V. K. ENTERPRISES v. ORISSA SALES TAX TRIBUNAL — 1995 DIGILAW 375 (ORI)

JUDGMENT : A. Pasayat, J. - The only question that arises for adjudication in this writ application is whether there was no service of notice on the petitioner (also referred to as 'assessee') as claimed, and therefore, the ex parte decision of the Orissa Sales Tax Tribunal (in short, 'the Tribunal') ought to have been set aside for a fresh adjudication on merits. 2. A brief reference to the factual aspects would suffice. Revenue filed four appeals being S. A. Nos. 1950 to 1953 of 1986-87 against the order passed by the Assistant Commissioner of Sales-tax, Koraput Range, Jeypore (in short, 'ACST') granting relief to the petitioner a proprietorship concern of Sri Amar Kumar Sahu for the assessment years 1980-81 and 1981-82 in respect of assessments framed under the Orissa Sales-tax Act, 1947 (in short, 'the Act'). The date of hearing was posted to 2-11-1993. There was no appearance on behalf of the petitioner. The matter was heard ex parte and was disposed of by a Full Bench of the Tribunal accepting the appeal of the Revenue and directing restoration of the determination of tax as done by the assessing officer. An application was filed by the petitioner praying to set asids the ex parts decision, and restore the appeals for hearing inter alia on the ground that there was no service of notice on him. With reference to the records the Tribunal found that the notice of hearing fixing the date to 2-11-1993 was served on one Suresh Prasad Sahu for Shri A.K. Sahu of petitioner-concern. Since there was dispute as to whether there was service of notice. Tribunal directed notice be sent to the concerned Sales-tax Officer to enquire and furnish a report if there was service of notice. There was also direction to the Postal Department to find out whether the letter was delivered to an appropriate person. Petitioner was also directed to place materials in support of his stand. The matter was directed to be placed on 30-4-1994. On the said date the Tribunal considered the affidavit filed by the petitioner and took the view that there was service of notice. 3. According to learned counsel for petitioner, the approach of the Tribunal is erroneous and materials on record have not been considered in their proper perspective. The matter was directed to be placed on 30-4-1994. On the said date the Tribunal considered the affidavit filed by the petitioner and took the view that there was service of notice. 3. According to learned counsel for petitioner, the approach of the Tribunal is erroneous and materials on record have not been considered in their proper perspective. According to learned counsel for Revenue since the notice was sent to the party by registered post, valid service of notice has to be inferred. 4. At this juncture it is necessary to take note of' the provisions of the Act: the Orissa Sales-tax Rules, 1947 (in short, 'the Rules') and the Orissa Sales-tax Tribunal Regulations, 1992 (in short, 'the Regulations'). It is not in dispute and in our considered opinion rightly, that an appeal ought not to be heard without notice to the parties. Rule 50 of the Rules deals with hearing of appeal. It reads as follows : "50. Wearing of appeal--(1) If the appeal is not summarily rejected, the appellate authority shall fix a day and place for hearing the appeal and may from time to time adjourn the hearing. (2) The appellate authority may, before disposing of any appeal, make : such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales-tax Officer or the Sale-tax Officer, as the case may be. (3) The appellate authority shall not enhance an assessment or a penalty unless the appellant has had a reasonable opportunity of showing cause against such enhancement." Rule 58 deals with notice of hearing and the sama reads as follows : "53. Notice of hearing--After an appeal or application for reference has been admitted, a notice of the date fixed for hearing in Form XXV shall be delivered or sent by registered post with acknowledgement due to the appellant or applicant and to the respondent or opponent or their agents. Notice of hearing--After an appeal or application for reference has been admitted, a notice of the date fixed for hearing in Form XXV shall be delivered or sent by registered post with acknowledgement due to the appellant or applicant and to the respondent or opponent or their agents. The notice shall also state that if they do not appear before the Tribunal either in person or through an agent on the date specified in the notice or on any subsequent date to which the hearing may be adjourned, the Tribunal shall hear and decide the appeal or application ex parte : Provided that in the case of an appeal the date of hearing to be fixed in the notice in Form XXV shall not be earlier than thirty days of the date of receipt of notice in Form XXIV by the respondent." The notice fixing the date of hearing is to be in Form XXV which is to be delivered or sent by registered post with acknowledgement due to the appellant or applicant and to the respondent or opponent, or their agents. The expression 'agent' is defined in Rule 2 (a) and reads aS follows : "(a) 'Agent' means- (i) In the case of a dealer, a person authorised in writing by the dealer to appear and act on his behalf before any Sales-Tax Authority or the Tribunal being- (i) a relative of the dealer ;or (ii) a person regularly employed by the dealer; or (iii) a Barrister-at-Law or Solicitor or any other person entitled to plead in any Court of Law in India; or (iv) a person who has been enrolled as a registered accountant in the Register of Accountants maintained by the Central Government under the Auditor's Certificate Rules, 1932, or holds a restricted certificate under the Restricted Certificate Rules, 1932, or has passed any accountancy examination recognised in this behalf by the State Government; or (v) a person who possesses a degree in Commerce, Law, Economics or Banking including Higher Auditing, conferred by any Indian University incorporated by any law for the time being in force or any foreign University duly approved in this behalf by the State Government; and (ii) in the case of the State Government, the State Representative appointed in this behalf." Regulation 3 deals with notice of hearing and provides that after an appeal or application for reference has been admitted, a notice of the date fixed for hearing of the same shall be delivered through Peon or sent by registered post with acknowledgement due in Form XXV. It further provides that in case service of notice is ordered to be effected on the agent, name and address of the agent shall be transcribed at the bottom of the notice and the notice shall be sent to or served on him. Rule 84 of the Rules deals with service of notice and requisitions. It provides that a notice or requisition under the Act or the Rules may be served on the person named therein either by registered post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908 (in short, 'the Code'). Rule 84 of the Rules deals with service of notice and requisitions. It provides that a notice or requisition under the Act or the Rules may be served on the person named therein either by registered post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908 (in short, 'the Code'). Sub-rule (2) of the said Rule provides that such notice or requisition may, in the case of a firm or a Hindu Joint Family, be addressed to any partner of the firm or to the manager or any adult male member of the family, and in the case of any company, society, club or other association to the manager or the principal officer thereof. 5. The basic question in the premises is whether the person who undisputedly had received the notice was authorised to do so. From the order dated 31-3-1-1994 as referred to above, we find that the Sales-tax Officer concerned and the Postal Department were required to indicate whether the person who received the notice was authorised to do so. The report received from the Sale-tax Officer is to the effect that Shri Suresh Prasad Sahu, the recipient is a stranger to the case, and one Shri J. P. Gupta was the only person authorised to receive notice. No report was received from the Postal Department. The Tribunal proceeded to dispose of the matter without awaiting the report from Postal Department. Tribunal has also not referred to the report received from the Sales-tax Officer, but has corns to the conclusion that since Shri Suresh Prasad Sahu was accepted to be the Peon, and there was no material to show that the assessee had received the notice from the Peon and/or that Suresh did not hand over the notice to the assessee, the plea that the notice was received was not to be accepted. There was no definite material before the Tribunal that Shri Suresh Prasad Sahu was authorised in writing to appear or act on his behalf before the Sales-tax Officer or the Tribunal or to receive any notice on behalf of the assessee. Additionally the Tribunal has not considered the effect of report of the Sales-tax Officer and also did not wait for the report from the Postal Department. Additionally the Tribunal has not considered the effect of report of the Sales-tax Officer and also did not wait for the report from the Postal Department. Therefore, there was no definite material to show that the notice was handed over to the assessee and there was no appearance notwithstanding knowledge about the notice. There was no material before the Tribunal to conclude that the notice was handed over to the assessee its reasoning is very queer. It has come to the conclusion that there was no material to show that the person who had received the notice had not handed over the notice to the assessee. It was required to be established that the same had been done. That was the crux of the matter. A presumptuous conclusion has been arrived at by the Tribunal about service of notice. On the other hand, materials having relevance have not been considered. Since Postal Department was asked to indicate certain information, the matter should not have been disposed of without waiting for the information. 6. We set aside the order rejecting the application for restoration, and direct the Tribunal to re-hear the said application. The writ application is allowed to the extent indicated above. P.C. Naik, J. 7. I agree.