DELTA AQUA FEEDS Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS appeal is preferred by the dealer M/s. Delta Aqua Feeds, aggrieved by the orders of the Appellate Deputy Commissioner (CT), Vijayawada in SPL. No. ELR/268/99 -2000 dt. 7 -8 -2001 dismissing the appeal filed against the orders of Commercial Tax Officer, Bhimavaram in G.I. No. 5739/96 -97 dt. 25.6.98 under APGST Act (In short called the Act). The brief facts of the case leading to filing this appeal are as follows: The appellant is a registered dealer under APGST Act and is in the rolls of Commercial Tax Officer, Bhimavaram. It is in the business of prawn feeds. Final assessment for the years 96 -97 was completed by the Assessing Officer on 25 -6 -98 determining gross and net turnover of Rs. 3,18,63,690 and Rs. 2,42,63,340 respectively. This order was served on one of the clerks of the dealer namely; Sri N. Subba Rao on 25 -6 -98 as per evidence of service available in the assessment file. However, it is the contention of the appellant that it could only come to know of passing and service of the impugned order on much later from the Department after the clerk left the service misplacing the said order. No sooner did it come to know about this, it applied for a copy of the order on 5 -2 -2000 and received the certified copy on the same day. It filed the appeal before the Appellate Deputy Commissioner on 12 -02 -2000, Thus, the appeal was filed nearly after a gap of more than one year and seven months from the date of service of assessment order on the clerk of the appellant but within a period of 7 days from the date of receipt of certified copy from the Assessing officer.

(2.) THE Appellate Deputy Commissioner dismissed the appeal holding that the service on the clerk of the appellant dealer amounts to proper service under Rule 58(a) of the APGST Act. The ADC did not accept the contention of the appellant that there was no valid service of the notice as the same was served on a person not legally authorized to receive the same under relevant Rules to the APGST Rules. As there was delay of more than one year seven months the ADC dismissed the appeal without going into the merits of the case. The dealer is in appeal against the said order.

(3.) THE learned State Representative supported the order of the ADC on the ground that the service on the clerk of the dealer is a valid service. To support his contention, he brought to the notice of the Tribunal that the said clerk has received the copy of the assessment order on 25.6.98 by affixing office stamp of the dealer. He also brought to our notice a letter dt. 28 -10 -03 received from the concerned Assessing officer stating that the dealer has paid the disputed demand of Rs. 1,50,020 vide cheque number 219076 dt. 22.08.98 drawn on Corporation Bank. This cheque was presented in State Bank of India and collected on 26.08.98. The amount was adjusted towards the demand raised against the dealer for assessment year 96 -97. On the basis of this, it was pleaded that the conduct of the dealer in making payment of the tax shows that the dealer had prior knowledge of receipt of the order by his clerk. This amounts to proper service. Therefore, the plea of non service of the order is liable to be rejected. It was further contended that the clerk can be legally treated as an agent of the dealer as an agency can be created either orally or by document. According to him, there was an ad hoc oral agency to receive the order Making a distinction between Rule 54 and Rule 58, the learned State Representative contended that Rule -54 only governs procedure for registration of dealer and other related matters thereto. The same has no application with regard to service of statutory notices and assessment orders governed by Rule -58. Hence Form XXIX prescribed under Rule -54, which a dealer files giving authority to receive notices, orders, etc. is only relevant to such matters as are related to registration of a dealer but not to other matters. He also brought to our notice a letter written by the dealer in response to a reassessment notice staling that the assessment may be completed allowing necessary deduction under Rule 6C. The assessment was accordingly completed. Basing on this, it was pleaded that this amounts to acquiescence to the order passed by the Assessing Officer and waiver of right to appeal. Therefore, there could be no grievance against the said order. Hence the appeal is incompetent.