Skip to content


Ganesha Narayana Hegde and ors. Vs. Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberCriminal Revision Petition Nos. 470, 471 and 472/1976
Judge
Reported in(1978)7CTR(Kar)79; 1976(1)KarLJ233; [1977]40STC400(Kar)
ActsKarnataka Sales Tax Act - Sections 13(3) and 13(4); ;Code of Criminal Procedure (CrPC) , 1973 - Sections 421; Indian Partnership Act
AppellantGanesha Narayana Hegde and ors.
RespondentCommercial Tax Officer
Excerpt:
.....or person against whom claim has been made, appeal filed by insurer is not maintainable. - the petitioners as well as some of the respondents are the partners of the firm......the act itself provided for the recovery of tax from certain 'other persons', who are debtors to a firm liable to pay tax. such debtors, although neither dealers nor assesses, are none-the-less liable to pay the tax to the extent the amount is due from them to the firm. to meet the case of such 'other persons' that the amendment was made in sub-s. (3) of s. 13 and the words 'or any other person' were added. it cannot, therefore, be inferred that the said words used in sub-s. (3) of s. 13 cover up the case of partners of a firm so as to make them liable to the extent of their personal assets as distinguished from the assets of the firm held by them. 5. the learned counsel for the petitioners also relied on v. v. ali koya haji vs. the asstt. commr. of sales tax, (assessment). that case.....
Judgment:

D.B. Lal, J.

1. These are there are there criminal Revision Petitions presumably under S. 13(4) of the Karnataka Sales Tax Act (hereinafter to be referred as the 'Act') against the order of the J.M.F.C. Siddapur, issuing a distress warrant to the Deputy Commissioner, North Kanara, Karwar, to recover the amount as arrears of land revenue.

2. Since a common question of law and fact arises, these three petitions can be disposed of by a single order.

3. The uncontroverted facts are, that M/s Vigneshwara company is a registered partnership firm, and it is a dealer as much to pay the sales tax. The petitioners as well as some of the respondents are the partners of the firm. The Commercial Tax Officer passed an assessment under against the firm and the proceedings under S. 13(3)(b) of the Act for recovery are being initiated against the partners of that firm. In view of S. 421 of the Code of Criminal Procedure, for which a complaint was filed by the Commercial Tax Officer before a Magistrate, a warrant to the Collector of amount as arrears of land revenue, could be issued. The learned Magistrate has done so and an objection is taken that the said warrant is likely to result in the recovery of amount as arrears of land revenue from the personal assets of the partners as distinguished from the assets that may be held by them on behalf of the firm. The learned counsel for the petitioners pointed out with reference to the The State of Punjab vs. M/s. Jullundur Vegetables Syndicate, that for the purpose of realisation of sales tax, although the firm could be treated a legal entity, none-the-less, the provisions of the Indian Partnership Act regulating the relationship between the partners and their liability to third parties, have, except in so far as those provisions are expressly, or by necessary implication incorporated in the provisions of the Act, no relevance in the proceedings. The learned Magistrate has availed of the provision of that Act contained in S. 25 and has held that the partners are jointly and severally liable to pay the tax, meaning thereby, that the personal property of the partners is also liable. The learned Magistrate draws that inference from S. 25 and says that every partner is liable with all the other partners and also severally for all acts of the firm done while he is a partner. In view of the observation of their Lordships in the State of Punjab (supra), the view taken by the learned Magistrate cannot be sustained. Only such a provision contained in the Partnership Act will be amenable to the proceeding, if the said provision can be construed to be incorporated in the provisions of the Act either expressly or by necessary implication. Only to that extent, in my opinion, the principle, that the firm acts through its partners and that the proceedings can be initiated against the partners in the name of the firm, is to be incorporated in the Act. That being so, the complaint filed by the Commercial Tax Officer against the partners for and on behalf of the firm, will be considered a valid complaint. After all, it was only a matter of detail that either the firm's name was mentioned in the title head of the complaint in the beginning and thereafter its partners were described or in the title head first the partners were described and thereafter it was recited that they were being proceeded for and on behalf of the firm. As such the objection of the learned counsel with reference to the title head of the complaint may not be very material.

4. The crux of the matter is, that the order of the learned Magistrate by itself did not make a distinction between a case where the amount is to be recovered as arrears of land revenue from the assets of the firm or a case here the amount is recoverable as arrears of land revenue not only from the assets of the firm but also from the personal property belonging to the partners. The learned counsel rightly contends that the partners will not be personally liable for payment of tax. Rather their liability shall extend to the assets of the firm that may be found in their possession. Any principle of the Indian Partnership Act making a partner personally liable for the debts of a firm will not be incorporated in the provisions of the Act. For that some express provision in the Act itself could be availed of by the department. No such provision can be pointed out. In that connection, reference was made by the learned Magistrate to S. 15(2) of the Act. But that section applies to a dissolved firm and manifestly the present firm is not a dissolved firm. Similar reference was made on S. 25 of the Indian Partnership Act. But in view of the aforesaid observation of the Supreme Court, that section will not be helpful, in so far as, it could not be informed that the personal property of the partners was also liable for payment of the tax. The learned State Public Prosecutor invited my attention to the words 'or any other person' inserted by Act 9 of 1970 in sub-S. (3) of S. 13 of the Act. The argument was stretched by saying that these words will include even the partners of a firm, which is a dealer. In my opinion, that part of the argument will not be correct. Under S. 14, the Act itself provided for the recovery of tax from certain 'other persons', who are debtors to a firm liable to pay tax. Such debtors, although neither dealers nor assesses, are none-the-less liable to pay the tax to the extent the amount is due from them to the firm. To meet the case of such 'other persons' that the amendment was made in sub-S. (3) of S. 13 and the words 'or any other person' were added. It cannot, therefore, be inferred that the said words used in sub-S. (3) of S. 13 cover up the case of partners of a firm so as to make them liable to the extent of their personal assets as distinguished from the assets of the firm held by them.

5. The learned counsel for the petitioners also relied on V. V. Ali Koya Haji vs. The Asstt. Commr. of Sales Tax, (Assessment). That case related to a dissolved firm and the salary of one of partners was sought to be attached under a distress warrant. It was held that the salary being a personal asset of the partner, could not be attached, as there was no provision in the Sales Tax Act giving a right to that attachment. Similar is the position in the present case. The order of the learned Magistrate cannot be interpreted so as to mean that the personal assets belonging to the petitioners-partners, are liable for payment of tax.

6. In this view of the matter, the order made by the learned Magistrate need be clarified. The warrant issued to the Deputy Commissioner, North Kanara, Karwar, to recover the amount as arrears of land revenue, shall not enable the said authority to recover the amount from the personal assets of the partners including the petitioners. The said warrant shall of course, be executable against them in so far as the assets of the firm may be found in their possession. With this clarification made in the order of the learned Magistrate these three petitions are dismissed.

7. A copy of this order shall be kept in the other connected two petitions.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //