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Central Glass Factory (Madras) Firm Vs. Special Commercial Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Petition No. 485 of 1964
Judge
Reported in[1967]20STC69(AP)
AppellantCentral Glass Factory (Madras) Firm
RespondentSpecial Commercial Tax Officer and anr.
Appellant Advocate J.V. Srinivasa Rao, Adv.
Respondent Advocate J.K. Sarma, Adv. for Third Government Pleader
DispositionPetition allowed
Excerpt:
- - the sales tax authorities of andhra pradesh after having unsuccessfully issued some notices to the nagpur firm, proceeded to recover the sales tax due by it from the madras firm. as i am not satisfied that d......a writ of execution cannot issue against any partnership property except in a judgment against the firm, partnership property cannot be taken in execution for a separate judgment against one partner.8. this legal impediment equally confronts the government in attempting to recover a sum of money due to it from one of the partners of a firm. the government cannot attach or sell an item of movable or immovable property of the partnership to recover the dues from one partner on the footing that that item of property constitutes the share of the debtor-partner. the government as the creditor of a partner, cannot claim a larger right or interest in the partnership property than the debtor-partner himself is entitled to claim. the remedy of the respondents in the circumstances of this case is.....
Judgment:
ORDER

Gopalakrishnan Nair, J.

1. The writ petitioner is a partnership-firm situated in Madras doing business in the manufacture of glass under the name and style of Central Glass Works. This firm has three partners of which D. V. Shah is one. The firm was constituted under a registered partnership-deed dated 9th July, 1956, and actually started the glass factory at Madras on and from 22nd August, 1956.

2. D. V. Shah, one of the partners of this Madras firm, along with another partner from Nagpur had established earlier a partnership firm in Nagpur for manufacturing glass. That firm also was known as 'Central Glass Works'. Thus, D. V. Shah along with another partner constituted the Nagpur firm, and D. V. Shah and two others unconnected with the Nagpur firm, constituted the Madras firm. D. V. Shah remained the common factor in these two firms.

3. On account of certain inter-State sales, the Sales Tax Authorities of Andhra Pradesh assessed the Nagpur firm to a sales tax of Rs. 1,171.87 nP. in respect of transactions which took place during the period 1st April, 1954 to 6th September, 1955. The Madras firm (petitioner herein) came into being only after this period. The Sales Tax Authorities of Andhra Pradesh after having unsuccessfully issued some notices to the Nagpur firm, proceeded to recover the sales tax due by it from the Madras firm. They attached certain movable and immovable properties of the Madras firm under Section 4 of the Revenue Recovery Act as part of their effort to realise the sales tax due from the Nagpur firm. This has occasioned the filing of this writ petition under Article 226 by the Madras firm asking for a mandamus to compel the respondents to forbear from proceeding against its property to recover the tax arrear due from the Nagpur firm.

4. The respondents resist this petition by stating that the real position is that the Nagpur firm has shifted its business to Madras and that therefore the firm now operating in Madras is liable for the sales tax due from the Nagpur firm. According to them, the Madras firm should be regarded as the same entity as the Nagpur firm and held liable to meet the tax demand.

5. There is hardly anything even in the counter-affidavit filed on behalf of the respondents to show that the petitioner-firm and the assessee Nagpur firm are one and the same in fact. From the averments in the affidavit of the petitioner-firm it appears that the Madras firm is an entirely different entity and that the only common feature between it and the Nagpur firm is that in both the firms D. V. Shah has been a partner. This circumstance alone cannot clothe the two firms with a common identity or a common legal liability so as to enable the respondents to realise from the Madras firm the tax due from the Nagpur firm. The attempted justification of the impugned action of the respondents on the ground of the alleged common identity of the two firms has therefore to be rejected.

6. It is then urged that the partners of the Nagpur firm including D. V. Shah are jointly and severally liable for the tax amount. It is claimed on this basis that the share of D. V. Shah in the petitioner-firm can be attached and sold to realise the tax payable by the Nagpur firm of which he is admittedly a partner. This argument seems to proceed on an erroneous conception of the nature of the interest of an individual partner in the property of an existing partnership. In the eye of law, all the partners are joint owners of the entire partnership property be it movable or immovable. No one partner can point to any tangible item of partnership property as exclusively belonging to him. Therefore, it is not possible in law to proceed against any tangible property of a partnership firm on the basis that it belongs exclusively to one of the partners. Lindley in his book on Partnership, Edn. 10, at page 415, says :

In the absence of a special agreement to that effect all the members of an ordinary partnership are interested in the whole of the partnership property but it is not quite clear whether they are interested therein as tenants-in-common, or as joint tenants without benefit of survivorship, if indeed there is any difference between the two. It follows from this community of interest, that no partner has a right to take any portion of the partnership property and to say that it is his exclusively.

No partner has any such right, either during existence of the partnership or after it has been dissolved. What is meant by the share of a partner is his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. This it is, and this only, which on the death of a partner passes to his representatives or to a legatee of his share....

7. This position has been reiterated in a Full Bench decision of the Lahore High Court in Ajudhia Per shad Ram Pershad v. Sham Sunder A.I.R. 1947 Lah. 13. This principle has also formed the decision of a Full Bench of this Court in A. Narayanappa v. B. Krishnappa A.I.R. 1959 A.P. 380 which arose under the Registration Act. The same principle governs a judgment-creditor who in execution of his decree against an individual partner seeks to take a specific item of partnership property as belonging to his judgment-debtor. Halsbury's Laws of England (3rd Edn., Vol. 28, page 544, para. 1055) states the proposition thus :

As a writ of execution cannot issue against any partnership property except in a judgment against the firm, partnership property cannot be taken in execution for a separate judgment against one partner.

8. This legal impediment equally confronts the Government in attempting to recover a sum of money due to it from one of the partners of a firm. The Government cannot attach or sell an item of movable or immovable property of the partnership to recover the dues from one partner on the footing that that item of property constitutes the share of the debtor-partner. The Government as the creditor of a partner, cannot claim a larger right or interest in the partnership property than the debtor-partner himself is entitled to claim. The remedy of the respondents in the circumstances of this case is to proceed against the property of the Nagpur firm which is the assessee or to proceed against the separate properties of the partners of that firm including D. V. Shah and recover the tax amount.

9. In view of the foregoing, the writ petition is allowed. As I am not satisfied that D. V. Shah has not inspired this writ petition and that he is not trying unfairly to evade or delay payment of the tax, I do not award costs in this writ petition.


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