A.K. Sinha, J.
1. This Rule is directed against an order passed by the Additional Member, Board of Revenue, West Bengal, rejecting the petition of revision of the petitioner dated 24th July, 1964 affirming the successive orders passed in appeal from an order of assessment made by the Commercial Tax Officer.
2. The facts set out, briefly, are as follows:
The petitioner was running a railway canteen at Burdwan and Bandel Stations, District Hooghly and he had his head office at 147, Faithfulganj, Kanpur, Uttar Pradesh. It was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act) having registration certificate number BN/55B under the Commercial Tax Officer, the Respondent No. 1 in respect of its business in West Bengal. While carrying on the above business the petitioner submitted return for four quar-ers ending 31st July, 1956, showing Rs. 72,347-14-0 as gross turnover out of which Rs. 45,019-4-0 was claimed as deduction on account of sales on tax-free goods under Section 5 (2) (a) (i) of the Act and the tax amounting to Rs. 1,223-6-3 was paid on taxable balance of Rs. 27,328-10-0.
3. The respondent No, 1, Commercial Tax Officer, started an assessment case being No. A-285/56-57 for the above period which after several adjournments was fixed for hearing on 16th July, 1958. On this date the petitioner filed an application praying for another adjournment on the ground that its Accountant was on leave. This petition, it is stated, was rejected and a 'best judgment assessment' was made in absence of the petitioner on this score by the respondent No. 1.
4. With effect from 1st January, 1959, it is alleged, the petitioner's contract with the Eastern Railway was terminated and the petitioner wound up its establishment at Burdwan and did not hear anything about the assessment case for 1955-56 until 23rd October, 1959, when the petitioner's Accountant appeared and produced the books of accounts for 1955-56, 1956-57 and 1957-58 though assessment of 1955-56 was already completed on 16th July, 1958. On the very date, that is, on 23rd October, 1959, the petitioner's representative from Burdwan informed the petitioner at Kanpur that such an assessment was made for the year 1955-56. It is alleged that the petitioner did not receive any notice of demand or intimation in regard to the impugned assessment after 16th July, 1958 and for the first time on 23rd October, 1959, he came to learn about such ex parte assessment through his representative,
5. Thereafter the petitioner took steps for filing appeal against the said assessment order in respect or 1955-56 3nd an appeal could not actually be filed before 17th November, 1959 which was registered as Appeal Case No. 261 of 1959-60. This appeal was heard by the Assistant Commissioner, Commercial Taxes, Asansol Circle, the respondent No. 3, who dismissed it on the ground of limitation, by his order dated 8th February, 1961. Against this order passed in appeal, the petitioner preferred a revision petition before the Commissioner of Commercial Taxes on 25th May, 1961, being Revision Case No. 92 of 1961-62 which, equally, was dismissed by the Additional Commissioner thus affirming the decision of the First Appellate Authority. As against this, the petitioner preferred a further Revision petition to the Board of Revenue being Revision Petition No. 23 of 1963 but the learned Member of the Board of Revenue by his order dated 24th July, 1964, dismissed the said petition. The petitioner still felt aggrieved and came up to this Court and obtained the above rule and an interim order of jurisdiction on terms.
6. Upon these facts several grounds were taken but the learned Advocate for the petitioner at the hearing raised only 2 points.
7. His first point was that there was no service of notice of demand as required under the Act upon the petitioner and therefore the view successively taken up to the Board of Revenue that the appeal was barred by limitation was bad in law. The second point was that the provisions of Rule 84 of the Bengal Sales Tax Rules, 1941 (hereinafter referred to as the rule) as contained in the proviso to Sub-rule (1) of Rule 84 is invalid and ultra vires.
