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TMI Blog2009 (5) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Tribunal that the conduct of Madan Lal was that of an agent is based on surmises and conjectures since there is no material whatsoever on record to indicate that either Madan Lal was managing the business affairs or acting as an agent? Held that:- 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 that the mode of fixation used by the assessing authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Lal was that of an agent is based on surmises and conjectures since there is no material whatsoever on record to indicate that either Madan Lal was managing the business affairs or acting as an agent? 4.. Whether on the basis of the information regarding the seizure of the documents by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Assistant Commissioner. The Assistant Commissioner allowed the appeal and has remanded the case to the assessing authority by his order dated February 7, 1987. The assessee, thereafter, filed a second appeal under section 10 of the U.P. Sales Tax Act before the Tribunal. The Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 manager, munim, accountant or agent or an employee or member of his family or an endorsement by a postal employee that the addressee or his manager, munim, accountant or agent or employee or member of his family refused to take delivery may be deemed by the concerned autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 fact the court has recorded a finding that the notice, which was sent by registered post was accepted by the brother-in-law of the assessee and while the provisions of rule 77A are a complete mode of service, rule 77B stands on its own and the fact that the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 that the mode of fixation used by the assessing authority was illegal. Thirdly, the notice, which has been held to be valid by registered post by the Tribunal, is also in the teeth of the finding recorded by the Tribunal itself that it has not come on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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