RAJES KUMAR, J. - (1.) PRESENT revision under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, 'the Act') is directed against the order of the Tribunal dated April 22, 1996 relating to the assessment year, 1996 -97 under the Central Sales Tax Act, 1956.
(2.) FOR the aforesaid assessment year, assessing authority passed the assessment order under Section 9(2) of the Central Sales Tax Act, 1956 on March 9, 1991 and declared the applicant non -assessable. Later on it came to the knowledge to the assessing authority through letter dated July 25, 1981 written by A.D.M. (SC), Moradabad, that the endorsement of the RR was made by the applicant and not by the D.S.O., Moradabad, on behalf of the D.M., a proceeding under Section 21 of the Act was initiated. It appears that the notice under Section 21 was issued on March 28, 1981 for March 31, 1981 which was not served. Another notice was issued on March 25, 1982 for March 30, 1982 which was also not served. Another notice was issued on March 30, 1982 for March 31, 1982 for serving the notice by affixation, on which the assessing authority had mentioned that if the notice is refused to be taken or the shop is found closed, the notice may be affixed. Treating this service of the notice as sufficient, the assessing authority passed the assessment order. Aggrieved by the reassessment order, the applicant filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Moradabad, which was dismissed. The applicant filed second appeal before the Tribunal. The Tribunal vide impugned order allowed the appeal and remanded back the case to the assessing authority to pass assessment order afresh. The Tribunal, however, held that the notice issued on March 30, 1982 for March 31, 1982 was served by affixation and was proper service. The Tribunal further held that on March 25, 1982 notice was sent by registered post and thereafter on March 30, 1982 fixing the date as March 31, 1982 was served by affixation. Heard learned Counsel for the parties. Learned Counsel for the applicant submitted that the Tribunal has erred in treating the notice dated March 30, 1982 alleged to have been served by affixation in accordance with the law while the said notice was not served in accordance with Rule 77. He submitted that on March 25, 1982, notice was sent by registered post, it was neither returned nor served. Thereafter, no reason was recorded by the assessing authority that it is not possible to serve notice by tendering the notice to the dealer or by registered post which is mandatory and thereafter direction should be issued for serving the notice by affixation, but no such order was passed by the assessing authority before directing to serve by affixation. Therefore, the service is not proper. Learned Standing Counsel submitted that firstly the notice was sent on March 25,1982 by registered post and when it could not be served, direction was issued to serve by affixation and therefore, the service of the notice was proper.
(3.) I have perused the order of the Tribunal and the authorities below. I have also perused the record of the case which has been produced at the time of the assessment proceedings.;