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TMI Blog2020 (4) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... eing fact finding authorities, the Appellate Authorities should not have shirked their responsibilities and decided the case on merits. The present writ petition is allowed by setting aside the impugned orders passed by the Authorities below and restore the matter to the First Appellate Authority to decide the appeal afresh in accordance with law, after affording reasonable opportunity to both the parties, within a period of six months from today - petition allowed by way of remand. - W.P. No.34052 of 2005 - - - Dated:- 19-2-2020 - Dr. Justice Vineet Kothari And Mr. Justice R. Suresh Kumar For the Petitioner : Mr.N.Muralikumaran, for M/s.Mc.Gain Law Firm For the Respondents : Mr.R.Swarnavel, Government Advocate (Tax) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in spite of the specific intimation by the postal authorities he has not received the order. Hence it has to be concluded that the service by affixture is proper and this date must be taken as the date of service. There is a delay of 190 days in paying the admitted tax and there is a delay of 137 days in filing of the appeal. In the decision reported in 100 STC page 1, it is held that the payment of admitted tax/appeal fees and the filing of the appeal petition within the statutory period is a condition precedent before entertaining the appeal. Hence, I dismiss the miscellaneous petition as not entertainable. 2. The relevant observation made by the Tribunal is also quoted below for ready reference :- 6. We have heard the argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the receipt of notice on 3.10.96, Appellant has refused to receive the notice. The postal authorities have returned the same to the Assessing Officer on 14.10.96 as not claimed . He has been given another opportunity on 17.12.96. The Appellant has received the notice on 10.1.97 but not responded to the notice. Hence, final order was passed on 27.1.97. The Appellant has not received the said order and the same was served by affixture on 25.2.97. Still then, the Assessing Officer has sent a copy of the assessment order to the Appellant by RPAD on 26.2.97. The same was also returned by the postal authorities with the endorsement that the same is not claimed by the Appellant. Even after specific intimation given to the Appellant about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fused to receive the order, the order served by affixture on 25.2.97 is proper. Further, to comply the principles of natural justice, a copy of the order is also sent by RPAD on 26.2.97 and the same is also refused by the Appellant. The postal endorsement made by the postal authorities is specific about the refusal of the Appellant to receive the order. Therefore, when the order is served on the Appellant and the same is refused, service by affixture made is proper. Further, in order to give opportunity to the Appellant to get the orders by RPAD is also made. Even for this, he has refused to receive the order. The case laws relied on by the Appellants put forth in the grounds of appeal and also those in the written arguments are not applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance of admitted tax and the same is actually not paid. The refusal on the part of the Appellant to receive the notice and order has been mentioned by the Assessing Authority in his assessment order clearly. Further, the endorsement by the person making service of the order by affixture is enough. The Appellant argument that the service has to be done in the witness of the Village Administrative Officer or any independent witness is improper. There is no evidence and authority for the same. The endorsement by the process server relating to the service of the order, also for the refusal of the same and also for affixutre is proper. Therefore, we conclude that the appeal petition rejected by Appellate Assistant Commissioner refusing to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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