NAVYA COTTON INDUSTRIES Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS is an appeal filed against the orders of Appellate Deputy Commissioner (CT), Kurnool in Appeal No. 239/2003 -04, dated 21 -01 -2004 arising out of the final assessment orders passed by the Commercial Tax Officer -II, Nandyal in GI No. 741/1996 -97, dated 27 -2 -1998. It is the contention of the appellant that they were not served copies of the assessment order by the Department. The appellant submits that on 10 -9 -2003 they received garnishee notices under Section 17 of the APGST Act, 1957. Thereafter, on enquiry and on request, the appellant was served with Photostat copies of the assessment orders. The appellant went in appeal to the Appellate Deputy Commissioner (CT), Kurnool on 14 -10 -2003, the ADC rejected the admission of the appeal for failure on the part of the appellant to produce any evidence for non -compliance with the procedure prescribed under the Act. Aggrieved by the said proceedings of the ADC, the appellant filed present appeal before this Tribunal.

(2.) IT is the contention of the appellant that the ADC erred in passing the impugned order rejecting the appeal on the ground of limitation without looking into the assessment record and into the contention raised by the appellant that the assessment orders were served on them. It is their contention that the first appellate authority has grossly erred in passing the order on a mistaken impression that the procedure prescribed under Rule 58 of the APGST Rules was followed. The same grounds were advanced before this Tribunal viz., that the Department had failed to serve the assessment order on them. It is the contention of the appellant that they had not authorized any one to receive notices, orders etc., on their behalf under the Act and that they had not filed the declaration in Form XXIX under Rule 54 of the APGST Rules, 1957. Hence, the Department should have served the assessment order on the dealer himself and not on any other person belonging to or working for their Company. According to the counsel for the appellant, the appellant is a proprietary concern and in the absence of any Authorised Person under Rule 54, the assessment order ought to have been served on the proprietor only. Since, the department failed to do so, it is to be taken that they were served the assessment order for the first time on 27 -9 -2003 when photocopies of the assessment order were served on the appellant after they applied for the same. According to him, it therefore follows that the ADC should not have rejected their appeal on the grounds of limitation. The learned counsel has also relied on the judgment of Sales Tax Appellate Tribunal in the case of M/s. Delta Aqua Feeds Vs. State of Andhra Pradesh reported in : 37 STC 262. He has stated that as held by the STAT, the burden lies on the department to ensure proper service of the orders and the fact that no person was authorised under Rule 54 by the proprietor cannot be ignored. According to him, Rules 54 &58 have to be read together and in the absence of any authorization under Rule 54, the assessment order should have been served on the proprietor alone. The service on anyone else cannot be considered to be proper service under the Rules.

(3.) THE learned counsel for the appellant has however disagreed and stated that Sri B. Satyanarayana was not Authorised to collect assessment orders from the Commercial Tax Officer's office. However, when a specific question was put as to whether Sri B. Satyanarayana worked for the firm during the period under question or not, he has not denied that Sri B. Satyanarayana was as employee of the appellant firm.