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The State of Andhra Pradesh Vs. Pachipulusu Venkata Subba Rao and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberTax Revision Case No. 23 of 1965
Judge
Reported in[1970]26STC27(AP)
AppellantThe State of Andhra Pradesh
RespondentPachipulusu Venkata Subba Rao and Co.
Appellant AdvocateO. Adinarayana Reddi, Adv. for ;Principal Government Pleader
Respondent AdvocateD.V. Sastry, Adv.
DispositionPetition dismissed
Excerpt:
.....assessee to produce the account books on 28th march, 1961. this notice was issued in the name of messrs pachipulusu venkata subba rao and not in the name of pachipulusu venkata subba rao and co. the commercial tax officer treating that refusal as sufficient proceeded to pass the assessment order according to the best of judgment under section 14(1) read with rule 17(6) and held, by his order of assessment dated 31st march, 1961, the turnover to be of the order of rs, 7,34,252-8-6. the order on the face of it seems to have been passed only against messrs pachipulusu venkata subba rao proprietary concern and not against the firm which as stated above is pachipulusu venkata subba rao and co. according to that rule, in cases where returns are submitted but the commercial tax officer is not..........be enforced.2. the material facts in order to appreciate the contention raised before us are that messrs pachipulusu venkata subba rao and co. is a firm transacting business in cloth at vijayawada. pachipulusu venkata subba rao, who is one of the partners of the said firm, also has his personal business which he carries in the name and style of messrs pachipulusu venkata subba rao.3. messrs pachipulusu venkata subba rao and co., the firm, filed a return in regard to their turnover for the assessment year 1956-57. according to this return the turnover was rs. 5,82,828-10-0.4. since the commercial tax officer was not satisfied with the correctness or completeness of this turnover, he issued a notice under rule 12 calling upon the assessee to produce the account books on 28th march, 1961......
Judgment:

Gopal Rao Ekbote, J.

1. This sales tax revision is directed against the order of the Sales Tax Appellate Tribunal made in Tribunal Appeal No. 1018 of 1963 on 16th April, 1965, whereby the Tribunal allowed the appeal and held that the assessment order passed on Messrs Pachipulusu Venkata Subba Rao and Co. is illegal and cannot be enforced.

2. The material facts in order to appreciate the contention raised before us are that Messrs Pachipulusu Venkata Subba Rao and Co. is a firm transacting business in cloth at Vijayawada. Pachipulusu Venkata Subba Rao, who is one of the partners of the said firm, also has his personal business which he carries in the name and style of Messrs Pachipulusu Venkata Subba Rao.

3. Messrs Pachipulusu Venkata Subba Rao and Co., the firm, filed a return in regard to their turnover for the assessment year 1956-57. According to this return the turnover was Rs. 5,82,828-10-0.

4. Since the Commercial Tax Officer was not satisfied with the correctness or completeness of this turnover, he issued a notice under Rule 12 calling upon the assessee to produce the account books on 28th March, 1961. This notice was issued in the name of Messrs Pachipulusu Venkata Subba Rao and not in the name of Pachipulusu Venkata Subba Rao and Co. which was the firm and the assessee. The notice was tendered to a person who was found working in the shop of the said firm. He refused to accept and, therefore, it was returned. The Commercial Tax Officer treating that refusal as sufficient proceeded to pass the assessment order according to the best of judgment under Section 14(1) read with Rule 17(6) and held, by his order of assessment dated 31st March, 1961, the turnover to be of the order of Rs, 7,34,252-8-6. The order on the face of it seems to have been passed only against Messrs Pachipulusu Venkata Subba Rao proprietary concern and not against the firm which as stated above is Pachipulusu Venkata Subba Rao and Co.

5. After the said order was passed, he issued form B3 notice. This notice was issued in the name of Messrs Pachipulusu Venkata Subba Rao and Co. It was, however, served on Pachipulusu Venkata Subba Rao, who was one of the partners of the firm.

