K BABY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE tax revision cases arise from a common order of the Kerala Sales Tax Appellate Tribunal, Thiruvananthapuram in T. A. Nos. 171, 174, 172 and 173 of 1996 dated October 30, 1996. An assessee under the Kerala General Sales Tax Act is the common revision petitioner in all these cases. Before the Tribunal two main contentions were raised on behalf of the assessee; the first with regard to limitation and the second with regard to violation of the principles of natural justice. As far as the first question is concerned the Tribunal found that the pre-assessment notice in respect of all the years had been issued before the expiry of the period of limitation provided in section 19 of the Act and therefore the assessments were not barred by limitation. As far as the second point is concerned, the Tribunal found that the assessee had not been granted an opportunity to verify the seized records and therefore the cases were remanded to the assessing authority after setting aside the assessments for completing them afresh after affording an effective opportunity to the assessee in that behalf. The assessee is aggrieved by the above common order in so far as it relates to the finding with regard to limitation.

(2.) THE Special Government Pleader for Taxes entered appearance for the respondent in these cases. Since the assessments were remanded to the assessing authority for fresh disposal, we have heard learned counsel for the revision petitioner and the respondent at this stage itself for rendering a final decision.

(3.) AS far as the service of pre-assessment notice on the dealer is concerned the finding of the Tribunal is as follows : z" Subsequently, the assessing authority issued a pre-assessment notice under section 17 (3) of the Act for all the four years. The pre-assessment notice for all the four years is dated October 26, 1989. These notices were again sent by registered post to the appellant's residential address as well as to the place of business. The relevant postal covers are available at pages 105 to 112 of the assessment records for the year 1988-89. A perusal of the cover addressed to the appellant's residential address would show that the cover was not accepted by the appellant and it has been redirected to the appellant's place of business. It is evident that the appellant has been trying to evade the receipt of the notice from the sales tax authorities. " From the above the crucial point factually found is that the cover containing the pre-assessment notice was not accepted by the dealer. The question is whether this would constitute sufficient service of notice on the dealer within the framework of section 55b (c) of the Act. What this provision provides is that any notice required to be served on any person under the Act shall be deemed to be duly served if it is sent by registered post to that person at his last known place of residence or business. The question that inherently arises in this context is whether the sending of notice by registered post to that person would be sufficient. Unless the notice is served on the person concerned it cannot be said that the notice has been sent within the meaning of clause (c) of section 55b. But in the present case notice has been sent by registered post and it was not accepted by the dealer. Non-acceptance of cover containing the pre-assessment notice by the dealer is a conscious act and it cannot be said to be an accidental omission on his part. Therefore non-acceptance of notice would amount to refusal to accept the notice in the present case. The conduct of the dealer is a relevant factor in this context. It is found that he had been trying to evade receipt of the notice from the sales tax authorities constantly. In order to substantiate this conduct certain instances were quoted by the Tribunal. A notice in form No. 51 dated March 3, 1989 was issued by the assessing authority directing the dealer to produce "upto date accounts". This notice was acknowledged by him and an adjournment application was filed. Accordingly the case was adjourned to March 27, 1989. Nothing happened thereafter. Again the assessing authority issued a notice on August, 21, 1989, in form No. 50 directing the dealer to produce accounts for the years 1985-86 to 1988-89. The said notice was sent by registered post at the dealer's residential address, but it was also returned "unclaimed". What this Court infer from these circumstances is that when the dealer came to know from form No. 50 notice dated March 3, 1989 which was received by him that the steps were being taken for assessment he thereafter made conscious attempt to evade the service of notice. Notice in form No. 50 is issued under rule 72 of the Kerala General Sales Tax Rules, 1963 for the production of accounts and it is not a notice contemplated under section 19 (1 ). Therefore, it can be imagined that the subsequent avoidance of notice by the dealer is a deliberate attempt to escape from the clutches of proceedings for assessment of escaped turnover for the years 1985-86 to 1988-89. There is no explanation by the dealer why he did not accept the cover containing the pre-assessment notice dated October 26, 1989 sent to him from the Sales Tax Department. Therefore it is obvious that the dealer was consciously avoiding service of notice since it was known that steps were being taken for escaped assessment. From the circumstances discussed above, it is arduous for this Court to hold that the assessing authority has violated the provisions contained in section 55b of the Act. The notice as required under this provision had been issued; but the dispute is only with regard to the service of notice. The Appellate Tribunal had examined the documents available in the case filed and satisfied that the provision had been complied with by the assessing authority. In view of this finding coupled with the conduct of the assessee discussed hereinabove, we are satisfied that there is substantial compliance of the provisions contained in section 55b of the Act which alone is necessary in the starking factual situation. The Appellate Tribunal after evaluating the entire evidence available in the case came to the correct conclusion that the impugned assessments are not barred by limitation. We do not find any justifiable material to disagree with the above factual finding. Ultimately what is involved is only a question of fact decided by the Tribunal. We accordingly dismiss these tax revision cases. Order on C. M. P. No. 3355 of 1997 in T. R. C. o. 217 of 1997, C. M. P. No. 3594 of 1997 in T. R. C. No. 235 of 1997, C. M. P. No. 3647 of 1997 in T. R. C. No. 238 of 1997 and C. M. P. No. 3648 of 1997 in T. R. C. No. 239 of 1997 dismissed. Petitions dismissed. .