THE HONOURABLE SRI JUSTICE GODA RAGHU RAM AND THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION No.13466 of 2009 Dated:07.09.2011 Between: M/s.Laxmi Rice Mill, Guntur Road, Piduguralla rep., by its Proprietrix Mrs.Bonumukkala Bhagya Lakshmi …Petitioner And: The Commercial Tax Officer, Piduguralla …Respondent THE HONOURABLE SRI JUSTICE GODA RAGHU RAM AND THE HONOURABLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION No.13466 of 2009 ORDER: (per Hon’ble Sri Justice N.Ravi Shankar) In this writ petition under Article 226 of the Constitution, the petitioner is questioning the validity of the assessment proceedings dated 13.04.2009 vide TIN No.28570126049/2008-09 issued by the Commercial Tax Officer, Piduguralla i.e. the sole respondent herein. 2. Heard the learned counsel for petitioner and the learned Government Pleader for Commercial Taxes. Having regard to the submissions made by both sides, it has become necessary to mention all the details pertaining to the matter for expressing our opinion. 3. The petitioner is the proprietrix of a rice mill called M/s.Lakshmi Rice Mill at Piduguralla. She is a registered dealer under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 (for short ‘Act’). By the impugned assessment proceedings the respondent assessed the petitioner’s turnover for the assessment year 2008-09 and fixed her total suppressed turnover at Rs.1,36,26,600/- and levied a tax of Rs.5,45,064/-. The petitioner is questioning the impugned assessment on two grounds. 4. The first is that she has not been served with any show cause notice and she was not given any opportunity to contest the claim of the revenue and that the respondent passed the impugned assessment order in total violation of the provisions of the Act and also the rules framed under it and principles of natural justice and therefore it is illegal. The second ground relates to the merits of the assessment. She says that she has already reported her exact turnover and the turnover fixed by the respondent is totally baseless and is not supported by any evidence. So far as this second ground is concerned, the respondent in his counter contested the same showing that it is based on inspection and enquiry. Thus this second ground involves disputed questions of fact and cannot be gone into in this writ petition and the petitioner ought to have worked out her remedy based on the second ground by way of statutory appeal before the concerned appellate Deputy Commissioner under the Act. Thus this writ petition cannot be entertained on the second ground. 5. Coming to the first ground, it is based on the alleged violation of the procedure prescribed by the Act and the rules made thereunder in making assessments and since this Court can go into the same and as the matter is of 2009, we propose to deal with this ground only. 6. The grievance of the petitioner is that she was not served with any show cause notice and no opportunity was given to her to represent her case by the respondent before passing the impugned assessment order. A perusal of the assessment order dated 13.04.2009 in question would show that a show cause notice dated 13.03.2009 has been issued to the petitioner and it was served on the dealer on 16.03.2009 inviting her to file her objections within the prescribed period and as no objections were received the respondent proceeded to pass the impugned order. This service of show cause notice is disputed by the petitioner. It must be mentioned here itself that the show cause notice copy was produced by the learned Government Pleader in the record and it shows that seven days time was given for filing objections. The impugned order was passed on 13.04.2009 and it shows that sufficient time was given before passing the impugned order. 7. In para 3 of the counter of the respondent, it is stated that the show cause notice dated 13.03.2009 proposing to levy tax on the suppressed turnover was served on 16.03.2009 on the father of the proprietrix (i.e. the petitioner) in the mill premises itself and therefore the petitioner cannot say that show cause notice was not served on her. 8. Rule 64 of the A.P. Value Added Tax Rules, 2005 speaks of mode of service of orders and notices and this is now relevant to resolve the controversy under the first ground. The learned counsel for the petitioner says that this rule 64 has not been complied with by the department in the petitioner’s case and whereas the learned Government Pleader says it has been complied with. Rule 64 has now to be seen and it reads as follows: “Mode of Service of orders and notices 1. Unless otherwise provided in the Act, or these Rules, a notice or other document required or authorized under the Act or these Rules to be served shall be considered as sufficiently served,- a) on a person being an individual other than in a representative capacity if- i) it is personally served on that person; or ii) it is left at the person’s usual or last known place of residence or office or business in the State; or iii) it is sent by registered post to such place of residence, office or business, or to the person’s usual or last known address in the State; or b) on any other person if- i) it is personally served on the nominated person; or ii) it is left at the registered office of the person or the person’s address for service of notices under the Act; or iii) it is left at or sent by registered post to any office or place of business of that person in the State; iv) where it is returned unserved, if it is put on board in the office of the local chamber of commerce or traders association. 2. The certificate of service signed by the person serving the notice shall be evidence of the facts stated therein.” It may be noted that Rule 64(1) opens with the words “unless otherwise provided in the Act or these Rules” indicating that a provision can be made in the Act or these Rules making a deviation from the Rule 64 as it stands regarding the procedure for service of notice or on the persons to whom it should be served. No provision in the Act or these Rules is brought to our notice to show that any deviation has been made regarding the above aspect. Hence we rely upon Rule 64 as it stands to resolve the controversy in this writ petition. 