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Mallick Hashim and Co. Vs. Commercial Tax Officer, Bijapur Circle, Bijapur - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 2556 to 2559 of 1967
Judge
Reported in(1969)1MysLJ160; [1969]23STC317(Kar)
ActsCentral Sales Tax Act - Sections 9(3); Mysore Sales Tax Act - Sections 15(2); Mysore Sales Tax Rules - Rule 38
AppellantMallick Hashim and Co.
RespondentCommercial Tax Officer, Bijapur Circle, Bijapur
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateG.V. Shantaraju, Adv. for E. S. Venkataramiah, High Court Special Government Pleader
Excerpt:
.....the application filed by the petitioner under section 10 of the religious endowments act, 1863 (act xx of 18863). - 5. in that view of the matter, the applications for rectification under rule 38 were good applications......tax is payable under the central sales tax act, if no sales tax would have been payable under the mysore sales tax act if that transaction had been an inter-state sale. 2. it is admitted that had the transactions with which we are concerned in these writ petitions taken place inside the state, no sales tax would have been payable under the mysore sales tax act, and, therefore, as explained by the supreme court in lakshminarasimhiah setty's case ([1965] 16 s.t.c. 231.) under section 9(3) of the central sales tax act, as it now stands, no tax under the central sales tax act was payable with respect to those transactions. 3. so, the petitioners became entitled to the refund of the central sales tax paid under the central sales tax act, as pointed out by this court in govindaraju chetty's.....
Judgment:

Somnath Iyer, J.

1. It is undisputed that the petitioners in these cases were entitled to the refund claimed on the enunciation made by the Supreme Court in State of Mysore v. Lakshminarasimhiah Setty ([1965] 16 S.T.C. 231.) and by this Court in Govindaraju Chetty v. Commercial Tax Officer ([1968] 22 S.T.C. 46; 10 Law Rep. 605.). That principle was that in respect of an inter-State sale, no sales tax is payable under the Central Sales Tax Act, if no sales tax would have been payable under the Mysore Sales Tax Act if that transaction had been an inter-State sale.

2. It is admitted that had the transactions with which we are concerned in these writ petitions taken place inside the State, no sales tax would have been payable under the Mysore Sales Tax Act, and, therefore, as explained by the Supreme Court in Lakshminarasimhiah Setty's case ([1965] 16 S.T.C. 231.) under section 9(3) of the Central Sales Tax Act, as it now stands, no tax under the Central Sales Tax Act was payable with respect to those transactions.

3. So, the petitioners became entitled to the refund of the Central sales tax paid under the Central Sales Tax Act, as pointed out by this Court in Govindaraju Chetty's case ([1968] 22 S.T.C. 46; 10 Law Rep. 605.).

4. Mr. Shantaraju contended that the applications for rectification in all these cases were made only by a partner of the dissolved firm. But the application for rectification under rule 38 of the Mysore Sales Tax Rules is a step in the assessment proceeding and section 15(2) of the Mysore Sales Tax Act makes it clear that for the purposes of making an order in the assessment proceeding, the dissolved firm shall be deemed to be still continuing. So the applications presented to him under rule 38 had to be disposed of by the Commercial Tax Officer as if no dissolution of the firm had taken place.

5. In that view of the matter, the applications for rectification under rule 38 were good applications. But Mr. Shantaraju's contention was that the petitioner in those applications has described himself as an ex-partner of the dissolved firm. The fact that he has so described himself cannot affect the position in any way. If the Commercial Tax Officer was under a duty to dispose of the rectification applications as if the firm had not been dissolved, the fact that the applicant called himself a partner of the erstwhile firm does not alter the position, and the description adopted by the applicant only means that the firm had been in fact dissolved, but does not mean that even for the purpose of section 15(2) of the Act, the firm must be regarded as having been dissolved.

6. So, we allow these writ petitions and direct the Commercial Tax Officer to dispose of the applications for rectification presented by the petitioner according to law, and we further make a direction that the order of refund, if any, shall be made in favour of the dissolved firm and not in favour of the individual partner who made the applications for refund. No costs.

7. Petitions allowed.


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