T.S.MISRA, J. - (1.) THE Commissioner, Sales Tax, Uttar Pradesh, Lucknow, has, at the instance of the State of U.P., referred the following questions for our opinion under section 11 of the U.P. Sales Tax Act : "(1) Whether under the circumstances of the case, the report of refusal by the postal authorities on the envelope containing assessment order and demand notice sent by registered post to the correct address amounts to proper service ? (2) Whether it was compulsory on the part of the postal authorities to write the name, etc., of the person who refused the registered letter when the letter was correctly addressed ?"
(2.) M /s. Mukat Lal Om Prakash of Bulandshahr were dealers in food-grains, oil-seeds, etc. The Sales Tax Officer having found that the assessee did not deposit the sales tax and file quarterly returns for the year 1960-61, proceeded to take action under section 21 of the U.P. Sales Tax Act. The Sales Tax Officer sent a copy of the notice to the assessee through registered A.D. post, which was returned by the postal authorities with the remark "refused". The Sales Tax Officer held the service of the notice to be sufficient and as the assessee did not appear before him he passed ex parte assessment order on 18th October, 1965. The assessee filed an appeal before the Assistant Commissioner (Judicial), Bulandshahr Range, on 28th March, 1966, pleading inter alia, that he came to know of the ex parte order of assessment on 25th October, 1966, when recovery proceedings against him were taken. The Assistant Commissioner (Judicial) found that the copy of the impugned assessment order along with the notice of demand had been sent to the assessee at the address of the firm by registered post but the same was returned by the postal authorities on 24th December, 1965, with the remark "refused". The service of the assessment order and the demand notice was, therefore, deemed to have been effected on 24th December, 1965, and as the appeal had been filed on 28th December, 1966, it was held to be barred by time. On revision, the Additional Judge (Revisions), Sales Tax, Agra, observed that in the report of the postal authorities nothing had been mentioned as to who had refused the service. From the report of the process-server, it appeared that the assessee-firm had been closed and the two partners of the firm had separated. The Judge (Revisions), Sales Tax, therefore, found it desirable that the name of the person who had actually refused the service should have been mentioned by the postal authorities and as the same was not done the report was not clear and the presumption of service raised by such refusal could not be drawn. The State of U.P. thereupon moved the Additional Judge (Revisions), Sales Tax, under section 11(3) of the said Act for referring the aforesaid questions to this court for opinion. Question No. (1). - It appears that the assessment order and the demand notice were sent to the assessee-firm by registered post in an envelope at the correct address of the assessee. Rule 45 of the U.P. Sales Tax Rules provides : "As soon as the assessment has been made the Sales Tax Officer shall send to the dealer a notice in form XI together with a copy of the assessment order free of charge and the dealer shall pay the tax so assessed within the time and in the manner specified in the notice." Rule 77 deals with the mode of service of notice, summons or order. Rule 77 provides : "(1) The service of any notice, summons or order under the Act or the Rules may be effected in any of the following ways, namely ......... (c) if the address of such dealer or licensee is known to the Sales Tax Officer, by sending a copy thereof to him by registered post; or ..."
(3.) IN the present case, the Sales Tax Officer did send the copy of the assessment order and the demand notice at the address of the assessee-firm by registered post. The envelope containing the said documents, however, was returned by the postal authorities undelivered to the assessee with the endorsement "refused". The Additional Judge (Revisions), Sales Tax, in his judgment dated 6th February, 1970, has observed that : "It appears from the report of the process-server in other processes that the firm had been closed and the two partners of the firm had separated. So also it was desirable to know as to who had actually refused the service." ;