9911796707
TMI Blog2009 (5) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... o been decided by this judgment. The questions of law referred to are as hereunder: "1. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal after recording a finding in favour of the applicant that the notice by affixation on March 27, 1985 was not legal and valid, was not justified in treating the service of notice on Madan Lal, who was admittedly the brother of the wife of the sole proprietor of the applicant as legal and valid? 2.. Whether, on the facts and circumstances of the case, the Tribunal was not justified in holding that in the absence of the proprietor of the applicant, the service of notice on Madan Lal shall be treated as valid? 3.. Whether the observation of the Tribunal that the conduct of Madan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. Sales Tax Act, 1948 by the assessing authority. Other facts as stated in the writ petition are that the assessee was undergoing depression and, therefore, his brother-in-law Madan Lal had come to Kanpur from Amritsar to look after Moti Lal, the assessee. The contention of the assessee is that the jurisdictional notice under section 21 was never served upon the applicant and provisions of rule 77 were not complied with faithfully and, therefore, no proceedings under section 21 could be continued for that matter, even if it be initiated under the so-called notice under section 21. The order under section 21 was passed on September 25, 1985 against which the assessee filed an appeal under section 9 of the U.P. Sales Tax Act before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be dropped. In support of his contentions, learned counsel for the assessee has relied upon a decision of this court as reported in Commissioner of Trade Tax, U.P., Lucknow v. Chaudhary Ramchandra & Sons, Kanpur [2006] 44 STR 1020, wherein this court has held that in order to treat the service of notice as proper, it is essential that the notice should be served either on the assessee or on the authorized agent and the authorization should be reduced to writing. In the absence of such an authorization in writing, he has argued, it would not amount to proper service as envisaged under rule 77(4) which is quoted hereinbelow: "(4) When service is made by post, an acknowledgment purporting to have been signed by the addressee or his m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion relied upon by learned counsel is as reported in [2006] UPTC 125 in the case of National Chemical Products, Firozabad v. State of U.P., wherein also this court has decided that a notice under section 21 is a jurisdictional notice and service by affixation without resort to other modes is illegal and invalid. The learned counsel has relied on this decision to advance the argument that while making an order for affixation of a notice, the assessing authority must pass an order or report a reason why it is resorting to this mode. In the present case, he has argued that the fixation was made without passing any order or giving any reason as to why this mode was resorted to. The learned Standing Counsel Shri Nimai Das has argued that in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the order of the Tribunal and other materials on record. It is a settled law that the notice under section 21 is a jurisdictional notice and in order to initiate proceedings under section 21 of the Act, proper service of notice as contemplated under rule 77 of the Rules must be complied with. In the present case, the Tribunal has on its own recorded firstly that the notice sent through process server was not served upon the assessee. Secondly, the mode of notice used by the assessing authority was by pasting on the premises of the assessee. However, the order of the Tribunal does not reflect in any manner that the assessing authority has given any reason for resorting to this mode and, therefore, the Tribunal, on its own, has recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
