ORDER
K. Raviraja Pandian, J.
1. The above writ petition is filed for issuance of a writ of certiorari to call for the records on the files of the second respondent herein in appeal No. CST 8/97 dated 9.4.97 confirmed by the third respondent herein in proceedings in M.T.A. No. 426/97 dated 9.12.98 and quash the same in so far as the directions given to the first respondent herein to make fresh revision of assessment for the year 1980-81 (CST) after re-check of petitioner’s accounts and further directions to the petitioner produce accounts as and when called for by the first respondent herein since the limitation prescribed for revision of assessment under Section 16 of the TNGST Act, 1959 had already expired for the assessment 1980-81 (CST).
2. The writ petition is filed against the order of the Appellate Sales Tax Tribunal, who confirmed the order of remand passed by the second respondent – Appellate Assistant Commissioner(CT), Madurai (South) in one of the appeals in Appeal No. 462/97 made in Common order dated 9.12.1998. The assessing officer issued pre-revision notice and revisional assessment order under Section 16 of the T.N.G.S.T. Act. The revised assessment order has been taken on appeal before the first appellate authority, the Appellate Assistant Commissioner Madurai South along with other four cases. One of the contentions raised before the appellate authority in respect of the assessment year 1980-81 was that the pre-revision notice issued by the assessing officer was not in accordance with the statutory provision and the notice has to be regarded as non-est in law and so was the service of revisional assessment order. On this point, the first appellate authority after verifying the records has recorded a finding to the effect that the assessing officer has not followed the procedures prescribed under Rule 52 of the TNGST Rules, 1959 either for issuance of notice or for service of revisional assessment order and that it amounted violation of principles of natural justice. Having recorded such finding, the first appellate authority set aside the assessment orders and directed the assessing officer to recheck the accounts by giving sufficient opportunity to the petitioner and pass orders. That order has been carried on appeal to the Tribunal. The Tribunal after reproducing the above observations of the first appellate authority has stated that as the order was only a remand order, it could see no error in the order and thus confirmed the order of the Appellate Assistant Commissioner. The correctness of the said order is now put in issue before this Court.
3. It is contended by the Mr. Radhakrishnan, learned Counsel for the petitioner that once the appellate authority has held that the service of pre-revisional notice issued by the assessing officer is not as contemplated under Rule 52 of the TNGST Act, the notice goes. Thereafter the revisional proceedings could be initiated by issuing a fresh revisional notice in accordance with law within the time stipulated for reopening of the assessment. Admittedly, in this case the revisional order has been passed by invoking Section 16(1) by the assessing officer on 14.8.1985 and pre-revisional assessment notice is dated 19.7.1985 and the first appellate order has been passed on 9.4.1997 with a finding that the pre-revision notice was not issued in accordance with law. Thus, any further notice would be barred by limitation under Section 16.
4. On the other hand learned Government Pleader submits that the initiation has been made within the period prescribed under the statute. Once initiation has been made, subsequent notice has to be regarded as continuation of the earlier notice for which he also relied on the decision of SHA Bhoormull Buboothmull Jain v. Joint Commercial Tax Officer, Sowcarpet Division, Madras 41 STC 400
5. Heard the learned Counsel appearing on either side and perused the materials on record.
6. I am of the considered view that in order to have a fair disposal of the writ petition, appraisal of the facts of the case is necessary. From the assessment order, it could be seen that the Enforcement Wing authorities inspected the premises of one M. Arumugam alias Sampath on 27.12.1983 and recovered certain materials. The said Arumugam explained the slips in which initial “M.A.” was found referring to “Mohan Agencies”, the petitioner herein. Based on the slips, the assessing officer has come to the conclusion that the petitioner despatched 237 1/2 bags of cardamom during the year 1980-81 and they neither filed any returns nor produced accounts for the purpose of assessment and on that basis, the assessing officer come to the conclusion that there was an escapement of turnover in a sum of Rs. 15,67,500/- which is taxable at 10 percent and a penalty in a sum of Rs. 2,35,125/-. It is seen from the assessment order in paragraph No. 8 that a pre-revisional assessment notice dated 19.7.1985 was issued and served by affixure in the last known place of business since the dealer left the place of business and thereupon confirmed the tax demand of Rs. 1,56,750/- and penalty in a sum of Rs. 2,35,125/-.
