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TMI Blog2005 (2) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... siness under section 39 of the West Bengal Sales Tax Act, 1994. He got registration certificate issued for the purpose of his business and he submitted returns regularly showing the turnover of his business. A notice to show cause was issued upon the petitioner asking him to appear on July 21, 1999 and show cause as to why the registration certificate should not be cancelled. The petitioner prayed for adjournment but since then nothing was informed to the petitioner and registration certificate was cancelled. The point came up for consideration as to whether the order of cancellation of registration certificate is legal, proper and valid. A separate application is filed on behalf of the petitioner being registered RN-356 of 2001 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have enquired about the fate of his prayer for adjournment. The learned lawyer for the respondents, relying on the case reported in Commissioner of Income-tax v. Laxminarain Badridas [1937] 5 ITR 170 (PC) and Nagendra Nath Shah v. State of West Bengal [1957] 8 STC 641 (Cal), submitted that it was not their duty to inform the date of adjournment to the parties in each and every case. The responsibility also lies upon the petitioner to get the next hearing date from the office of the respondents. It is correct to say that the petitioner must be alert to protect his right and should have made attempt to know the next date of hearing. But primary duty certainly lies upon the authority to inform the date of hearing either in presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lack of seriousness or sincerity of the petitioner to take part in the proceedings initiated against him. The respondents should have followed the provisions of the rule 278, which states, as follows: "Service of notice. (1) Any notice which is issued under the provisions of the Act or the rules made thereunder may be served on a dealer, casual trader, or person by any of the following methods, namely: (a) personally upon the addressee, if present, (b) by messenger including a courier, (c) by registered post: Provided that if the authority issuing the notice is satisfied that an attempt has been made to serve a notice by any of the above mentioned methods and the dealer is avoiding service or that for any other reason the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, it cannot be held to be a valid ground for cancellation of registration certificate. For the reasons discussed above, we, therefore, hold that the order of cancellation of registration certificate depriving the petitioner from giving him the opportunity of being heard is illegal. The order dated August 12, 1999 passed by the respondent No. 1 should, therefore, be set aside. Consequently, all the orders passed by the revisional authorities dated July 5, 2000, August 30, 2000 and January 9, 2000 do not stand in the eye of law. Accordingly, all the aforesaid impugned orders are set aside and the learned Commercial Tax Officer is directed to rehear the matter giving opportunity to the petitioner of being heard. In RN-356 of 2001 the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and valid and (2) if the application for eligibility certificate was rightly rejected. We have already observed in RN-148 of 2001 that the service of notice has to be made in accordance with the rule 278 of the West Bengal Sales Tax Rules, 1995. There is no evidence on record that the notice for hearing was served upon the petitioner by exhausting all measures as provided in the said rule. Even if, it is accepted that the petitioner duly received the notice well ahead the date of hearing, still point remains for consideration, if at all, the ex parte orders were passed after due consideration of the facts on records and due application of judicial mind as decided in several leading cases of the country. In State of Kerala v. Velukutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection of registration certificate was set aside. The ex parte orders of assessment without service of any appropriate notice and without giving opportunity to the petitioner of being heard, are illegal and unjustified. The assessment orders also cannot stand in the eye of law, in as much as, those orders were not based in consonance with the principles laid down by the honourable Supreme Court on a "best judgment assessment". Hence, we set aside the orders of assessment, with a direction to hold assessment for the said period afresh giving opportunity to the petitioner of being heard. The application for eligibility certificate since is restored due to non-existence of the order of rejection of the registration certificate. The same m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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