Pleader (Taxes) would contend that the orders were served upon the petitioner, as contemplated under rule 52( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address of the assessee, viz., 113, Mettu Edavanpatti, Adunkkanparai Post, Vellore Taluk. For the pre-assessment notice, when the assessee had filed an objection, he informed that he had closed the business and transferred the same to third party. Whether it is factually correct or not, when the matter was informed to the assessing authority, the assessing authority ought to have sent the assessment order, under the Act to his last known place of residence, since it is the definite case of the assessee that he had closed his business, thereby informing the authorities concerned, that he ceased to have any business interest in the premises, viz., 54/1 Mettu Edayanpatti, Adunkkanparai Post, Vellore Taluk. It is not the case of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. If that objection had not been available with the assessing officer, or the petitioner had not informed that he had closed the business, then the assessing officer would be justified in saying that the assessment orders were served, by affixture at his last known place of business. The place of business owned by the petitioner was disowned and informed. The residential address is very well available with the assessing officer. Therefore, in the ordinary course to give an opportunity to the assessee to prefer an appeal, the assessment orders should have been sent to the residence of the assessee and on his failure to receive the same, it should have been served by affixture, at his last known place of residence, not in the place of busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the time from the date of receipt of copy of the assessment orders. 18.. The Appellate Assistant Commissioner, as well as the Tribunal, without properly considering the correctness and the validity of service of the orders and the fact that the assessee had transferred the place of business to third party, in our opinion committed an error, as if the assessment orders were served by affixture, and therefore, the appeals filed beyond the period prescribed, from the date of affixture are barred by time, which are liable to be set aside. For the foregoing reasons, both the petitions are allowed, setting aside the orders of the Tribunal as well as the Appellate Assistant Commissioner. The Appellate Assistant Commissioner is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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