TaxTMI 
TaxTMI 
2016 (5) TMI 386
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....3, Buffer Godown Compound, Devi Mandir Road, Dasna, Ghaziabad-201001" and requested the registering authority to amend the registration certificate accordingly. The petitioner contends that while applying for change of place of business, the petitioner had indicated that they had shifted to the new place of business on 20.01.2013. According to the petitioner, no action was taken on the petitioner's application inspite of a reminder being issued again on 11.02.2015. 2. The petitioner contends that in the year 2004 ex-parte assessment orders were passed by the assessing authority for the assessment year 2011-12, 2013-14 and 2014-15. According to the petitioner, no notice was served upon them, and that, on this ground, the appeals filed by the petitioner were allowed by orders dated 31.01.2015, 20.02.2015 and 30.05.2015. The assessment orders were set aside and the matter was remitted to the assessing authority to pass a fresh assessment order. The assessment proceedings for the aforesaid years is still pending consideration. The assessment orders were set aside on the ground that the petitioner had no notice of the assessment proceedings, inasmuch as their principal place of b....
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....14 on the ground that a belated application was filed, inasmuch as the petitioner shifted his place of business on 20.01.2013 without previous intimation and that the application for change of place of business was filed after 11 months on 05.12.2013. The impugned order further indicates that the petitioner did not give details of closure of its business at Noida nor filed the filing fee of Rs. 20/-. 8. The ground urged by the petitioner is that no opportunity of hearing was provided. The impugned order is violative of Section 75 of the Vat Act read with Rule 33(1) and (3) of the U.P.Value Added Tax Rules (hereinafter referred to as the "Rules"). Further, the provision of Section 75 is not mandatory and that only an intimation is required to be given by the petitioner and that the said application cannot be rejected on the ground of delay. It was further contended that the petitioner was never served with the impugned order dated 02.09.2014 and that they only came to know for the first time when a counter affidavit in Civil Misc. Writ Petition No. 80 of 2016 was filed. 9. On the other hand, the stand of the respondent is, that the said order was served by affixation at the No....
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....te of registration under this sub7 section shall be without prejudice to any liability for tax or penalty imposable under this Act. Explanation (II)-For the removal of doubts, it is hereby declared that where a registered dealer- (a) affects a change in the name of his business; or (b) is a firm and there is change in the constitution of the firm without dissolution thereof; or (c) is a trustee of a trust and there is a change in the trustees thereof; or (d) is a guardian of the ward and there is a change in the guardian; or (e) is a "Hindu Undivided Family" and the business of such family is converted into a partnership business with all or any of the coparceners as partners thereof, (f) is proprietor of a business and such business is succeeded by successor or successors of its proprietor on account of disability or death of such proprietor. then merely by reason of any of the circumstances aforesaid, it shall not be necessary for the dealer or the firm the constitution whereof is changed, or the new trustees, or the new guardian or, the partners of such partnership business or successor or successors, as the case may....
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....business or joins another business either singly or jointly with other persons; or (h) in the case of a company incorporated under a statute effects any change in the constitution of Board of Directors; or (i) effects any change in the particulars furnished in application for grant of registration certificate under section 17, he shall within thirty days of the occurring of any of the events aforesaid, inform the registering authority in the form and manner, as may be prescribed." 13. A perusal of Section 75 (d) of the Vat Act indicates that where a dealer changes his place of business he shall inform the registering authority in the form and manner as prescribed within 30 days. Rule 33 of the Rules provides the manner for providing the information regarding change of place of business. For facility, Rule 33 of the Rules is extracted hereunder: "33. Information Regarding Change of Business.- (1) The information regrding change of business under section 75, shall be furnished to the registering authority in Form XII along with form VII or VII-G, as the case may be, and shall be signed by the person referred to in sub-rule (6) of rule 3....
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....ficate.(Form-XI) 2. Proof of the occurrence of the event to the satisfaction of Registering Officer. 3. Form VII/VII-G duly filled along with required annexures. 4. Undertaking from sureties for treating Security furnished earlier valid for the purpose of amended constitution of firm in Form-XIII." Rule 6 of the Rules is with regard to the jurisdiction of the assessing authority. For facility, Rule 6 is extracted hereunder: 6. Jurisdiction of Assessing Authority.- (1) If a dealer carries on business within the limits of jurisdiction of only one Assistant Commissioner that officer shall be the assessing authority in respect of such dealer and the place where he carries on business shall be deemed to be his principal place of business. (2) If a dealer other than a casual dealer carries on business within the limits of jurisdiction of more than one Assistant Commissioner he shall, within thirty days of the commencement of business, declare one of the places of his business as his principal place of business in Uttar Pradesh and shall intimate all the Assistant Commissioners within whose limits of jurisdiction his places of busin....
