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A.V. Rajshekarappa Vs. Commercial Tax Officer, Ii Circle, Hubli - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1206, 1210 and 1211 of 1973
Judge
Reported in[1975]35STC379(Kar)
ActsCentral Sales Tax Act, 1956 - Sections 9, 9(2) and 15; Karnataka Sales Tax Act, 1957 - Sections 15 and 15(2)
AppellantA.V. Rajshekarappa
RespondentCommercial Tax Officer, Ii Circle, Hubli
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateM.P. Chandrakantaraj Urs, High Court Government Pleader
Excerpt:
.....charge of fraud is proved. award was set aside. - 1252, 1253 and 1256 of 1967, on the ground that there was no provision in the karnataka sales tax act, the provisions of which had been adopted by the parliament in so far as the procedure for levy and collection of central sales tax was concerned, for assessing and collecting the central sales tax from a dissolved firm and, therefore, the assessments were bad and were liable to be quashed. 5. in the result, these petitions fail and they are dismissed.ordere.s. venkataramiah, j. 1. three orders of assessment under the provisions of the central sales tax act were passed on a dissolved firm which was carrying on business under the name and style 'm/s. makanu malleshappa a. onkarappa & co.' in respect of the assessment years 1960-61 and 1962-63. the petitioner is an ex-partner of the said firm. the said orders of assessment were challenged before this court in three writ petitions, w.p. nos. 1252, 1253 and 1256 of 1967, on the ground that there was no provision in the karnataka sales tax act, the provisions of which had been adopted by the parliament in so far as the procedure for levy and collection of central sales tax was concerned, for assessing and collecting the central sales tax from a dissolved firm and, therefore, the assessments.....
Judgment:
ORDER

E.S. Venkataramiah, J.

1. Three orders of assessment under the provisions of the Central Sales Tax Act were passed on a dissolved firm which was carrying on business under the name and style 'M/s. Makanu Malleshappa A. Onkarappa & Co.' in respect of the assessment years 1960-61 and 1962-63. The petitioner is an ex-partner of the said firm. The said orders of assessment were challenged before this court in three writ petitions, W.P. Nos. 1252, 1253 and 1256 of 1967, on the ground that there was no provision in the Karnataka Sales Tax Act, the provisions of which had been adopted by the Parliament in so far as the procedure for levy and collection of Central sales tax was concerned, for assessing and collecting the Central sales tax from a dissolved firm and, therefore, the assessments were bad and were liable to be quashed. The said plea was accepted by this court and the orders of assessment were quashed. Later on, the Central Sales Tax Act was amended by Central Act 28 of 1969. By section 9 of the said amending Act, all orders of assessment passed in respect of the Central sales tax which had been passed before 9th June, 1969, were validated. Sometime thereafter, the Karnataka Sales Tax Act was amended by Act 5 of 1972 substituting a new section for section 15 of that Act authorising the passing of an order of assessment on a dissolved firm with effect from the date on which the principal Act, i.e., Karnataka Sales Tax Act, came into force. Thereafter on 11th January, 1973, the Commercial Tax Officer issued notices to the petitioner calling upon him to pay the Central sales tax as per the orders of assessment. Aggrieved by the said notices, the petitioner has filed these petitions.

2. Sub-section (2) of section 15, after the amendment, reads as follows :

'When a firm liable to pay the tax or penalty is dissolved, the assessment of the tax and imposition of penalty shall be made as if no dissolution of the firm had taken place, and every person who was at the time of dissolution a partner of the firm and the legal representative of any such person who is deceased, shall be jointly and severally liable to pay the tax or penalty assessed or imposed.'

