V. K. SINGHAL, J. - (1.) THIS writ petition has been filed against the action of the respondents dated March 31, 1993, by which, the seizure of the goods of the petitioner and dispossession from the shop was effected.
(2.) THE petitioner is a dealer under the provisions of the Rajasthan Sales Tax Act, 1954 (for short, "the Act" ). A shop was taken on rent in the year 1977 from Shri Gani Khan and the business was carried on in the name of Babu Lal Ramesh Chandra. THE petitioner is carrying on the business of selling the utensils. It has been submitted that the sales tax due for the years 1986-88 were of Rs. 410 which was deposited on March 30, 1990 and with regard to demand for the period 1982-86 neither any demand notice was served on the petitioner nor any amount was informed to be due from him. The Assistant Commercial Taxes Officer, Ward II, Chirawa, District Jhunjhunu, came to the business premises of the petitioner on March 31, 1993 in the absence of the petitioner and seized the goods lying in the shop and a new lock was put on the shop. The demand of Rs. 3,403 was paid by Shri Rasool Lilgar, landlord, and the key of the shop was also handed over to him. The action of the respondents has been challenged being contrary to the provisions of law. An application was submitted by the petitioner on April 17, 1993 requesting to give the possession of the shop but no action was taken by the respondents. The action of handing over the shop to the landlord has also been challenged beside the action of seizure of the shop by putting a lock on the shop. The respondents have come out with a case that the assessment for the year 1982-84 was finalised on December 29, 1987 and since the petitioner failed to deposit the demand, the action was taken under section 11 of the Act. It has also been submitted that since the petitioner has deposited the tax due the shop has been handed over back to the petitioner. From the file produced by the learned counsel for the respondents it is evident that on December 18, 1987 notices were issued for December 29, 1987. On the said notice the service has been effected on Fateh Singh who was surety. The service on the surety cannot be considered to be a valid service under law. On December 29, 1987, ex parte order was framed creating the demand of Rs. 3,403. 47. From the assessment order and the demand notice it is evident that the original copy as well as the carbon copy are lying in the file which is evident from the record produced by the respondents and thus the contention of the petitioner that the demand notice was not received appears to be correct. The recovery under section II of the Act could be made only if there is a valid service of the demand notice. The demand notice which has been produced shows on the back of it only the signature of Om Prakash and date as January 11, 1988. Even the receipt of the demand notice has not been acknowledged and more so there is no mention of any assessment order having been received along with it. The respondents have been careless in effecting the service and framing the assessment order and ensuring the service of the assessment order and demand notice. The coercive step which has been taken on March 31, 1993 only shows the inactiveness on the part of the assessing authority inasmuch as from March 7, 1988 to January 15, 1993 the time for executing the attachment warrant have been sought to be extended from time to time. After the execution of attachment warrant on March 31, 1993 the shop was handed over to the landlord. On January 29, 1993 the warrant of attachment was shown to the petitioner and served. At that stage it became the duty of the petitioner to find out as to how the demand was created. The application which was submitted by the petitioner has been dealt with leisurely. Firstly, the amount should not have been accepted from the landlord who may be interested in getting the shop vacated and if he is considered to be the representative of the assessee then there should not have been any seizure of the goods and the goods seized should have been released. It is not within the power of the respondents to accept the money from any person they like. On July 28, 1993 the Assistant Commercial Taxes Officer passed the order that if the petitioner deposits the amount then the goods and shop may be released to him. The amount paid on March 31, 1993 was directed to be refunded. In the panchnama it is mentioned that the amount of Rs. 3,403 has been deposited by Rasool Lilgar against the demand while in the proceedings dated July 28, 1993 the said amount has been treated as a security. This also shows the conduct of the respondents as to in what manner they have acted. Since it has been proved that there is not a valid service of the assessment order and demand notice the action of the respondents is declared to be illegal. A cost of Rs. 2,000 (rupees two thousand) is imposed on the respondents, which they would be free to recover from the officer responsible for not effecting the proper service of the notice, assessment order and demand notice and the officer who has attached the shop on March 31, 1993 without verifying the fact of proper service of the assessment order and demand notice and mentioning different fact with regard to the payment of the demand by Rasool Lilgar. The writ petition is accordingly allowed. Writ petition allowed. .;