R.S. Pathak, J.
1. The petitioner carries on business as a dealer in iron and steel. He was assessed originally on 15th June, 1964, for the assessment year 1960-61 under the U.P. Sales Tax Act, 1948. Subsequently, the Sales Tax Officer, Sector III, Kanpur, commenced proceedings against him under Section 21 for that assessment year. The petitioner claims that he did not receive any notice under Section 21, and it was only when a notice dated 14th April, 1965, was served upon him three days later informing him that a date had been fixed for hearing of the case that he came to know that proceedings under that provision had been initiated. The petitioner wrote to the Sales Tax Officer pointing out that no notice under Section 21 had been served upon him and the period of limitation of four years from the end of 1960-61 having run out, the proceedings were without jurisdiction. Aggrieved by these proceedings, the petitioner now claims certiorari against them and prohibition restraining the respondents from continuing those proceedings. Another relief sought by the petitioner is that the third respondent, the Sales Tax Officer (Special Investigation Branch), Kanpur, be directed to return the documents and papers which had been seized from the custody of the petitioner.
2. It appears that the Sales Tax Officer issued a notice dated 29th March, 1965, under Section 21 to the petitioner, but that notice was not served upon the petitioner. According to the report of the process-server, one Mahabir Singh, he went to the business premises of the petitioner in order to serve the notice and found a person sitting there, who refused to take the notice. He left the notice on the premises and returned. It is not disputed that the petitioner was not on the business premises at that time. On 31st March, 1965, the Sales Tax Officer despatched a telegram to the petitioner in which it was stated :
Notice refused, appear with account under Section 21 Sales Tax Act for 60-61 on 11-4-65
3. The petitioner denies receipt of this telegram. The telegram was addressed to the petitioner at his residential premises and also mentioned the address of Lhe business premises.
4. The question which arises upon the instant petition is whether any notice under Section 21 was served upon the petitioner before 1st April, 1965.
5. So far as the first notice under Section 21 is concerned it is said to have been dated 29th March, 1965, and to have been sent through the peon of the sales tax department to the business premises of the petitioner and to have been left there by him. Rule 77 of the U.P. Sales Tax Rules prescribes the different modes of service of a notice issued under the Act. Clause (a) provides that service will be effected by giving or tendering a copy thereof to the dealer or his manager or agent. Admittedly the petitioner was not on the business premises when the peon went there and, therefore, it cannot be said that the notice was served in accordance with the mode prescribed by Clause (a). Clause (b) is in these terms :
(b) if such dealer...or his manager or agent cannot easily be found, by leaving a copy thereof at his last known place of business or residence, or by giving or tendering it to some adult member of his family.
6. Now, there is nothing in the counter-affidavits filed on behalf of the respondents to show that the dealer could not easily be found. Merely because the peon went to the business premises and did not find the dealer present does not mean that the dealer could not easily be found. It does not appear that any attempt was made thereafter by the peon to find out where the petitioner was to be found. The use of the expression 'cannot easily be found' seems to suggest a certain difficulty in finding the dealer. A dealer may not be present at his business premises at a certain point of time, and yet if the business premises are visited again he may be present. What is contemplated by Clause (b) is a case where the dealer cannot be found despite reasonable effort in that behalf. It seems to me that Clause (b) does not cover the service attempted when the peon left the notice at the business premises.
7. As regards the telegram sent by the Sales Tax Officer on 31st March, 1965, I am clearly of opinion that Rule 77 does not contemplate such a mode of service. Mr. M.N. Shukla, learned Junior Standing Counsel, contends that service of the notice by telegram is provided by Clause (b). It is, he says, service by leaving a copy at the place of business of the dealer. To my mind that construction of Clause (b) is not consistent with the scheme of Rule 77. Rule 77 contemplates service of a copy of a notice. . The original notice is not served. Apparently that is maintained on the records of the Sales Tax Officer. It is only a copy of that notice that is served upon the dealer. It has not been shown by the respondents that the telegram is a copy of the original notice. Moreover, when Clause (b) of Rule 77 speaks of leaving a copy of the notice, what is intended is that the copy is left by an officer or servant of the sales tax department and not through the intervention of the postal or telegraphic authorities. If the construction suggested by Mr. Shukla is accepted, it would lead to the result that the provisions of Clause (d), which enable the Sales Tax Officer to effect service by sending a copy to the dealer by registered post, would be rendered redundant. Rule 77 enables service to be effected through the intervention of external agency only in one mode, and that is by registered post. It has not been provided that such service can be effected also by telegram.
8. Accordingly, for all these reasons I am of opinion that the telegram despatched on 31st March, 1965, was not one of the modes of service contemplated by Rule 77.
9. Some argument was raised on the question whether the telegram was received by the petitioner on 31st March, 1965, and whether the language of the telegram could be said to satisfy the requirements of a notice under Section 21, but in the view that I am taking that it was not a mode of service falling within the provisions of Rule 77, it is not necessary to consider these submissions.
10. I am, therefore, of the view that the petitioner was not served with a copy of the notice under Section 21 before 1st April, 1965, and that consequently the assessment proceedings under Section 21 are barred by limitation and, therefore, without jurisdiction.
11. As regards the other relief claimed by the petitioner, namely the return of the books and documents which are said to have been seized from the petitioner's custody by the Sales Tax Authorities, Mr. Shukla on behalf of the respondents has stated that the respondents are prepared to return those books and documents. In the circumstances it is not necessary to grant any relief in that behalf.
12. The petition is allowed. The proceedings under Section 21 of the U.P. Sales Tax Act for the assessment year 1960-61 directed against the petitioner are quashed. The petitioner is entitled to his costs.