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Sarnam Satyanarayana Vs. Deputy Commercial Tax Officer - Court Judgment

LegalCrystal Citation
Subject Sales Tax
CourtAndhra Pradesh High Court
Decided On
Case Number Writ Appeal No. 51 of 1960
Judge
Reported in[1961]12STC223(AP)
AppellantSarnam Satyanarayana
RespondentDeputy Commercial Tax Officer
Appellant Advocate R. Venugopal Reddy, Adv.
Respondent Advocate The Third Government Pleader, Adv.
Disposition Appeal dismissed
Excerpt:
- - all the relevant records, including the accounts maintained by the firm, clearly disclosed that the appellant was a partner. and (ii) that failure to issue fifteen days' notice before attachment was levied has vitiated the proceedings. this is not intended to benefit a partner, who has failed to discharge the duty that is cast on him by the section. being satisfied that the other person also was a partner, the department served a demand notice on him to pay the tax. therefore, that case is clearly distinguishable and does not in any way help the appellant. if that were so, we fail to see how any relief could be granted in the writ petition......hearing before our learned brother, four points were urged, namely (i) that the appellant is not a partner of the firm but only a financier; (ii) that even if he is a partner, the tax could be collected only from the assets of the firm, which is a distinct legal entity and which is a registered dealer within the meaning of section 2 (b) of the sales tax act; (iii) that inasmuch as the appellant's entry into the partnership has not been reported in the manner laid down in the first part of rule 19 of the sales tax rules, the arrears should not be collected from him ; and (iv) that the latter half of rule 19 is ultra vires in that it runs counter to the charging section (section 3) of the sales tax act.4. the learned judge overruled all the objections as being without any substance and.....
Judgment:

Chandra Reddy, C.J.

1. This is an appeal against the order of our learned brother, Seshachalapati, J., dismissing a petition for the issuance of a writ of certiorari to quash the attachment of the properties belonging to the appellant and for a writ of mandamus directing the respondent to forbear from cashing a cheque issued by him to meet the demand in regard to assessment of tax levied on Nityananda Rice and Groundnut Oil Mill.

2. The short facts giving rise to this appeal are these. Two persons, Parepalli Veeranjaneyulu and Parepalli Janardhanarao were carrying on business in rice and groundnut under the name and style of 'Nityananda Rice and Groundnut Oil Mill, Contractor Rao and Company' in Mangala-giri, Guntur District. For the assessment year 1951-52, the firm was assessed to sales tax in the sum of Rs. 5,194-12-6. The tax not having been paid, the firm was treated as a defaulter with effect from 20th February, 1953. By order dated 20th July, 1958, the Deputy Commercial Tax Officer sought to attach the properties of the appellant for realisation of the arrears of sales tax, as it turned out that he was also one of the partners of the firm. All the relevant records, including the accounts maintained by the firm, clearly disclosed that the appellant was a partner. On 4th August, 1958, the appellant paid under protest Rs. 1,844-79 nP. in cash and issued a crossed-cheque for Rs. 3,350 drawn on the State Bank of India, Guntur. Having done so, he approached this Court for the reliefs mentioned above under Article 226 of the Constitution.

3. When the writ petition came up for hearing before our learned brother, four points were urged, namely (i) that the appellant is not a partner of the firm but only a financier; (ii) that even if he is a partner, the tax could be collected only from the assets of the firm, which is a distinct legal entity and which is a registered dealer within the meaning of Section 2 (b) of the Sales Tax Act; (iii) that inasmuch as the appellant's entry into the partnership has not been reported in the manner laid down in the first part of Rule 19 of the Sales Tax Rules, the arrears should not be collected from him ; and (iv) that the latter half of Rule 19 is ultra vires in that it runs counter to the charging section (section 3) of the Sales Tax Act.

4. The learned Judge overruled all the objections as being without any substance and dismissed the writ petition. It is that order that is under appeal now.

5. In support of this appeal, two contentions are advanced by the learned counsel for the appellant, namely, (i) that since it was not reported to the authorities concerned that he was a partner as contemplated by Rule 19 he could not be deemed to be a partner and that at any rate, he should have been given notice before he was assessed to tax; and (ii) that failure to issue fifteen days' notice before attachment was levied has vitiated the proceedings.

6. We are inclined to think that neither of the two submissions is tenable. Rule 19 is in these words :

If a dealer or licensee enters into partnership in regard to his business, he shall report the fact to the assessing authority within 30 days of his entering into such partnership. The dealer or licensee and the partner shall jointly and severally be responsible for the payment of the tax leviable under the Act.

7. It is manifest that this rule imposes an obligation on the part of a partner to report to the assessing authority the fact of his being a partner. This is conceived in the interests of the Department, so that they may have all information regarding the constitution of the partnership. This is not intended to benefit a partner, who has failed to discharge the duty that is cast on him by the section. This rule has not the effect of absolving a partner of all responsibility and liability, who fails to report the assessing authority the fact of his being a member of the partnership. We feel that this rule does not help the appellant to escape liability on the plea that he had omitted to inform the Department of his being a partner of the firm.

8. The decision of Satyanarayana Raju, J., in Shankarlal Karva v. Tahsildar, Karimnagar [1958] 9 S.T.C. 246 cited by the appellant in support of the second head of the first contention is not in point, since the learned Judge there had to deal with assessment made on an individual. He was not concerned with assessment made on a firm. In that case, when a registered dealer was assessed to tax in respect of his turnover and when his properties were proceeded against for realisation of the tax, he set up the case that there was another partner in that business and that he was equally liable to pay the tax. Being satisfied that the other person also was a partner, the Department served a demand notice on him to pay the tax. That is not the situation here. In the instant case, it was the turnover of the partnership that was made exigible to tax and it is not a case where an individual was assessed to tax. It was only in the course of collection of the arrears of tax that attachment was levied against the properties of the appellant. Therefore, that case is clearly distinguishable and does not in any way help the appellant.

9. The second point was not raised before our learned brother. Further, this is a matter which requires investigation. It is open to the appellant to raise such an objection before the authorities concerned.

10. There is an insurmountable difficulty in the way of the appellant getting any relief in this regard. Indisputably, the whole of the tax due by the appellant has been paid ; in which case, there is no question of continuing attachment proceedings. If that were so, we fail to see how any relief could be granted in the writ petition. His only remedy, if any, is to resort to Civil Courts for recovery of the amount paid by him.

11. As regards the prayer for the issue of a writ of mandamus to say the least, it is a curious one. Having issued the cheque the appellant wants a mandate from this Court to prevent the payee from cashing the cheque. Comment is unnecessary on this. Further, we are also told that the cheque was cashed long before the petition was filed.

12. For these reasons, we feel that this appeal is devoid of merits and has to be dismissed.


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