[dated 04.07.2024, in V.N.V. Builders Private Limited v. State Tax Officer, Gobichettipalayam, from WA no. 1742 of 2024]
It is trite law that service of notice or order is essentially a question of fact - Union of India v. Pramod Gupta, (2005) 12 SCC 1 : Niranjan Agarwalla v. Union of India, 1960SCC OnLine Cal 111. It is equally true that valid service of notice or order goes to the root of jurisdiction - Gopal Oil Mills v. Assessing Authority, Ludhiana, 1984 SCC OnLine P&H 837; Jaipur Udyog Ltd. v. Commercial Taxes Officer, 1979 SCC OnLine Raj 231 Commissioner of Sales Tax, Maharashtra State, Bombay v. Shrimal Sakharchand, 1984 SCC OnLine Bom 446. It is also relevant to note that knowledge of a proceeding cannot be a substitute for service - Union of India v. Deepak Electric & Trading Co., (2012) 12 SCC 509.
The appellant is at liberty to approach the appellate authority, who is the appropriate authority to examine the above question as to whether there is a valid service of notice or order. If such appeal is filed subject to complying with conditions including pre-deposit the Appellate Authority shall examine the service of notice or order as a preliminary issue and thereafter proceed to decide the appeal on merits.