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P. Balchand Vs. Commercial Tax Officer, Fourth Circle, Bangalore - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 1419 of 1970
Judge
Reported in[1971]27STC400(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 14 and 14(1); Constitution of India - Article 226; Code of Civil Procedure (CPC), 1908; Mysore Sales Tax (Amendment) Act, 1970 - Sections 13(3); Mysore Sales Tax Rules, 1957 - Rule 43
AppellantP. Balchand
RespondentCommercial Tax Officer, Fourth Circle, Bangalore
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateH.K. Vasudeva Reddy, Government Pleader
Excerpt:
.....first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. - 12,612.60 for the year 1967-68 under the mysore sales tax act, 1957, hereinafter called the 'act'.the said firm failed to pay the tax assessed and demanded. it is therefore clear that the impugned notice is clearly illegal and without jurisdiction......of section 14(1) that only a debtor of the dealer can be directed to pay the money due to the dealer but not the debtor of a partner of an assesses-firm. 4. the impugned notice states the it has come to the knowledge of the respondent that messrs hindusthan drug house are due or will become due certain sums of money to the partners messrs p. kapurchand and p. balchand of messrs hindusthan jewellery mart. p. balchand referred to therein is the petitioner. it is therefore clear that the impugned notice is clearly illegal and without jurisdiction. consequently this writ petition is allowed and the impugned notice dated 8th february, 1968, is quashed. no costs. 5. petition allowed.
Judgment:

Govinda Bhat, J.

1. Messrs Hindusthan Jewellery Mart, Bangalore, a partnership firm - in which the petitioner was a partner - was assessed to tax of Rs. 12,612.60 for the year 1967-68 under the Mysore Sales Tax Act, 1957, hereinafter called the 'Act'. The said firm failed to pay the tax assessed and demanded. Thereupon the respondent issued a notice under section 14 of the Act to Messrs Hindusthan Drug House, Bangalore, which is another partnership firm in which the petitioner is a partner. The petitioner represented to the respondent that monies due to him from Messrs Hindusthan Drug House cannot be recovered towards the tax arrears of Messrs Hindusthan Jewellery Mart under section 14 of the Act and therefore the notice dated 8th February, 1968, may be withdrawn. The respondent having refused to accede to the said request, the petitioner has approached this court for relief under article 226 of the Constitution of India.

2. The contention of the petitioner is that section 14(1) of the Act does not empower the assessing authority to require a debtor of the partner of the assesses-firm to pay the amounts due to the partner to the assessing authority and that under section 14(1) the assessing authority can recover money due from the debtor of the assessee only. Section 14(1) of the Act reads thus :

'14. Recovery of tax from certain other persons. - (1) The assessing authority may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any person from whom money is due or may become due to the dealer or any person who holds or may subsequently hold money for or on account of the dealer to pay to the assessing authority, either forthwith upon the money becoming due or being held at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax or penalty or the whole of the money when it is equal to or less than that amount.'

3. The above provision corresponds to garnishee proceedings under the Code of Civil Procedure by which a debt due to a debtor can be attached. It is clear from the provisions of section 14(1) that if there is any money due or may become due to the dealer, the assessing authority may direct the debtor of the dealer to pay the money to the assessing authority. In view of the definition of the word 'dealer' in section 2(k) of the Act, a firm carrying on business is a dealer for the purpose of the Act. Where the firm is assessed to tax, the partner of the firm does not become a dealer. The partner becomes liable and the tax can be recovered from him by virtue of the provisions of sub-section (3) of section 13 as amended by Mysore Act No. 9 of 1970 read with rule 43 of the Mysore Sales Tax Rules, 1957. Sub-section (3) of section 13 as now amended provides that the tax may be recovered from the dealer or any other person and rule 43 makes the partners jointly and severally liable for the tax assessed on the firm where the firm is dissolved. While sub-section (3) of section 13 has been amended by adding the words 'or any other person' after the words 'from a dealer', no corresponding amendment has been made in section 14(1) of the Act. It is clear from the language of section 14(1) that only a debtor of the dealer can be directed to pay the money due to the dealer but not the debtor of a partner of an assesses-firm.

4. The impugned notice states the it has come to the knowledge of the respondent that Messrs Hindusthan Drug House are due or will become due certain sums of money to the partners Messrs P. Kapurchand and P. Balchand of Messrs Hindusthan Jewellery Mart. P. Balchand referred to therein is the petitioner. It is therefore clear that the impugned notice is clearly illegal and without jurisdiction. Consequently this writ petition is allowed and the impugned notice dated 8th February, 1968, is quashed. No costs.

5. Petition allowed.


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