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....e time specified therein, the Commissioner or any officer not below the rank of joint Commissioner, authorized by him in this behalf shall determine the Assistant Commissioner who will be the assessing authority in respect of such dealer and his decision shall be final. (6) If a dealer has no fixed place of business, the Assistant Commissioner within whose limits of jurisdiction he ordinarily resides shall be the assessing authority in respect of such dealer. (7) In a case in which the driver or person-in charge of a vehicle carrying goods referred to in sub-section (1) of section 50, with the documents referred to in rule 58 to carry such goods out side the State and is found not to carry such goods outside the State, the Commissioner shall nominate the assessing authority for assessment and penal proceedings. (8) No dealer, who has once made a declaration under above sub rules or who has failed to make such declaration within the time specified therein, shall be allowed to change the same or, as the case may be, to make a declaration except with the previous written permission of the Commissioner or any officer authorized by him in this behalf, and on s....
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....s would be allowed to change his declaration, namely, the principal place of business only with the previous written permission of the Commissioner. 16. Relying upon Rule 6(8) of the Rules, the respondents contend that the petitioner made a declaration of his principal place of business under Rule 6(1) of the Rules and any change in the principal place of business requires a written permission from the Commissioner, which in the instant case was not done by the petitioner and, therefore, the petitioner's application for change of place of business filed under Section 75 of the Act read with Rule 33 of the Rules could not be allowed and was rightly rejected in view of noncompliance of Rule 6(8) of the Rules. 17. The contention of the learned counsel for the respondents is patently misconceived. Rule 6 of the Rules has no application in the instant case. The application for change of place of business was rightly filed by the petitioner under Section 75 of the Vat Act read with Rule 33 of the Rules in Form No. XII. The petitioner filed the application for amendment of his registration certificate, which it applied under Form No. VII and registration was granted. Column no.6....
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....iness could not be rejected. 19. We are of the opinion that the word "shall" as provided under Section 75 of the Vat Act is not mandatory and is directory in view of section 17 (14) (a) of the Vat Act. We further find that the petitioner's application on the ground of nonfurnishing Rs. 20/- as filing fees was not an incurable defect and that the same could have been cured. The registering authority could not reject the petitioner's application on this ground and should have allowed the petitioner to cure the defect. In view of the aforesaid, the order dated 02.09.2014 rejecting the petitioner's application for change of place of business was wholly illegal and therefore, cannot be sustained. 20. The petitioners have challenged the exparte provisional assessment orders for the months of April to October,2015 under the U.P.Vat Act as well as under Central Sales Tax Act on the ground that no notices were served. It was urged that inspite of having knowledge that the petitioner had changed its place of business from Noida to Ghaziabad, the respondents for reasons best known to them had sent the notices and affixed the same as well as the demand notices at the Noida ad....
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.... would be a travesty of justice if we relegate the petitioner to the alternative remedy of an appeal. We are of the opinion that justice is required to be done at the earliest. We find that there is a total abdication by the respondents in adhering to the process of service of summons under Rule 72 of the Rules. Rule 72 of the Rules has been ignored and a procedure which is not known to law has been adopted. For facility, the Rule 72 of the Rules is extracted hereunder:- 72. Mode of service.- The service of any notice, summons or order under the Act or the Rules may be affected by any of the following methods, namely: (a) Service to be on dealer or person concerned in person when practicable, or on his agent- Wherever it is practicable service shall be made on the dealer or person concerned in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. (b) Service on agent by whom dealer or person concerned carries on business- In a case relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the authority from which the ....
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....y) by whom the house was identified and in whose presence the copy was affixed. (f) Endorsement of time and manner of service- The process server shall, in all cases in which the notice, order or summons has been served under clause (d), endorse or annex, or cause to be endorsed or annexed, on or to the original notice, order or summons, a return stating the time when and the manner in which the notice, order or summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the notice, order or summons. (g) Examination of the process server- Where a notice, order or summons is returned under clause(e), the authority shall, if the return under that rule has not been verified by the affidavit of the process server, and may, if it has been so verified, examine the process server on oath, or cause him to be so examined by another authority, touching his proceedings, and may make such further enquiry in the manner as it thinks fit: and shall either declare that the notice, order or summons has been duly served or order such service as it thinks fit. (h) Simultaneous issue of n....
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.... to have last resided or carried on business or personally worked for gain, or in such other manner as the authority thinks fit. (ii) Where the authority acting under sub clause(i) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the dealer or person concerned is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (iii) Effect of substituted service;- Service substituted by the order of authority shall be as effectual as if it had been made on the dealer or concerned person. (iv) Time for appearance to be fixed;- Where service is substituted by the order of authority, the authority shall fix such time for the appearance of the dealer or the concerned person as the case may require. (j) Service of notice, order or summon where the dealer or person concerned resides within the jurisdiction of another authority- A notice, order or summons may be sent by the authority by which it is issued, whether within or without the State, either by one of its process server or by post to any authority having jurisdiction in....
