STATE OF ORISSA Vs. MAHABIR PRASAD AGRAWALLA

JUDGEMENT

(1.) THESE three application have been filed under section 24 (2) (b) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act") by the State or Orissa. Since same question in respect of the same dealer is involved in respect of which a common order was passed by the Sales Tax Tribunal, they are heard together and are disposed of in this common order.

(2.) THE dealer carries on inter-State sale for which he is registered under the Central Sales Tax (Registration and Turnover) Rules, 1957, made under the Central Sales Tax Act, 1956. In respect of years 1978-79 to 1980-81, the Sales Tax Officer initiated proceedings for assessing the escaped turnover of the dealer. Notice to the dealer was sent through the process server of the Sales Tax Officer. The same could not be validly served. Again and attempt was made by which it was affixed on the plea that the dealer refused to accept the same. Thereafter, the Sales Tax Officer, before making enquiry for completing the assessments ex parte, issued notice to the dealer by registered post. The same was returned unserved by the postman with endorsement of refusal by the addressee. Assessment being completed ex parte in the aforesaid background, dealer preferred appeals before the Assistant Commissioner where he assailed the assessment orders on one, amongst other grounds, that the report of refusal by the process server when notice was sent to be served on the dealer for second time, is not correct since the dealer was absent from his residence being at Raipur for medical treatment. At the time of hearing the appeals, learned Advocate for the dealer, while challenging the validity of report of the process server, submitted that the notice should have been sent through postal agency. The Assistant Commissioner held that the refusal of notice as reported by the process server is sufficient and no merits he confirmed the assessment. Dealer preferred appeals before the Sales Tax Tribunal. In view of the amount of turnover involved, appeals were heard by all the three Members together as per the statutory provisions. The chairman gave a separate order and the Judicial Member gave another order. The Accounts Member on consideration of both the orders agreed with the Judicial Member. All the three Member agreed that the notices served by affixture by the process server on refusal by the dealer were not valid. On merit, exepect indicating the submission of learned counsel for the dealer, the Chairman did not come to any definite conclusion. The Judicial Member, however, held that the matters would have been remanded for further enquiry with a direction to afford adequate opportunity to the dealer. Accounts Member agreed to it. However, all the three Members having held that service of notices by the process server was invalid, annulled the assessments.

(3.) MR . A. B. Misra, learned Standing Counsel, submitted, amongst others, that assuming that the service through the process server was invalid, the Chairman found that the intimation was sent by registered post which was refused. This finding of fact was not dissented from by the other two Members. Accordingly, the Chairman's finding :