7. It is the case of the petitioner that the petitioners were doing business and during 1983, the petitioner closed down the business due to heavy loss and family problems and went to Bombay and employed in a small private concern. The closure of the business has been duly informed to the concerned assessing officer by surrendering the registration certificate. The petitioner came to know about the assessment order for the assessment year 1980-81 only when the petitioner’s sons property at Kerala has been attached by the Kerala authorities pursuant to the order issued by the Tamil Nadu authorities. Thereupon he contacted the respondent authority and applied for a certified copy and filed an appeal. The first appellate authority found that the service of notice and the service of escapement of assessment order is not in accordance with Rule 52 and remitted back the matter for re-check and that order has been confirmed by the Appellate Authority.
8. As already stated, the pre-revision notice dated 9.7.1985 was admittedly served by the mode of affixture, which is evident in paragraph Nos. 8 and 9 of the assessment order, which reads as follows:
8. A pre-revisional assessment notice dated 19.7.85 was accordingly issued. The notice was served by affixture in the last known place of business since the dealers left the place of business. They have not filed their objections till now.
9. In the circumstances, the entire objections are overruled and the dealers are assessed on the escaped turnover of Rs. 15,67,50/- for the year 1980-81 under Section 16(1) of the T.N.G.S.T. Act, 1959 read with Section 9(2) of the C.S.T. Act, 1956 as already proposed. The entire turnover is assessed at 10% under Section No. 8(2) of the C.S.T. Act, 1956.
9. The first Appellate Authority discussed the issue at paragraph No. 6 of its order, which proceeds as follows:
…It is seen that the assessment order is alleged to have been affixed in the place of business in which the appellants were doing the business. The assessment file would not reveal any details as to the efforts taken by the Assessing Officer to serve the order in the place of residence. It is the case of the appellants that he did not do the business and he stopped the business in earlier to the date of affixture. It is the case of the appellants that he did not do the business and he stopped the business in earlier to the date of affixture. It is not known as to why the Assessing Officer straight away attempted to serve the order by affixture when the appellants himself shows that he has closed the business as early as before the date of service by affixture and has gone when the service was effected by affixture, the duplicate copy of the notice should bear the endorsement should invariably be attested by a respectable witness of the locality. The endorsement of such witnesses were not available. Therefore, the mode of service of revisional assessment order adopted by the Assessing Officer is not valid in the eyes of law. The Assessing Officer had not followed the procedures prescribed under Rule 52 of the TNGST Rules 1959. The Hon’ble High Court of Madras in the case of R. Damodaran v. Union of India and Ors. reported in 88 STC 72 has held that “Clause (c) of Rule 52(1) of the TNGST Rules, 1959, is to the effect that “if the address of the dealer is known to the assessing authority the notices should be sent to him by registered post”. Obviously Clause (c) must refer only to residential address and not business address. There is no question of using the word ‘if’ in the case of business address. Such address is found in the application as well as the registration certificate of the dealer. Therefore, the rules contemplates issue of notice to the residential address before resorting to the affixture of notice in conspicuous place in the last known place of business of residence. Clause (b) also contemplated issue of notices to the residential address. Hence by reading all clauses of Rule 52 together, it is clear that a notice should be sent to the residential address when it was found that the dealer could not be served at his business address. It is only thereafter the authority should resort to affixture. The section clearly mention ‘due notice’. It cannot be said “due notice” is given to the dealers only it rule 52 has been properly complied with. The procedures followed by the Assessing Officer in servicing the pre-assessment notice is not in order as per rule 52 of the TNGST Rules 1959 and thus it amounts to violation of principles of natural justice. Hence, the assessment made by without serving the pre-assessment notice on the appellants is null and void.
10. The said order was passed on 9.4.1997. The assessment year is 1980-81. The observation made in respect of the service of assessment order would equally be applicable to service of pre-revision notice dated 19.7.1985. Hence, on 9.4.1997, having held that the service of pre-revision notice dated 19.7.19985 as well as the assessment order dated 18.4.1985 are null and void, the direction given by the authorities to re-do the exercise is hit by the period of limitation fixed under Section 16, which is five years from the relevant assessment year (at the relevant point of time). The decision relied on by the learned Government Pleader in support of his contention in 41 STC 400 was rendered in a totally different context. That was a case in which notice under Section 16 of the Act proposing reassessment was issued to the assessee on 30.3.1972 well within the period of limitation prescribed. The assessment order was served on 3.4.1972, which is beyond the period of limitation. In those factual circumstances of the case, having regard to the statutory provision, this Court held that mere initiation for issuance of the notice would safeguard the period of limitation in favour of the revenue. I am of the view that the said decision is not applicable to the facts of the present case, which is on a totally different set of facts as explained above.
11. In view of the fore-going reasoning, the writ petition is allowed as prayed for. However, there is no order as to costs.