3. The new section 15 was given retrospective effect from the date on which the principal Act came into force, viz., 1st October, 1957. Hence, it has to be held that it must be deemed to have been in force on the dates on which the orders of assessment for the years 1960-61, 1961-62 and 1962-63 were passed. In view of the provisions relating to validation of assessments found in Central Act 28 of 1969 and the amendment of section 15 of the Karnataka Sales Tax Act, 1957, with retrospective effect by Karnataka Act 5 of 1972, the orders of assessment passed in respect of the years 1960-61, 1961-62 and 1962-63 which were set aside in W.P. Nos. 1252, 1253 and 1256 of 1967 revived and became operative as the ground on which they had been set aside no longer existed. Consequently, all the persons who were partners of the dissolved firm at the time of dissolution became liable to pay the sum due under the orders of assessment. The above view is supported by the Full Bench decision of this Court in Gill and Company (P.) Ltd. v. Commercial Tax Officer, II Circle, Gadag, and Others ([1973] 31 S.T.C. 336.). According to the above decision, there is no necessity to pass any fresh orders of assessment against the ex-partner of the dissolved firm in order to recover from him the tax held to be due under the orders of assessment referred to above.

4. Sri K. Srinivasan, the learned counsel for the petitioner, however, contended that the substitution of section 15 of the Karnataka Sales Tax Act by a new section in the year 1972 by the Karnataka State Legislature cannot be relied upon by the State Government in the instant case because the new section 15 was not on the statute book either on the date when section 9 of the Central Sales Tax Act by which the Parliament adopted the procedure for levy and collection of sales tax found in the State Act for the purpose of levy and collection of Central sales tax was enacted in the year 1956 or on the date when the said section was substituted by a new section by Central Act 28 of 1969. Elaborating his submission, Sri Srinivasan argued that the Parliament must be deemed to have adopted when it enacted section 9(2) of the Central Sales Tax Act in the year 1956, only those procedural provisions available in the general sales tax law of the State as they stood at the commencement of the Central Sales Tax act and must be deemed to have adopted only those procedural provisions in the general sales tax law of the State which were in existence when it amended section 9(2) of the Central Sales Tax Act by Act 28 of 1969 and any future amendment to the general sales tax law of the State made by the State Legislature though with retrospective effect could not be considered as having been adopted by the Parliament. According to Mr. Srinivasan, the acceptance of the contention of the State Government that even the future amendments made by the State Legislature must be deemed to have been adopted by the Parliament, would lead to the upholding of an Act of Parliament amounting to abdication of its essential legislative powers. He, therefore, urged that the ground on which the said orders of assessment were set aside by this court, namely, absence of the power to assess a dissolved firm continued to persist notwithstanding the amendment of section 15 of the State Act. In this connection, my attention was drawn by Mr. Srinivasan to the decision of the Supreme Court in State of Tamil Nadu v. K. A. Ramudu Chettiar & Company : AIR1973SC2230 in which the Supreme Court, while referring to a similar contention urged before it, left the question undecided. But so far as this court is concerned, I am concluded by a Division Bench of this Court in Mysore Electrical Industries Limited v. Commercial Tax Officer, V Circle, Bangalore, and Others ([1971] 27 S.T.C. 559.) in which it was observed that by enacting section 9 of the Central Sales Tax Act, the Parliament not merely adopted the procedural part of the general sales tax laws of the States as in force on the date on which said provision was enacted but also all future amendments made to that part from time to time by the appropriate legislatures. It was also observed in the said case that by adopting such further amendments which related to procedural matters only, the Parliament had not abdicated its essential legislative function. In view of the decision of this court in Mysore Electrical Industries Limited ([1971] 27 S.T.C. 559.), I am of the opinion that section 15(2), which authorities the passing of an order of assessment on a dissolved firm and which has been given retrospective effect, must be deemed as being available to the assessing authority when the orders of assessment were passed. I, therefore, hold that there has been legal validation of the assessments passed in respect of the assessment years 1960-61, 1961-62 and 1962-63 which are questioned here and that they can be enforced against the petitioner without passing any fresh orders in that regard.

5. In the result, these petitions fail and they are dismissed. There will be no order as to costs.

6. Petitions dismissed.


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