A presumption of service created by a rule is valid and can be used to establish that a notice was served, even if the acknowledgment receipt is not forthcoming.

ORDER : - 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 quarers 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 Sec. 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 ana 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 of 1955-56 and 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 mis 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 la