Sharda Aggarwal, J.:— The present writ petition has been directed against a common order dated 31st January, 2001 of respondent No. 1 dismissing the petitioner's applications being reference No. 13-14-15-16.SII/97 under Section 45(1) of Delhi Sales Tax Act (in short DST Act), being barred by limitation.

2. Briefly stated that facts giving rise to the present writ petition are that the petitioner, dealing in the business of picture tubes, was being assessed under the Local and Central Sales Tax Act. The assessment order pertaining to assessment year 1984-85 (L & C) had been framed on 31st March, 1989. As the petitioner had failed to produce the statutory forms during the assessment proceedings before the Assessing Authority, the Assessing Authority had created additional demand in the sum of Rs. 5,20,116/- under the Local Act and Rs. 14,817.60 paise under the Central Act for the said assessment year. Similarly, the Assessing Authority raised additional tax demand with regard to the assessment year 1985-86 vide its order dated 30th March, 1990. The demand under the Local Sales Tax Act was raised primarily on the ground that ST-1 Forms in respect of the sales made to the registered dealers were not furnished and certain forms which were submitted were found defective. Aggrieved by the assessment orders for the two assessment years i.e 1984-85 and 1985-86, petitioner filed appeals before the Commissioner of Sales Tax, the First Appellate Authority. The Additional Commissioner of Sales Tax did not allow the production of ST-1 Forms and ‘C’ Forms as it did not find sufficient cause for non-production of the same before the Assessing Authority. Having failed before the Additional Commissioner of Sales Tax, petitioner filed appeals before the Appellate Tribunal, Sales Tax. Appeals pertaining to the assessment year 1984-85 were dismissed by the Sales Tax Appellate Tribunal (in short the Tribunal) vide its order dated 5th November, 1996 whereas the appeals pertaining to the assessment year 1985-86 were dismissed vide order dated 2nd July, 1996. It is against these two orders that the petitioner filed reference applications under Section 45(1) of DST Act for referring the case to the High Court on the questions of law arising out of the said orders. The Tribunal after considering the respective pleas of the parties and taking note of Rule 46 and Section 27 of the General Clauses Act, rejected the reference applications vide its common order dated 31st January, 2001 on the ground of limitation, while observing that he would have considered the petitioner's case for condonation of delay, but, for the reasons that under the scheme of section 45 of the dst act, he did not have powers to condone the delay within 30 days. Aggrieved by the same, the petitioner has preferred the present writ petition.

3. We have heard, Mr. B.B Ahuja, learned senior counsel for the petitioner and Shri H.C Bhatia, standing counsel for the department.

4. As per Section 45(1) of DST Act, any dealer aggrieved of an order passed by the Appellate Tribunal may by a written application seek reference to the High Court on question of law arising from the said order within 60 days from the date of the order. The Appellate Tribunal, if satisfied, that the dealer was prevented by sufficient cause from presenting the application within 60 days from the date of the order, may allow the same to be presented within a further period not exceeding 30 days. The petitioner's case is that the order dated 2nd July, 1996 pertaining to the assessment year 1985-86 and order dated 5th November, 1996 for the assessment year 1984-85, of the Tribunal were not communicated to it and the copies of the orders were for the first time received from the office of the Tribunal on 24th June, 1997, on its application dated 21st March, 1997.

5. The respondents case is that hearing of the appeals pertaining to the assessment year 1984-85 was completed by October, 1996 and the hearing of the appeals for the assessment year 1985-86 was concluded in June, 1996. It is submitted that the orders on appeals for the assessment year 1085-86 were passed on 2nd July, 1996 and a copy of the order was despatched on 3rd July, 1996 to the petitioner and the same was collected on 4th July, 1996 from the Tribunal's Registry under some signatures. The contention is that the copy must have been collected by someone on behalf of the petitioner as in the order of appeals, no third party would have been interested. A copy of the despatch register has been placed on record. Mr. Ahuja, learned senior counsel submits, that, the petitioner denied having collected any such copy from the Tribunal's Registry, or that the signatures on the despatch register were of any of its employees. In this connection, an affidavit of the Deputy Manager of the petitioner company dealing with the sales tax matters was filed before the Tribunal stating that the order for the assessment year 1985-86 and 1984-85 was not received by the petitioner. The contention is, as to what more evidence could have been given by the petitioner in negative. The burden was squarely on the department to prove that the copy of the order was collected by someone on behalf of the petitioner on 4th July, 1996 from the Registry of the Tribunal. It is contended that, as per Rule 46 of Delhi Sales Tax Rules, 1975 (in short the Rules), the order should have been delivered or tendered to the petitioner or its agent or to a person regularly employed by the petitioner in connection with its business. It was for the department to state as to who had collected the copy of the order from the office of respondent No. 1 and whether he was authorised to do so. Petitioner having specifically denied on affidavit that none of its authorised representative had taken delivery of any document from the Tribunal's office on 4th July, 1996, the petitioner had discharged its burden and it was squarely for the respondent to state as to whom the copy had been delivered.