6. Aggrieved by that order, Pachipulusu Venkata Subba Rao on whom the notice was served, preferred the appeal under the name and style of Messrs Pachipulusu Venkata Subba Rao. The Assistant Commissioner of Commercial Taxes rejected the appeal holding that the non-mention of the words ' and Co.' is only an error and does not vitiate the proceedings. Dissatisfied with that order of the Assistant Commissioner of Commercial Taxes, Messrs Pachipulusu Venkata Subba Rao carried the matter in appeal to the Sales Tax Appellate Tribunal. The Tribunal by its order under revision accepted the contention of the appellant that no notice was served upon the firm and, therefore, the order of the Commercial Tax Officer dated 31st March, 1961, is illegal and cannot be enforced against the firm. It is this view that is now assailed in this revision by the department.

7. The principal contention of the learned Government Pleader is that the notice was properly issued and validly served. The Commercial Tax Officer's order, therefore, cannot be said to be illegal or unenforceable.

8. In order to appreciate the implications of this contention, it is necessary to mention that the notice under Rule 12, which was issued not in the name of the firm but in the name of the proprietary concern, was tendered to a person who has not been named but who was found working in the shop of the firm. As the person to whom the notice was tendered refused to accept it, it was returned with an endorsement. The endorsement does not disclose as to who that person was. It is also silent as to whether the person was the manager or the agent of the firm. Admittedly he was not a partner of the firm.

9.The short question therefore for our consideration is whether the notice, which was issued in the name of Messrs Pachipulusu Venkata Subba Rao and not in the name of Pachipulusu Venkata Subba Rao and Co. is valid; and secondly, whether the service of such a notice on an unknown person, who is not shown to be either a manager or an agent, can be said to be a proper service.

10. Now, under Rule 58, the service of a notice may be effected in one of the four ways mentioned in that rule. The first mode is ' by giving or tendering it to such dealer or licensee or his manager or agent'; secondly, 'if such dealer or licensee or his manager or agent is not found by leaving it at his last known place of business or residence or by giving or tendering it to some adult member of his family' ; thirdly, 'if the address of such dealer or licensee is known to the assessing authority, by sending it to him by registered post ' and finally, 'if any or all of the modes aforesaid is not practicable, by affixing it in some conspicuous place at his last known place of business or residence.

11. This rule relates to the service of the notice. For the issue of a notice, it is Rule 12 which is applicable. According to that rule, in cases where returns are submitted but the Commercial Tax Officer is not satisfied with regard to its correctness or completeness, he is directed by that rule to give the dealer a reasbnable opportunity of proving the correctness or completeness of the return. In order to give a reasonable opportunity to the dealer, the dealer must be served with a notice. The dealer being the firm in this case, the notice ought to have been directed in the name of the firm. It will thus be clear from what is stated above that not only the notice was not issued in the name of the firm but was wrongly issued in the name of the proprietary concern of a partner, which has nothing to do with the assessment in question and was sought to be served upon a person who has not been shown to be either the manager or the agent of the firm which was the assessee. It is also seen that the notice was neither given nor tendered to any of the partners of the firm including the proprietor of the proprietary concern, who was one of the partners. We have, therefore, no hesitation to hold that the issue of the notice was improper and the service also was not in accordance with Rule 58. The proceedings thereafter conducted therefore are vitiated as it should be deemed that no notice was issued and served in the name of the dealer which was in this case the firm. It is not doubted that an assessment order, whether made by a best judgment or otherwise, would be illegal and ineffective, if passed without the issue and service of notice on the dealer. If any authority is required for this proposition, State of Andhra Pradesh v. Hoosinbhoy Sons and Co. [1964] 15 S.T.C. 850 can well be cited. In that case also, the assessment related to a firm but notice was served upon a person who was not even a partner of that firm. The Supreme Court held that in such a case it will not be deemed that the assessment order was passed against the firm. The following decision also makes it clear that a judgment will be void if a party is not given notice of proceedings. See R. v. Huntingdone Confirming Authority [1929] 1 K.B. 698.

12. It is pertinent in this connection to note that not only the issue and service of the notice was improper but the order which the Commercial Tax Officer made was also wrong because it was made not against the firm but was made against the proprietary concern of which Pachipulusu Venkata Subba Rao is the sole proprietor. The order thus suffers from these infirmities and has been rightly, in our view, found to be illegal and cannot therefore be given effect to.

13. The revision case therefore is dismissed. The department will pay the costs to the respondent.


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