9911796707
TMI Blog2008 (4) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Sarkar, Additional Commissioner of Commercial Taxes, West Bengal, Siliguri Zone both under order dated August 22, 2007, the appellate order passed in Appeal Case No. 3A-418/2004-05 in respect of the period ending on March 31, 1995 and in the Appeal Case Nos. 3A-428/2004-05 as well as 427/2004-05 both passed by Mr. Sonam Jigmay Kargay, Assistant Commissioner of Commercial Taxes, Siliguri Circle on November 9, 2005 and December 1, 2005, respectively and also the assessment orders passed by the Commercial Tax Officer, Siliguri Charge on July 25, 1997 and on June 8, 1998, respectively in the Darjeeling Case Nos. 113(J) 95-96 and 673(J) 97-98. In both the cases, in the revisional orders, the Additional Commissioner held that the revisional ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce the postal acknowledgement-due card after 10 years. The issues called upon for our consideration are: (i) Whether initiation of the assessment proceedings are valid, (ii) Whether the revisional orders, appellate orders are valid and whether the petitioner is entitled to the reliefs. Holding that the opportunities of being heard in the assessment proceedings were not denied, in the order of the Appeal No. 3A-418/2004-05 it is observed that the appellant-petitioner agitated denial of opportunity being heard in the assessment proceedings but it was found that the notice in form 29 was issued fixing October 30, 1995 for hearing and thereafter when June 25, 1997 was fixed for hearing, a notice dated April 28, 1997 had been issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned methods, the said authority may, after recording his reasons for so doing, cause such notice to be served by affixing a copy thereof in some conspicuous place in his office and also upon some conspicuous part of the last notified place of business of the dealer, and a notice so served shall be deemed to have been duly served. (2) When a notice is sent by registered post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by a registered letter in transit unless the contrary is proved. In these cases where the contesting respondent claimed that the registered postal cover was returned unserved the presumption under the provisions of sub-rule (2) of the rule 84 of the 1941 Rules and ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led principle of law that in absence of service of notice, no orders affecting the interest of the assessee can be passed. So the appellate authority committed an error in holding that the opportunity of being heard in the assessment proceeding was not denied to the assessee. He should have held that the notices to the assessment proceeding not being served the ex parte assessment orders were invalid and those should have been set aside. Consequently, the recovery proceedings were also liable to be set aside. The learned Advocate Mr. Khan for the petitioner citing the decision of the honourable Supreme Court in the case of Commissioner of Income-tax, Kerala v. Thayaballi Mulla Jeevaji Kapasi (decd.) reported in [1967] 66 ITR 147 submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereof; from the absence of service of notice presumption of non-issue of notice can be drawn but itself does not negate commencement of the proceeding. If the presumption remains unrebutted it would be held that the notice was not issued and that would result in drawing the presumption of non-drawal of the proceeding which is also rebuttable. In our case it is admitted that the notices were not served but the issue thereof was disputed. So we already held that the assessment orders were liable to be set aside for absence of service of notices. The Revenue should be given opportunity to prove that the notices were actually sent to the recorded addresses of the assessee. If the Revenue is successful, the Revenue should be given an opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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