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TMI Blog2018 (4) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(1) of the MVAT Rules, 2005, Reviewing Authority does not get jurisdiction to review the order - It is settled law that want of valid service of notice being a condition precedent and foundation of jurisdiction of Sales Tax Officer, mere participation of the Respondent-Dealer in review proceedings cannot validate the review proceedings. In the case in hand, the Respondent-Dealer was served by one of the modes contemplated under Rule 87(1)(a)(b)(c)(d) and (e) of the MVAT Rules, 2005. There is nothing on record to indicate that the authorities resorted to substituted service after having formed the opinion that the Respondent-Dealer could not be served by one of the modes contemplated under Rule 87(1) - reviewing authority, had not acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into genuineness of transactions ? (iii) Whether in law and on facts, was the Tribunal right in holding that the Officer sought to have followed each procedure for attempt to serve as provided in sub-rule (1)(a) to (e) of Rule 87 of the MVAT Rules, 2005, whereas the Sales Tax Inspector was right in coming to conclusion that whereabouts of the Respondent were not known and notice cannot be served except by way of pasting ? 3. Before dealing with the above questions of law urged by the Appellant, it is necessary to point out that this is second round of litigation inasmuch as Respondent-Dealer herein had filed MVX Appeal No.1 of 2014 before this Court against the order dated 21.4.2014 passed by the Maharashtra Sales Tax Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng found no substance in the Appeal vide order dated 20.6.2013 dismissed the Appeal and upheld the order dated 4.12.2012. The Respondent-Dealer being dissatisfied with this order, approached the Tribunal by filing VAT Appeal Nos.336 and 337 of 2013 which were also dismissed on 21.4.2014. 10. The Respondent-Dealer thus filed MVX Appeal No.1 of 2014 before this Court challenging the order passed in VAT Appeal Nos.336 and 337 of 2013. 11. The principal contention of the Respondent-Dealer was, that powers of the review were exercised by the Deputy Commissioner of Sales Tax without his knowledge and cancelled the certificates from inception, i.e., 14.8.2006 and unilaterally recorded a finding that the Respondent-Dealer had not carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeals of the Respondent-Dealer and set aside the review order dated 04.12.2012 whereby the registration certificates of the dealer under both the Acts were cancelled from its inception, i.e., from 14.8.2006. 16. That being aggrieved by the order dated 25.1.2017, the Additional Commissioner of Sales Tax has preferred these Appeals. 17. Heard Mr. Sonpal, Special Counsel for the Appellant-State and Mr. Sandip Ghaterao, the learned counsel for the Respondent. 18. That with the assistance of the learned counsel for the Parties, we have perused the impugned order and the orders passed in the proceedings. 19. Powers of the review under Section 25 of MVAT Act, 2002 cannot be exercised unilaterally. That before exercising such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee had taken part in the proceedings without raising objection as to the invalidity of the notice; and [emphasis supplied] (ii) That since the facts were on record and the question raised was a question relating to jurisdiction of the Sales Tax Officer to entertain the proceedings, the Tribunal was justified in allowing the assessee to raise the question of validity of service of notice at the stage of rectification proceedings. 20. In the case in hand, in the first round of litigation, this Court vide order dated 23.1.2015 while quashing the order dated 21.4.2014 passed by the Tribunal had expressly kept open all the contentions of both sides on merits of the appeal. More so, in paragraph 14 of the said order, the Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of notice and, therefore, finding of the Tribunal that the review proceedings were bad in law for want of jurisdiction is incorrect. He would further submit that the Tribunal upon appreciating evidence/material on record rendered a finding in favour of the Revenue, that entire exercise of the Respondent-Dealer is an exercise of fraud and evasion . 23. It is true that the Tribunal in paragraph 35 has ultimately found that entire exercise/activity of the Appellant or somebody who has used the appellant was an exercise in fraud and evasion, but such a finding on merits in favour of appellant does not further the case of the Appellant-State for want of jurisdiction, for the reasons stated hereinabove. In the case of Shrimal Sakharchand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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