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....lars required to be stated in a notice, order or summons, and, subject to the provisions of sub clause (iii), shall be treated in all respects as a notice, order or summons. (iii) A letter so substituted may be sent to the dealer or person concerned by post or by a special messenger selected by the authority, or in any other manner which the authority thinks fit; and, where the dealer or the concerned person has an agent empowered to accept service, the letter may be delivered or sent to such agent." 24. Rule 72(a) of the Rules provides that the service of summons is required to be made on a dealer or a person concerned in person or his agent. In the instant case, the report of process server indicates that there was no Firm at the Noida address. At the Ghaziabad address, the process server met one person, who refused to divulge his name but clearly indicated as to which person would receive the notice. The process server, however, indicates service by refusal. In our opinion, the report of the process server is wholly illegal. There is no finding that the person who refused to accept the notice was a dealer or a person concerned in person or an agent empowered to accep....
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..... It would be open to the petitioner to raise such question before the appropriate forum if fresh notices are issued. 29. The recall application for recall of the assessment order was rejected by the assessing authority on the ground that the application was filed beyond the stipulated period of 30 days since service of the assessment order by affixation was made on 17.12.2015 at Noida. The Assessing Authority had also rejected the recall application on the ground that the admitted tax of Rs. 3.3 crore was not deposited which is a mandatory requirement as per Section 32 of the Act. On this issue, we are of the opinion that Assessing Authority committed a manifest error in rejecting the recall application. For facility, section 32 is extracted hereunder:- 32.Power to set aside ex-parte order of assessment or penalty.- (1) In any case in which an order of assessment or re-assessment or rejection of application for registration or order of penalty is passed exparte, the dealer may apply to the assessing authority within thirty days of the service of the order to set aside such order and re-open the case; and if such authority is satisfied that the applicant did no....
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....thin a period of sixty days from the date on which dealer receives the order passed by the Tribunal under section 57." 30. The said provision requires the recall application to be filed within 30 days of the order on the application for setting aside the ex-parte assessment order, which could only be entertained if it is supported by proof of deposit of the admitted tax by the dealer. In the instant case, we find that the assessment orders were served by affixation at the Noida address. The respondents knew very well that the petitioner had shifted its place of business. Therefore, affixation of the assessment order at the Noida address was of no avail. The limitation could not start from that date, i.e. the date of affixation as there was no valid service of the assessment orders upon the petitioner. The limitation of 30 days will start from the date when there is proper service of the order upon the petitioner on which date the petitioner gets knowledge about the assessment orders which in the instant case was lacking. 31. We also find that pursuant to the ex-parte assessment orders, a sum of Rs. 49.82 crores was realized after attaching the bank account which included the ....
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....ving them an opportunity of hearing. In the event, notice is issued by respondent no. 3, it would be open to the petitioner to raise an objection with regard to the territorial jurisdiction and the competency of the said authority to make an assessment. If such an objection is raised, the authority will consider the same and pass an appropriate order. 35. Before parting, we must observe the manner in which the respondents have proceeded with the assessment and recovered the amount from the petitioner's Bank account in haste is deplorable and in gross violation of the provisions of the Act. We find that for the assessment years 2011-12, 2013-14 and 2014-15 ex-parte assessment orders were made without adequate service of notices upon the petitioner. These assessment proceedings were set aside in appeal on the short ground that the service of the summons were sent at the address where the petitioner was no longer carrying on its business. Inspite of this knowledge, the respondents chose deliberately to serve the notice for provisional assessment for the period April to October, 2015 upon the petitioner at the Noida address knowing fully well that the petitioner was not carrying....
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....e-32 of the UPVAT Rules, 2008] Application for Registration [Before filling the form read the instructions] To, Registering Authority, Receipt No. Date Sir, Receipt No. Date -s/o, d/o, w/o -,M/S(name of the firm) status hereby apply for the registration under Section-17 of UP Value Added Tax Ordinance, 2007 and allotment of Taxpayers' Identification Number. For the purpose of registration I furnish the particulars of business as follows: 1.Full Name of applicant 2. Full name of Applicant's father /husband 3. Applicant's present address 4. Applicant's permanent address PIN P N Document 2 Status code of applicant Principal place of business in U.P. with complete address 7. Phone No. with STD Code (if any) 8. Mobile No. (if any) 9. E-Mail ID (if any) 10. Fax No. (if any) Address of the Regd. office/Head 11. (See serial no. 12 of the instructions) PIN Office, if any, situated in or outside U.P. PIN Principal Place of Business, Depot/Branches/Godowns/Warehouses or Manufacturing places in or outside U.P. SI. Full address of Principal Plac....