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Thummalapalli Ramalingeswaraswamy and ors. Vs. Commercial Tax Officer, Tadepalligudem and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit petn. Nos. 774 and 979 of 1965 and 1738 and 1980 of 1966
Judge
Reported inAIR1969AP127
ActsAndhra Pradesh General Sales Tax Act, 1957 - Sections 5
AppellantThummalapalli Ramalingeswaraswamy and ors.
RespondentCommercial Tax Officer, Tadepalligudem and ors.
Appellant AdvocateS. Venkata Reddy, Adv. for O. Audinarayana Reddy, Adv. ;and S. Venkata Reddy, Adv.
Respondent AdvocateVenkatrama Reddy, Adv. for Principal Govt. Pleader
Excerpt:
.....september 1955. and the assessment on the dissolved firm was held on that account to be bad. 3. in this case also there is no provision authorising assessment on a dissolved firm and consequently, the assessment is bad. the result is that the writ petitions are allowed and the 1st respondent is restrained from collecting the tax under the order of assessment which is..........in the andhra pradesh sales tax act or the central sales tax act for assessing a dissolved firm, no assessment can be made on the dissolved firm, and since the assessment order is invalid and can be treated as non est. no collection can be made thereunder. it is unnecessary to consider the first point, as the writ petitions can be disposed of on the second point. their lordships of the supreme court in state of punjab v. jullundur vegetables syndicate, : [1966]2scr457 have clearly held that where at the relevant time there was no provision expressly empowering the assessing authority to assess a dissolved firm in respect of its turnover before its dissolution the order made on a dissolved firm was bad. in that case, the firm was admittedly dissolved before the date of assessment.....
Judgment:

P. Jaganmohan Reddy, C.J.

1. These writ petitions were filed by the different partners of a dissolved partnership firm which came into existence for running a mill which was taken on lease from a Receiver appointed by the Sub Court, Narasaput in O. S. No. 22 of 1946 for a period of two years viz. 11-8-1956 to 10-8-1958. It is the contention of the petitioners that on 14-8-1958. intimation of coming to an end of the partnership and its dissolution was given to the Commercial Tax Officer. Eluru Notwithstanding this it is alleged, an assessment was made on the dissolved firm for the years 1957-58 and 1958-59 under the Andhra Pradesh General Sales Tax Act and the Central Sales Tax Act. One of the partners filed an appeal against the assessment, but since no tax was paid. the appeal was dismissed. In so far as the other partners are concerned. they had became aware of the assessment against the dissolved firm only when notices under the Revenue Recovery Act were issued to them.

2. Several contentions have been raised before us, namely, that as paddy had suffered tax, rice which has been converted from that paddy cannot be taxed within the State under the Andhra Pradesh General Sales Tax Act, and since no tax is leviable under that Act, no tax would be leviable under the Central Sales Tax Act in respect of the same commodity sold in an inter-State sale transaction. The assessment is bad on that account. Secondly, there being no provision in the Andhra Pradesh Sales Tax Act or the Central Sales Tax Act for assessing a dissolved firm, no assessment can be made on the dissolved firm, and since the assessment order is invalid and can be treated as non est. no collection can be made thereunder. It is unnecessary to consider the first point, as the writ petitions can be disposed of on the second point. Their Lordships of the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate, : [1966]2SCR457 have clearly held that where at the relevant time there was no provision expressly empowering the assessing authority to assess a dissolved firm in respect of its turnover before its dissolution the order made on a dissolved firm was bad. In that case, the firm was admittedly dissolved before the date of assessment on 3rd September 1955. and the assessment on the dissolved firm was held on that account to be bad. The reason for so holding was based on the principle that though under the partnership law, a firm is not a legal entity but only consists of individual partners for the time being, for tax law, income-tax as well as sales tax, it is a legal entity, and that on the dissolution of the firm, it ceases to be a legal entity, accordingly, unless there is a specific provision to assess a non-legal entity, such as a dissolved firm, the assessment would be bad. It was further held that there cannot be a distinction on principle between an assessment made on a firm under a proceeding initiated before its dissolution and one made in a proceeding started after the dissolution, and in either case, unless there is an express provision, no assessment can be made on a firm which has lost its character as an assessable entity.

3. In this case also there is no provision authorising assessment on a dissolved firm and consequently, the assessment is bad. Nor has there been an assessment on the individual partners, and therefore the contention that Rule 22 of the A. P. G. S. T. Rules is attracted, also fails. The result is that the Writ Petitions are allowed and the 1st respondent is restrained from collecting the tax under the order of assessment which is bad. There will be no order as to costs.

GGM/D.V.C.

4. Petitions allowed.


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