PATHAK, J. - (1.) THE petitioner is a partnership-firm. It was assessed to sales tax under the U.P. Sales Tax Act and the Central Sales Tax Act respectively for the assessment year 1964-65 by two separate assessment orders made on 27th January, 1966. The assessment orders were made ex parte as no one appeared on behalf of the petitioner before the Sales Tax Officer on the date fixed for hearing. The petitioner filed appeals against the assessment orders on 19th October, 1966, and the appeals were dismissed as barred by limitation by the Assistant Commissioner (Judicial), Sales Tax, by an order dated 25th July, 1967. The petitioner prays for certiorari.
(2.) IT appears that copies of the assessment orders were sent by post under registered cover by the Sales Tax Officer. They were delivered to one R. M. Saxena. The petitioner says that R. M. Saxena is merely a relation of the managing partner but is neither a member of the staff nor has anything to do with the business of the petitioner. He alleges that R. M. Saxena did not hand over the registered envelope and the petitioner came to know of the assessment orders only on 13th October, 1966, when he received certified copies of the assessment orders. The Assistant Commissioner (Judicial) has found that the registered envelope containing the assessment orders was delivered to R. M. Saxena on 22nd February, 1966, that he signed in acknowledgement on behalf of the petitioner, that earlier he had received a copy of the provisional assessment order on 8th October, 1964, and the receipt of that order had not been disputed by the petitioner. He refused to believe that R. M. Saxena had not handed over the registered envelope to the petitioner, when as an educated person he knew the importance of a registered cover received from the Sales Tax Department and had also previous experience of this kind when he had received the provisional assessment order on 8th October, 1964. The Assistant Commissioner (Judicial) declined to accept that the petitioner did not know of the assessment orders until 13th October, 1966, when the certified copies thereof were obtained by him. He held that the assessment orders were duly served on the petitioner on 22nd February, 1966. Rule 45 of the U.P. Sales Tax Rules requires the Sales Tax Officer to send a copy of the assessment order along with the notice of demand to the dealer. Rule 77 empowers the Sales Tax Officer to serve them by registered post. When the copies of the assessment orders had been sent by registered post to the petitioner, the presumption contained in section 27 of the U.P. General Clauses Act comes into operation. Section 27 reads : "Meaning of service by post. - Where any Uttar Pradesh Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." The copies of the orders were sent under a registered envelope addressed to the petitioner. That is not denied. Admittedly, the registered envelope was delivered to R. M. Saxena on 22nd February, 1966. We may take it that that was the date by which the registered envelope would be delivered in the ordinary course of post. Consequently, pursuant to the presumption raised by section 27, the registered envelope must be deemed to have been delivered to the petitioner on 22nd February, 1966. The presumption raised by section 27 is undoubtedly a presumption of fact and open to rebuttal. The petitioner sought to prove that R. M. Saxena did not hand over the registered envelope to the petitioner. That case has been disbelieved by the Assistant Commissioner (Judicial). Consequently, the presumption provided by section 27 remains unrebutted.
(3.) WE may refer to the observations of the Judicial Committee of the Privy Council in Harihar Banerji and Others v. Ramsashi Roy and Others (A.I.R. 1918 P.C. 102), where it was laid down : "............ it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter himself, or that he cannot do so by the hand of another person, or that if another person does sign it on the addressee's behalf the presumption is that it never was delivered to the addressee himself mediately or immediately. For instance, if a servant in the addressee's house saw a notice handed in by the postman carried to the addressee and handed to him, that servant could certify that it was delivered to his master and could, if requested by the master, sign the receipt on the latter's behalf, though he was not the agent of the master authorized to take delivery on his, the master's, behalf." ;