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Seshayya and ors. Vs. the Assistant Commercial Tax Officer, Gangavati - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberS.T.R.P. Nos. 15 and 16 of 1970
Judge
Reported in(1971)1MysLJ79; [1971]28STC306(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 5, 6, 13(3), 13(4) and 16; Hindu Succession Act; Mysore Sales Tax Rules, 1957 - Rule 42; Income-tax Act, 1961 - Sections 159
AppellantSeshayya and ors.
RespondentThe Assistant Commercial Tax Officer, Gangavati
Appellant AdvocateK.A. Swamy, Adv.
Respondent AdvocateR.S. Mahendra, High Court Government Pleader
Excerpt:
.....is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. - but it would be sufficient if the notice is served on one or more who effectively represent the estate or who are ascertained after diligent and bona fide enquiry by the income-tax officer, to be the legal representatives. suseela sadanandan [1965]57itr168(sc) .it has been laid down in the said decision that if there are more than one legal representative, all of them will be the legal representatives of the deceased assessee and all those legal representatives who effectively represent the estate should be served with a demand notice......act, the sons, daughters and the widow are the heirs of the deceased and therefore they are his legal representatives. since the tax demanded from the deceased govindayya had not been paid, fresh demand notices were served on the three sons of the deceased, but not on his daughters and widow. thereafter, the respondent filed two applications under section 13(3)(b) of the act before the court of the first class magistrate, sindhanoor, and the said applications were registered as criminal misc. cases nos. 20 and 21 of 1969. before the said magistrate, the petitioners were arrayed as the respondents. they contended before the magistrate that the deceased assessee had left two daughters and a widow, besides the three sons and that the proceedings for recovery cannot be maintained against.....
Judgment:

Govinda Bhat, J.

1. These are two revision petitions preferred under section 13(4) of the Mysore Sales Tax Act, 1957, by the three sons of one Govindayya who was assessed to tax under the Act by two assessment orders dated 26th September, 1967, for the periods 1st April, 1965 to 31st March, 1966, and 1st April, 1966, to 31st March, 1967. After the assessment orders were made and demand notices were issued, the assessee Govindayya died leaving behind his three sons who are the petitioners and two daughters and a widow. Under the Hindu Succession Act, the sons, daughters and the widow are the heirs of the deceased and therefore they are his legal representatives. Since the tax demanded from the deceased Govindayya had not been paid, fresh demand notices were served on the three sons of the deceased, but not on his daughters and widow. Thereafter, the respondent filed two applications under section 13(3)(b) of the Act before the court of the First Class Magistrate, Sindhanoor, and the said applications were registered as Criminal Misc. Cases Nos. 20 And 21 of 1969. Before the said Magistrate, the petitioners were arrayed as the respondents. They contended before the Magistrate that the deceased assessee had left two daughters and a widow, besides the three sons and that the proceedings for recovery cannot be maintained against some of the legal representatives only. The learned Magistrate overruled the objections and issued a warrant of attachment of the movables of the present petitioners. Aggrieved by the said orders, the petitioners have preferred the above revision petitions.

2. Sri K. A. Swami, the learned counsel for the petitioners, has urged two grounds before us : firstly, that the recovery proceedings cannot be maintained against three out of six legal representatives of the deceased Govindayya; secondly, that the warrant of attachment of the movables of the petitioners which do not form part of the estate of the deceased assessee is illegal. In our opinion, the petitioners have to succeed on both the grounds.

3. Section 16 of the Act provides for making assessment on the legal representatives of a dealer where he dies before the assessment order is made. Rule 42 of the Mysore Sales Tax Rules, 1957 (hereinafter called the Rules), provides for the liability to tax of a legal representative. The said rule reads :

'42. Liability to tax of a legal representative. - (1) Where any dealer doing business in respect of which tax is payable under this Act is dead, the executor, administrator, successor in title or other legal representative of the deceased shall, in respect of such business, be liable to submit the returns due under these rules, and to assessment under section 5 or 6 and to pay out of the estate of the deceased dealer the tax and/or any penalty assessed or levied as the case may be as payable by the deceased dealer.'

4. The provisions of the above rule read with section 16 of the Act correspond to section 159 of the Income-tax Act, 1961. Under the Income-tax Act, the legal representatives of a deceased assessee are liable to satisfy the income-tax assessed on the deceased to the extent of the estate that has come to their bands. Questions have arisen as to whether the recovery can be made only from some of the legal representatives when the deceased leaves more than one legal representative. It has been held in a number of cases that if there are more legal representatives than one, the notice of demand should be served on all of them; but it would be sufficient if the notice is served on one or more who effectively represent the estate or who are ascertained after diligent and bona fide enquiry by the Income-tax Officer, to be the legal representatives. Vide The First Additional Income-tax Officer v. Mrs. Suseela Sadanandan : [1965]57ITR168(SC) . It has been laid down in the said decision that if there are more than one legal representative, all of them will be the legal representatives of the deceased assessee and all those legal representatives who effectively represent the estate should be served with a demand notice. The estate of the deceased Govindayya can be represented only by the entire body of his heirs and not by the sons alone. In the instant cases it has been alleged and that is not disputed that notices of demand were not served on the daughters and the widow of the deceased assessee. The recovery proceedings under section 13(3)(b) of the Act also have been taken only against some of the legal representatives and not against all who can represent the estate. The principles laid down in the above decision under the Income-tax Act, in our opinion, are equally applicable to recovery proceedings under the Mysore Sales Tax Act. Therefore, the applications made by the respondent against the petitioners have to be rejected.

5. The legal representatives of a deceased assessee, as stated earlier, are liable only to the extent of the estate that has come into their hands. There is no determination by the learned Magistrate that the movables ordered to be attached form part of the estate of the deceased assessee.

6. For the above reasons, these sales tax revision petitions are allowed and the orders of attachment made by the First Class Magistrate, Sindhanoor, are hereby quashed. No costs.

7. Petitions allowed.


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