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TMI Blog2019 (8) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... and sells the same to other dealers in the State of U.P. as alleged throughout India. Apart from business and trading of goods petitioner is also engaged in providing warehousing and various other services to sellers registered on the portal www. flipkart. com wherein, petitioner manages inventory, packaging and invoicing for said sellers. Under the registration documents of petitioner under Act 2008 and CST Act his address was mentioned as Cabin No. 2 First Floor, G-50 Sector-3, Noida,. The petitioner have changed its address from the present address to D-510-513, Buffer Godown Compound, Devi Mandir Road, Dasna, Ghaziabad. Thereafter, the petitioner intimated the respondent for change/amendment of the address in the registration certificate instead of the amending and passing order on the said application and ex-parti provincial assessment orders were passed for the assessment year 2012-13 (4) U.P. under Act 2008 and CST Act. On the basis of an ex-parte assessment order certain amounts were also withdrawn from the Bank amount of the petitioner. The petitioner had preferred a writ petition No. 80 and 168 of 2016 and the same was allowed and the ex-parte assessment orders were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 2013-14 both under the Act 2008 and CST Act. It is submitted that in spite of the fact that the petitioner's address have been changed and the respondent were duly intimated about the said change of address, the respondents neither serve the copy of notice upon the petitioner on its new address nor any intimation was given before passing of the impugned order dated 31st March, 2017 for the disputed assessment year. It is further argued that even though the complete procedure have been prescribed under Rule 72 of U.P. VAT Rules about the service of notice before taking any action against the petitioner but the same has not been complied with and in gross violation of the said Rule the notice of assessment in question have been served by affixation which is not permissible under the Act 2008 and Rules. Learned counsel for the respondents have supported the impugned order and tried to justify the action of the respondent in passing the assessment order. We have perused the record of the case before proceeding further it may be pointed out that in earlier two round of litigation the similar question arose about the service of notice on the earlier address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rejected by the assessing authority on the ground that the application was filed beyond the stipulated period of 30 days since service of the assessment order by affixation was made on 17.12.2015 at Noida. The Assessing Authority had also rejected the recall application on the ground that the admitted tax of Rs. 3.3 crore was not deposited which is a mandatory requirement as per Section 32 of the Act. On this issue, we are of the opinion that Assessing Authority committed a manifest error in rejecting the recall application. For facility, section 32 is extracted hereunder:- 35. Before parting, we must observe the manner in which the respondents have proceeded with the assessment and recovered the amount from the petitioner's Bank account in haste is deplorable and in gross violation of the provisions of the Act. We find that for the assessment years 2011-12, 2013-14 and 2014-15 ex-parte assessment orders were made without adequate service of notices upon the petitioner. These assessment proceedings were set aside in appeal on the short ground that the service of the summons were sent at the address where the petitioner was no longer carrying on its business. Inspite of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s allowed with a cost being imposed on respondent of Rs. 50,000/. The Hon'ble Court has observed us under: "16. We however required him to tell us as to how respondent 1 could dare to pass further assessment orders, when earlier orders passed by him were declared without jurisdiction by this Court by referring to the similar application of petitioner for change of business address. In reply thereto a very bulky counter affidavit has been filed separately by respondent 1. Despite he could not explain as to what was the occasion for any confusion when the needs were very clearly disclosed and decided in Courts' judgment dated 29.02.2016 and why respondent 1 was in so such a hurry so as to pass the impugned assessment orders on 04.05.2016. 18. In these facts and circumstances we are satisfied that here is a forced litigation by unmindful illegal act on the part of respondent 1 and realizing the same he has also withdrawn the impugned orders and also considered the fact he is an authority which was already adversely commenced by this Court in its order dated 29.02.2016 still he did not care to such observations. It is again a fit case where respondent 1 himself would be sad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 72 provides that the authorities shall simultaneously issue notice, order or summon for service by post. The aforesaid Sub-Rule (h) of Rule 72 of the Rules clearly envisages that in addition to the personal service through process server, sending of notice by registered post is mandatory. This mandatory provision has not been followed in the present case as is evident from the record produced. In view of the aforesaid facts and circumstances, the contention of assessee revisionist that he was not served with any notice of the proceedings has force. Accordingly, as the service of notice by post is mandatory and in addition to service by process server, the above question is answered in favour of the assessee revisionist and against the revenue holding that the authority was not competent to cancel the registration of the assessee/revisionist without issuing notice to him by registered post simply on the basis of service of process server by refusal." The Division Bench judgement in the case of petitioner itself and Sri Balaji Enterprises (supra) a clear procedure for service on notice has been prescribed which has not been followed by the respondent in the case in hand. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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