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236 Goods & Services Tax Cases - Reports [Vol. 1
passed by the second respondent, dated 27-10-2004, was served on the
same date upon the assessee and, hence, there was a delay of 52 days
which was beyond the condonable period of 30 days. On appeal, the
assessee contended that there was proof of service on some unknown
person having signed the acknowledgement on 27-10-2004. The name of
the person and his designations had not been stated and the seal of the
establishment was not affixed. It was further contended that there was no
endorsement by the person who delivered the notice of order. On the basis
of the aforesaid contentions, the assessee’s case was that there was no
valid service of notice of order on 27-10-2004 and, therefore, rejection of
its appeal on the ground of delay of 52 days was illegal. The Appellate
Deputy Commissioner, however, set aside the assessee’s contentions and
confirmed the order passed by the Commercial Tax Officer.
On writ:
HELD
The issue which arose for consideration was regarding the service of the
order of the assessment upon the assessee. This issue had cropped up
because the assessee had filed an appeal before the first respondent and it
had been rejected by the impugned order as being filed beyond the
condonable period of 30 days of filing an appeal. As stated earlier, the appeal
has to be presented within 30 days and further 30 days’ time is granted to
present the appeal and the appellate authority can entertain such appeal,
if it is satisfied that sufficient cause has been made out for condonation of
delay. Therefore, what was required to be seen was whether there had been
proper service of the order of the assessment upon the assessee. [Para 7]
It was seen from records that in the acknowledgement, there was a
signature with date 27-10-2004. The name of the person or the designation
was not found and there was no seal of the assessee company. [Para 8]
A perusal of the Explanation to rule 52(1) shows that there should be an
endorsement by the person who delivers the notice or order of having
tendered or given it and such endorsement will be proof for the purpose of
the abovesaid rule. It was noted in the instant case that there was no such
endorsement by the person who delivered the notice. One fact which had
to be borne in mind was that the order of the assessment was passed on
27-10-2004 and was said to have been delivered to the office of the assessee
on the same day and according to the assessee the distance between the
respondent’s office and its estate office was more than 25 kms. [Para 9]
In view of the above finding to the effect that there was no endorsement by
the person from the respondent department, it had to be noted that there
was no proper service of the order of the assessment upon the assessee in
terms of rule 52(1) of the TNGST Rules. In that view, it had to be taken into
account that the order of the assessment was served upon the assessee only
on 18-11-2004. In such circumstances, the impugned order had to be held
as bad in law and was to be accordingly set aside. [Para 10]
GOODS & SERVICES TAX CASES ❑ JANUARY 20 - FEBRUARY 4, 2010 ◆ 112
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