6. We find substance in the submissions of the learned counsel for the petitioner. A look at the copy of the despatch register, placed on record, reveals that it does not even give the number of the appeals. It is also not possible to make out the name of the person who allegedly collected the copy of the order. It is worth appreciating that the outstanding demand in the case of the petitioner for the two assessment years was in lakhs of rupees and it would not have been in the interest of the petitioner to receive a copy and then not proceed further within the stipulated time. The mode of service is provided in Rule 46. It does not provide for service by delivery to some person at the office of the Tribunal unless there is specific authority with that person stating that he is authorised to receive the copy of the order. Sub-rule (2) of Rule 46 of the Rules provides that when a notice or’ summons or order is delivered to the addressee or his agent personally, the serving officer is required to take signatures of the person to whom the copy is so delivered on the original notice itself as acknowledgment of the service. We are in agreement with the learned counsel for the petitioner that in the instant case this requirement of the Rules has not been complied with, while allegedly delivering the copy of the order for the assessment year 1985-86 to some person allegedly on 4th July, 1996 by taking some signatures on the despatch register which were not identifiable.

7. The order dated 5th November, 1996 of the Appellate Tribunal pertaining to the assessment year 1984-85 was allegedly sent to the petitioner by registered post. The petitioner has denied the receipt of any such order. The denial is by way of an affidavit of the Deputy Manager of the petitioner company who had been looking after its sales tax work. The Tribunal has disbelieved this affidavit treating it as a self-serving affidavit and being against the normal course of conduct. Mr. Bhatia, learned standing counsel for the Department has strenuously contended that in view of the provisions under Rule 46(4) and Section 27 of the General Clauses Act, a presumption of service on the addresse is to be raised once the communication is sent by registered post. Rule 46(4) provides that when a service is made by post, it shall be deemed to be effected by properly addressing, prepaying and posting by registered post and unless the contrary is proved, the service shall be deemed to have been effected at the time when notice, summons or order would be delivered in ordinary course by post.

8. Mr. Ahuja, learned senior counsel for the petitioner submits that no doubt this provision raises a presumption of service but the same is rebuttable and the contrary is required to be proved. It is, however, submitted that the contrary in this case being negative i.e the copy of the order was not served, the petitioner could have only denied the receipt of the order and for that an affidavit of the officer of the company has been filed. The submission is that once the petitioner discharged its initial burden by denying the receipt of copy of the order by registered post or otherwise, it was for the Department to prove from the records of the Postal Authorities that the alleged registered document was received by the petitioner. Admittedly, no such evidence of service has been placed on record by the respondent. Learned senior counsel for the petitioner has further brought to our notice that the petitioner company had closed its office in Delhi in October, 1995 and had changed its address prior to March, 1996 and even the registration certificate was surrendered on 27th March, 1996. The factum about its change of address was communicated to the Assessing Officer vide its letter dated 27th March, 1996. Mr. Bhatia, learned standing counsel submits that admittedly the closing of the petitioner's office in Delhi and its changed address was not communicated to the Appellate Tribunal and admittedly there was a chowkidar at the Delhi Address of the petitioner and the copy of the order, sent under registered post, must have been received by the Chowkidar. No doubt, according to the petitioner, a Chowkidar was available at its Delhi Address, but a Chowkidar, in any case, cannot be taken as an authorised person as per Rule 46. Otherwise also, the presumption of service is rebuttable, and the petitioner has denied the receipt of any such communication on affidavit and has discharged the initial burden.

9. The Department has failed to prove, by summoning the postal records, that service of registered letter was effected on any person duly authorised by the petitioner company. Mr. Bhatia, learned standing counsel for the respondent has relied upon AIR 1989 SC 630 M/s. Madan and Co. v. Wazir Jaivir Chand and Anr. AIR 1970 Mysore 77, Mrs. Achamma Thomas v. Fairman for the proposition that if a communication is sent by registered post, a presumption is to be raised against the addressee. Learned senior counsel for the petitioner has also referred to a number of judgments for the proposition that presumption of service is rebuttable. In our considered view, it would not be worthwhile to refer to the authorities cited by both the parties as none of them is applicable on facts to the present case. The law is well settled that each case depends on its own facts and even a close similarity between one case and the other is not enough as even a single significant detail may alter the entire aspect. In deciding such a case, one should avoid the temptation to decide the matter (as said by Cordozo) by matching the colour of one case with the colour of another. It was so held in (1962) 44 ITR 689(SC) K.T.M.T.M Abdul Kayoom & Anr. v. Commissioner of Income Tax.

10. Mr. Bhatia, learned standing counsel for the department further contends that it is inconceivable that the petitioner, in case, had not received the order, would not have enquired about the fate of the appeals pending before the Appellate Tribunal which had been argued in June, 1996 and October, 1996, specially when the petitioner was represented by a seasoned counsel who regularly used to appear before the Tribunal. We do not find any force in these submissions. The counsel was under no obligation to make enquiries, collect the order and communicate the same to the petitioner.

11. The respondent further raised the plea that the writ petition itself suffers from delay and latches and should not be entertained. In view of the fact that two orders dated 2nd July, 1996 and 5th November, 1997, of the Tribunal were not served on the petitioner prior to 24th June, 1997, we are not inclined to throw away the petition on the technical ground of latches.

12. In view of the above discussion, we allow the writ petition and condone the delay in filing the applications under Section 45(1) of DST Act and remit the case back to the Tribunal for deciding the petitioner's applications for reference, on merits.

13. During the pendency of the petition, on petitioner's depositing a sum of Rs. 6 lakhs with the Authorities, further recovery proceedings were stayed. It is made clear that this stay would continue to operate till the decision of the reference applications on merits by the Appellate Tribunal. Thereafter, it will be for the Tribunal to decide whether recovery of the additional demands is to be stayed or not.

14. The writ petition is disposed of accordingly. No order as to costs.