9911796707
TMI Blog1991 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... her nature was received by the managing partner ; that he was under the impression that the returns filed were accepted ; that, suddenly, an order of attachment of the theatre was communicated to the petitioner in May, 1989, by the Deputy Commercial Tax Officer ; that the petitioner was informed that the said attachment order was in pursuance of the best judgment assessment orders of the Deputy Commercial Tax Officer dated May 11, 1987, determining the tax due from the petitioner for all the six quarters ; that the petitioner applied to the Deputy Commercial Tax Officer for copies of the assessment orders which were supplied on January 23, 1990, and that the Deputy Commercial Tax Officer has arbitrarily determined the tax due based on the best judgment assessments. It is further alleged that, aggrieved by the orders of the Deputy Commercial Tax Officer, the petitioner filed appeals before the Appellate Deputy Commissioner, Kakinada, on January 29, 1990, showing the date of service of the order as January 23, 1990 ; that the petitioner received an endorsement by the Appellate Deputy Commissioner dated June 26, 1990, rejecting the admission of the appeals on the ground that the filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue Recovery Act when the demand notices to the petitioner for payment of the tax did not evoke any response ; that, upon the instructions of the Joint Collector, Kakinada, the Mandal Revenue Officer, Pithapuram, issued Form No. 1 notice on January 8, 1991, under the Revenue Recovery Act to the petitioner for attachment of the properties of the theatre and that the action of the Mandal Revenue Officer is in accordance with law. It is asserted in the counter-affidavit that the contention of the petitioner that he had no knowledge of the assessment of the six quarters is a totally false and misleading statement in view of the fact that the assessment orders and demand notices were got served by affixture at the door of the office of the theatre on June 6, 1987, when he refused to receive the same and that the dismissal of the appeals by the Entertainment Tax Appellate Deputy Commissioner, Kakinada, is legally valid and correct. On the facts alleged by the petitioner in the revision petition and by the Entertainment Tax Officer in the counter-affidavit, the only short point that arises for consideration in this revision petition is : "Whether the affixture of the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have held that a plain reading of rule 77 of the U. P. Sales Tax Rules shows that four alternative modes of service mentioned in clauses (a) to (d) have been provided ; that clause (d), however, provides that the service by affixation can be resorted to only if none of the other modes is practicable ; it follows, therefore, that whenever recourse is desired to be taken to the mode of service mentioned in clause (d), the other modes should be tried first, unless it is shown that none of the other modes was practicable. In the case before the Allahabad High Court in Gopal Das Uttam Chand v. STO [1970] 25 STC 229, the process-server has taken the notice to the assessee for personal service as contemplated by clause (a) and as the assessee's shop was found closed and the process-server was unable to ascertain the whereabouts of the assessee, he affixed the notice on the shop of the assessee. The assessment order does not show that the remaining modes mentioned in clauses (b) and (c) were tried. The process server was instructed by the Sales Tax Officer that in case the former was not able to effect personal service upon the assessee, he could resort to service by affixation. Their Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceptional circumstances and that that is why rule 77 provides for service by affixation if service by no other method is practicable. As against the above rulings relied upon by learned counsel for the petitioner, the learned Government Pleader for Commercial Taxes relied upon the decisions of the Karnataka High Court and the Madras High Court in support of his case. A Division Bench of the Karnataka High Court, while considering the scope of rule 53(d) of the Karnataka Sales Tax Rules, 1957, held in Manusukhlal A. Shah v. State of Mysore [1975] 35 STC 465 that, before ordering the service of notice by affixture, it is the duty of the assessing authority to attempt to serve the notice either by personal service/delivery as contemplated in clause (a) or by sending it by registered post as contemplated in clause (c) and if none of the alternative modes is practicable after having tried it and found it to be unsuccessful, then it may order service by affixture. The Division Bench further held that the opinion that service in any of the modes provided under clauses (a) to (c) is not practicable must be formed by the assessing authority and not by a lesser authority like the inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r all of the modes mentioned in clauses (a) to (c) is not practicable, then it is open to the assessing authority to effect service by affixture. Having regard, therefore, to the different wording used in rule 52 (d) of the Rules, I hold that the reasoning given by and the decision arrived at by the three Division Benches of the Allahabad High Court has no application to the facts of this case. On the other hand, having regard to the specific wording used in rule 52(d) of the A. P. Rules, I hold that it is sufficient for the assessing authority to resort to any or all of the modes mentioned in clauses (a), (b) or (c) as a condition precedent for invoking the procedure prescribed under clause (d) and that it is not necessary that all the modes prescribed in clauses (a) to (c) should be exhausted before the assessing authority decides to invoke the procedure prescribed under clause (d) to effect service by affixture. The next point that remains for consideration is: "Whether the assessing authority has exercised his discretion in this case before resorting to the procedure prescribed under rule 52(d) of the Rules for effecting service by affixture ?" Even the decisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered post and that the opinion that service in any of the modes provided under clauses (a) to (c) of rule 53 of the Karnataka Sales Tax Rules is not practicable must be formed by the assessing authority and not by lesser authority like the inspector or the bill collector. Thus, the judicial opinion is uniform that it is the assessing authority that has to apply its mind and come to the conclusion that the mode of service prescribed under clauses (a) to (c) is not practicable but it cannot delegate that discretion to any of its subordinates like the inspector or the bill collector or much less to a process-server as is done in the present case. The counter-affidavit does not disclose that, after the assessee refused to receive the assessment orders when sought to be served upon him by the process-server, that fact was brought to the notice of the Deputy Commercial Tax Officer. The said Deputy Commercial Tax Officer after applying his mind to the facts of the case has decided to effect the mode of service under the procedure prescribed in rule 52(d) and then empowered the process-server to effect service by affixture. The learned Government Pleader has produced the records r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o material on record to show that, after the alleged refusal of notices by the managing partner or the other partners of the assessee-theatre, that fact was brought to the notice of the assessing authority and that the assessing authority after satisfying himself that the modes of service as contemplated under clauses (a) to (c) of rule 52 are not practicable has ordered service of notice by affixture. The process-server has endorsed on October 14, 1986, that, since the proprietor has refused to take the notice, he has effected service of the notice by affixture. But, as seen from the record, the assessee is not a proprietary concern, The letters addressed to Devarapalli Venkata Ramana Murthy who is the managing partner and to Suranna, who is a partner of the theatre, show that it is a partnership concern. The endorsements of the process-server do not specify on whom he has sought to serve the notices and who has refused to receive the notices. From the above discussion, I find on the point that the affixture of the assessment orders for the six quarters in question on June 6, 1987 is not proper service as contemplated under the Act or the Rules framed thereunder. The civil rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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