The Court emphasized the importance of complying with the mandatory provisions of rules 17 and 19 of Order 5 of the Code of Civil Procedure, 1908, when serving orders of assessment under rule 84(1) of the Orissa Sales Tax Rules.

JUDGMENT

MISRA, C.J. - On the application of the assessee, this Court under section 24(2)(b) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the "Act"), directed the following question to be referred to this Court for its opinion :

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that there had been service of the orders of assessment on the assessee as provided under rule 84(1) of the Orissa Sales Tax Rules ?"

2. The short facts are :

The assessee preferred an appeal against the original assessment. The first appellate authority dismissed the appeal on the ground of limitation by saying that the appeal had not been filed within the statutory period from the date of service of the order of assessment. The assessee had contended that there was no service at all of the order of assessment and the first appellate authority had disposed of this aspect by saying :

"3. It is now to be considered whether the appeal under the provisions of the Act can be admitted after the prescribed period. It is contended by the learned Advocate that the appellant is not aware of the service of the assessment order and demand notices on 20th January, 1973. He was, therefore, shown the endorsement of the process peon wherein it is reported that as the appellant refused to sign the A.D. the same was served in the presence of two witnesses, on 20th January, 1973. As this service is a valid service under the provisions of the Civil Procedure Code, the date of service of the notice is taken as 20th January, 1973. According to the statuary provisions the appeal should have been filed by 19th February, 1973, at the latest. But instead, the appeal has been filed on 27th December, 1974. Since it is beyond my power to condone the delay, the appeal petition is summarily rejected as being barred by limitation and hence not maintainable under the law."

3. The Tribunal in second appeal accepted the fact that there was service.

4. Rule 84(1) of the Orissa Sales Tax Rules provides :

"A notice or requisition under the Act or the Rules may be served on the person therein named either by registered post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908) ........"

5. Admittedly, the procedure adopted for serving the order of assessment here was the second one and not through registered post. The question for consideration is whether the bare report of the employee in the department who was entrusted with the duty of serving the order of assessment can be taken as compliance with the requirements in the Code of Civil Procedure. The relevant rules are rules 17 and 19 of Order 5 of the Code and they provide :

"Rule 17. - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which is was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

Rule 19. - Where a summons is returned under rule 17, the court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may if it has been