8. In elaborating the first point, it was contended that the petitioner came to know about the aforesaid order made on 16th July, 195S only on 23rd October, 1959 through his own representative and thereafter he preferred an appeal although the notice of demand as contemplated under Sub-section (3) of Section 11 of the Act was not received by him. Therefore, according to the learned Advocate, sufficient cause was shown to the satisfaction of the authorities concerned, that the appeal could not be preferred within the period of limitation on receipt of the notice. It was argued that, admittedly, the acknowledgment receipt of the registered notice was not forthcoming. Only on a presumption it was concluded by the successive authorities, either in appeal or in revision that this notice under Section 11 (3) must have been served upon the petitioner. It was contended that since the acknowledgment receipt did not come back it was for the issuing authorities to show that such a notice was in fact served personally upon the petitioner as provided in the rule. In the facts and circumstances of the present case, it could not be presumed that the notice must have been served upon the addressee on the expiry of the period normally taken by a registered letter in transit unless the contrary was proved. I am afraid, I cannot agree. Whether or not the notice was served upon the petitioner in accordance with the rule is a question of fact which has been decided successviely by the appellate or the revisional authorities. There is nothing in the findings either of the appellate authority or the revisional authority which involves any question of Jurisdiction or an error apparent on the face of the record. Admittedly in this case the petitioner was staying at Burdwan and the notice was sent by registered post and normally it must have reached the addressee within the time as found by the appellate authority. Even if the acknowledgment receipt did not come back, that by no means could establish that the notice was not served. However, I cannot enter into the merits of such findings as I am not sitting as an appellate authority, As I have already indicated that the finding is that the notice was served by registered post and, even though the acknowledgment receipt did not come back, it was presumed under Sub-rule (2) of Rule 84 that the notice was served. So, there being a positive finding to this effect the question as to whether there was sufficient cause for condoning the delay is a matter exclusively to be considered not by this Court but by the authorities concerned. There was a delay of more than a year in filing the appeal and that the petitioner's only case made out before the authorities that no notice was served, but that he for the first time came to know from his own representative on 23rd October, 1959 about the ex parte order of assessment, was not believed.
9. Then again, from a reading of the petition itself, I think that the petitioner is extremely lacking in bona fides. He made an application before the Commercial Tax Officer for adjournment on 16th July, 1958 and thereafter he did not care to take any information as to what had happened to his application or whether the impugned assessment was made or not. It is equally unnatural for an assessee to remain silent by simply putting a petition for adjournment. This conduct on the part of the petitioner goes very seriously against him. Be that as it may, the question of condonation of delay is a matter, as I have already indicated, to be considered by the successive authorities concerned and the satisfaction to be derived must be the satisfaction of these authorities and not of this Court. These successive authorities were not satisfied as to sufficiency of the cause shown and refused to condone the delay. That being so, this Court is powerless. I, therefore, do not find any substance in the first point raised by the petitioner.
10. As regards the second point, it is very difficult to follow the argument raised by the learned Advocate for the petitioner. Firstly, he wanted to argue that Rule 64 Sub-rule (2) is ultra vires the Constitution, I fail to see how this is so. The learned Advocate could not really point out to me even at the hearing as to which of the articles or which part of the Constitution was being violated by framing of such rule. So in absence of such particulars it is very difficult to appreciate the argument of the learned Advocate and I do not think that the Sub-rule (2) of Rule 84 is involved in any Constitutional difficulties.
11. The learned Advocate then wanted to argue that under Rule 84 (1) the notice has to be served personally. This personal service could not be effected by a mere presumption under Sub-rule (2) as provided by Rule 84. I again fail to see how this is so. This is an age-old rule incorporated in the present Rule substantially from provision of Section 114 of the Evidence Act, as also of Section 27 of the Bengal General Clauses Act This is really a protection given to the official act. It is well settled that such a clause only creates a presumption of service and unless it is rebutted, the authorities concerned are entitled to act upon such presumption as conclusive proof of particular act or transaction. It cannot be said that this sub-rule (2) is inconsistent with Sub-rule (1) (i) of Rule 84. It was open to the petitioner to rebut the presumption but the successive findings are that he has failed to do so. That being the position, the second point, in my view, is equally without any substance.
12. Before I part with this case I must also notice that the learned Advocate also tried to argue that the 'best judgment assessment' itself was bad in law because it was arbitrary, capricious and based on no data. I am afraid I cannot enter into this question because it is well settled that if an aggrieved party has allowed his appeal to be barred by time, he cannot be heard to agitate this point over again which was the subject matter of appeal, in a writ petition in this jurisdiction. So I reject this argument of the petitioner.
13. The result is, the petition fails. The Rule is discharged. But there will be no order as to costs.