1. M/s. Jhansi Sahkari Kraya Vikraya Samiti was assessed to sales tax ex parte by an order passed on 3rd August, 1967. The assessment order was served on the co-operative society's accountant on 13th October, 1967. Subsequently, the same assessment order was served on the secretary of the co-operative society on 25th January, 1968. The society filed an appeal on 2nd February, 1968. The office of the appellate court raised an objection that the appeal was beyond time. This was based on computation as if service was effected on 13th October, 1967. The assessee filed an objection as well as an application for the condonation of delay under Section 5 of the Limitation Act. The contention of the society was that service on the accountant was neither valid nor lawful. Hence the actual service on the secretary on 25th January, 1968, was the only relevant and valid date from which the period of limitation for appeal was to be computed. The appeal was thus within time. The Judge (Appeals) held that service on the accountant was valid and dismissed the appeal as barred by time. The application for condonation of delay was also rejected. The assessee went up in revision but failed.
2. At the instance of the assessee, the Judge (Revisions) has submitted this statement of the case for the opinion of this court on the following questions of law:
(1) Whether the accountant of M/s. Jhansi Sahkari Kraya Vikraya Samiti is the applicant's agent within the meaning of Rule 77(l)(a) of the U. P. Sales Tax Rules ?
(2) Whether the service of the ex parte assessment order dated 3rd August, 1967, on the dealer's accountant on 13th October, 1967, is valid and legal service thereof having a binding effect upon the applicant ?
(3) Whether the institution of an appeal on 2nd February, 1968, was within the prescribed period of limitation in the circumstances of this case ?
3. Rule 77(l)(a) of the Sales Tax Rules, as it stood in 1967, provided :
(1) The service of any notice, summons or order under the Actor the Rules may be effected in any of the following ways, namely:
(a) by giving or tendering a copy thereof to the dealer or licensee, or his manager or agent; or.
4. Rule 77-A provides :
Unless otherwise provided in the Act or the Rules anything which is by the Act or the Rules required or permitted to be done by a dealer, except when he is required to attend personally for examination on oath or affirmation, may be done by a lawyer, an accountant or an authorised agent appointed by the dealer in writing in this behalf; and process served on or notice given to such lawyer, accountant or the authorised agent shall be as effectual as if the same had been served on or given to the dealer in person ; and all provisions of the Act or the Rules relating to the service of process on or the giving of a notice to a dealer shall be applicable to the service of process on or the giving of notice to such a lawyer, accountant or the authorised agent.
5. Rule 77-A deals with acts which may be required to be done either by a dealer or by his agent. It specifies the kinds of acts as well as the conditions under which certain persons can act as the dealer's agent or representative. In the next place, Rule 77-A goes on to prescribe the condition under which alone service of notice or process on a person other than the dealer would be as effectual as if the same had been served on the dealer in person ; namely, that the person must be a lawyer, an accountant or an authorised agent 'appointed by the dealer in writing in this behalf'. Thus, persons answering the category of lawyers, accountants or authorised agents appointed by the dealer in writing in this behalf alone are competent to ' accept notice on behalf of the dealer. Service or acceptance of notice by any other class of persons would not be as effectual as if the same had been served on the dealer in person.
6. Rule 77(l)(a) covers the licensee, manager or agent of a dealer. It does not specifically refer to an accountant. An accountant is expressly included in Rule 77-A. To be effective service on an accountant, he must, according to Rule 77-A, be authorised in writing.
7. In the present case, there is no finding that the accountant, on whom the service was effected on 13th October, 1967, was authorised in writing by the dealer to accept notices. Learned standing counsel after going through the record stated that there is nothing on the record to indicate that the assessee had appointed the accountant in writing in that behalf. Consequently, it must be held that the service on the accountant was not valid.
8. We, therefore, answer the questions referred to us as follows :
(1) The accountant of the assessee was not his agent within the meaning of Rule 77(l)(a) of the Sales Tax Rules.
(2) The service of the assessment order on the accountant was not valid and legal service.
(3) The appeal filed by the assessee was within time.
9. The assessee will be entitled to his costs which are assessed at Rs. 200.