9. The petitioner is an individual and therefore her case would fall under Rule 64 (1). She has not been served personally even according to the department and she has admittedly no authorized person. The version of the department however is that the show cause notice was served on the petitioner’s father in the mill premises on 16.03.2009. Therefore her case would fall under Rule 64(1)(a)(ii) which says that service of a notice would be sufficient service if it is left at the person’s usual or last known place of residence or office or business and in the present case it has been served on the petitioner’s father in the mill premises i.e. the business premises of the petitioner. We are of the opinion that the words “if it is left at the person’s usual place of business” would also include service of notice on any individual connected to the dealer either by relationship or in business and present in his or her business premises. Here the notice was served on petitioner’s father who was living in a residence even according to the petitioner in the mill premises and that can be treated as sufficient service as petitioner’s father is connected to her by relationship which is a close relationship. It may be noted that service of notice on a person connected to the dealer by relationship or in business stands on a much better footing than merely leaving the notice at the business premises. 10. It may however be noted that whether there was service of notice or not as required by Rule 64 is a question of fact which has to be decided on the facts of each case and we cannot lay down any rule of universal application but as will be seen in the circumstances of this case, it can be concluded that the notice was served on the petitioner’s father in the mill premises who was residing there and that is sufficient service as he is connected to the petitioner by close relationship. The petitioner raised a dispute regarding her relations with her father and pleaded that her father did not inform her about the notice and these pleas of petitioner are mentioned in her reply affidavit and also in an earlier order passed by this Court and we will advert to that aspect a little later. 11. Regarding compliance of Rule 64 the learned counsel for the petitioner however pointed out that the department has not filed the certificate contemplated under Rule 64 (2). It may be noted that non filing of this certificate is not fatal in each and every case for the simple reason that Rule 64 (2) only says that such certificate shall be evidence of facts stated therein. To be precise it should be noted that Rule 64 does not say that the certificate contemplated under Rule 62(2) should be invariably filed whenever a dispute is raised regarding the service of notice by the dealer. Thus this certificate constitutes only a piece of evidence but if the circumstances of the case otherwise show that there is service of notice as contemplated under Rule 64 (1) the non-filing of such certificate by itself cannot be a minus point for the department to negative its case. 12. In the present case the learned Government Pleader produced the relevant record to substantiate the department’s plea and it shows that the show cause notice was served on Medam Konda Reddy on 16.03.2009 and it contains his signature. Of- course the place of service is not mentioned beneath his signature but that does not matter. In para 5 of her reply affidavit dated 28.07.2009 the petitioner made the following averment regarding the residence of her father in the mill premises. “It is also essential to submit that the rice mill is a leased premises. It was owned by one Mr.Gunda Narayana who leased the same to Mr. Boddu Srinivasa Reddy in turn subleased the mill to me for working the paddy into rice and byproducts. Thus Sri Medam Konda Reddy has nothing to do with my business. It is also necessary to submit that there is residence in the mill since Medam Konda Reddy was unable to live in a separate rented house and there are no others to look after him, my husband asked him to live in the residence.” 13. The above averments in the reply affidavit of the petitioner would show that her father Konda Reddy was residing in a residence situated in the mill premises itself and this more probablizes the department’s version. To wriggle out of this situation the petitioner earlier came up with the plea that her father had some animosity towards her and because of that he did not hand over the show cause notice to her. In-fact such a plea was taken when the matter earlier came up before a Bench presided over by the Hon’ble the Chief Justice and this is evident from the order dated 22.07.2009 found in the proceeding sheet of this writ petition. “The learned Advocate for the petitioner has submitted that the service of show cause notice dated 13th March, 2009 was effected upon the father of the Proprietrix of the petitioner, who was incidentally present in the rice mill. It has been further submitted that the Proprietrix of the petitioner rice mill is having animosity with her father and, therefore, he did not hand over the notice to her. The learned Advocate for the petitioner prays for time so as to explain the Court as to how the Proprietrix’s father, who is having animosity with her, was present in the rice mill. Stand over to 12th August, 2009.” 14. Thereafter the matter was adjourned to enable the petitioner to show as to how her father was inimically disposed towards her. In para 4 of her reply affidavit the petitioner stated that her father contracted several debts and lost his properties and because of the same her relations with her father and the members of her parents family became strained and that is why her father did not give her the show cause notice to her to offer her explanation. This is on the face of it can be said to be a lame excuse invented as an after thought and does not inspire confidence. What emerges from the above reply affidavit is that the petitioner’s father Medam Konda Reddy was living in an accommodation in the mill premises itself i.e. the business premises of the petitioner when the show cause notice was served on him. In view of this the petitioner’s plea that her father was incidentally present at the mill premises when notice was served on him cannot be accepted as it transpires from the reply affidavit of the petitioner herself that the residence where he was living is in the mill premises itself. It is highly improbable to believe that the petitioner did not have notice of the same from her father as in all probability no father will act in a manner to harm the interests of his daughter though he may have lost his properties. 15. At the risk of repetition, it can be concluded that service of notice on a person connected to the petitioner by close relationship, as in this case, and staying in a residence in the mill premises would stand on a much better footing than simply leaving the notice at the business premises which would also be sufficient compliance of Rule 64(1)(a)(ii) and therefore the petitioner cannot complain that she had no notice of the show cause notice and was not given an opportunity. 16. For the aforesaid reasons, we find no merits in this writ petition and accordingly it is dismissed. No costs. ________________________ GODA RAGHURAM, J ______________________ N.RAVI SHANKAR, J 7th September, 2011 Vjl/CVRK