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Amir Chand Vs. the Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 1742 of 1965
Judge
Reported in[1966]17STC76(All)
AppellantAmir Chand
RespondentThe Sales Tax Officer and ors.
Appellant AdvocateHari Sarup and ;R.K. Das, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
- - 8. as i am of opinion that the recovery proceedings are bad in law, it is not necessary to decide whether the order of the judge (revisions) sales tax dismissing the petitioner's revision application is vitiated by any error of jurisdiction......kumar at agra. he is assessed to sales tax in respect of that business. it is alleged that one pran nath kapoor carried on business under the name messrs kapoor bros. the dealer was registered at firozabad under section 8-a of the u.p. sales tax act and a registration certificate for the assessment year 1957-58 was issued. it was issued upon an application made under rule 54 by pran nath kapoor in which he declared himself to be the sole proprietor of the business. it is said that certain proceedings of assessment for the months of october and november, 1957, were made against messrs kapoor bros., and that they were subsequently set aside upon a writ petition filed by pran nath kapoor as proprietor of the business. it is also alleged that pran nath kapoor, as proprietor of messrs.....
Judgment:

R.S. Pathak, J.

1. The petitioner is aggrieved by proceedings against him for recovery of sales tax assessed by the Sales Tax Officer against a firm, Messrs Kapoor Bros., for the assessment year 1957-58. The petitioner alleges that he was not a member of the firm, was not disclosed by it as such, and he had no notice of the assessment proceedings or of the consequent notice of demand.

2. The petitioner carries on business under the name Madan Lal Jitendra Kumar at Agra. He is assessed to sales tax in respect of that business. It is alleged that one Pran Nath Kapoor carried on business under the name Messrs Kapoor Bros. The dealer was registered at Firozabad under Section 8-A of the U.P. Sales Tax Act and a registration certificate for the assessment year 1957-58 was issued. It was issued upon an application made under Rule 54 by Pran Nath Kapoor in which he declared himself to be the sole proprietor of the business. It is said that certain proceedings of assessment for the months of October and November, 1957, were made against Messrs Kapoor Bros., and that they were subsequently set aside upon a writ petition filed by Pran Nath Kapoor as proprietor of the business. It is also alleged that Pran Nath Kapoor, as proprietor of Messrs Kapoor Bros., filed returns for the assessment year 1957-58 and that on the basis of the returns an assessment order was made on 31st July, 1958, for that assessment year. In the assessment order, the Sales Tax Officer considered the question as to who was owner of the business, and he found that it was owned by the petitioner and Pran Nath Kapoor. He determined the sales tax payable by the firm at Rs. 2,50,000. Thereafter, as the firm did not pay the tax, he issued a recovery certificate on 11th September, 1958, under Section 8 of the U.P. Sales Tax Act and mentioned therein that the tax should be recovered from Pran Nath Kapoor. On 8th September, 1962, the then Sales Tax Officer was replaced by Anr., and the latter issued a fresh recovery certificate. This certificate was for the recovery of Rs. 2,50,000 due for the assessment year 1957-58 and Rs. 1,50,000 due upon a provisional assessment in respect of assessment year 1958-59. On 6th October, 1962, the Sales Tax Officer wrote to the Collector, Agra, pointing out that his records disclosed that Pran Nath was merely a servant of the petitioner and that the money should be realised from the petitioner.

3. On the same date he issued a notice to the petitioner in the assessment proceedings for the year 1958-59 stating that the petitioner carried on the business in the name of Messrs Kapoor Bros. That was denied by the petitioner. The Sales Tax Officer, however, maintained that Messrs Kapoor Bros., was a partnership consisting of the petitioner and Pran Nath Kapoor and made an assessment order for the year 1958-59 accordingly. An appeal was filed by the petitioner against the assessment order, and the Judge (Appeals) set aside the assessment and remanded the case. It is said that the proceedings are still pending.

4. In the recovery proceedings consequent to the recovery certificate of 26th October, 1962, the petitioner was arrested by the Tehsildar, Agra, but was subsequently released on furnishing bail. The petitioner protested against the institution of recovery proceedings against him but his objection was dismissed by the Sales Tax Officer on 10th December, 1962, by an order stating that he was a partner in the business and was liable to pay the sales tax due from Messrs Kapoor Bros. Against that order the petitioner proceeded in revision, but the revision application was dismissed on 13th March, 1965, by the Additional Judge (Revisions) Sales Tax.

5. The petitioner has now moved this Court under Article 226 of the Constitution.

6. The principal contention of the petitioner is that the recovery proceedings against him are invalid because he had no opportunity of showing that he was not a partner of Messrs Kapoor Bros., at the time when the assessment order was made. No notice of the assessment proceedings was issued to him and he was not served with a copy of the notice of demand. Consequently it is urged any finding given in the assessment order that he was a partner of Messrs Kapoor Bros., was not binding upon him. There is force in this contention. The application for registration of Messrs Kapoor Bros, was made by Pran Nath Kapoor disclosing himself to be the proprietor of the concern and it was not mentioned therein that the petitioner was a partner. The returns were filed by Pran Nath Kapoor. No representation was made on behalf of Messrs Kapoor Bros, that the petitioner was a partner. In the circumstances, it was not open to the Sales Tax Officer to hold that the petitioner was a partner of the business, unless an opportunity had been given to him to show that he was not. The question whether he was or was not a partner of the firm could not be determined without notice to him.

7. The petitioner contends that the application for registration shows that Messrs Kapoor Bros, was the proprietary business of Pran Nath Kapoor alone, and as upon that application a registration certificate had been granted the Sales Tax Officer was bound to treat Pran Nath Kapoor alone as the dealer. The application for registration, it is true, requires that the proprietor should be disclosed or the partners of the business should be specified, but the grant of the certificate of registration does not require that the Sales Tax Officer should find whether the business is owned by one person or more, whether it is owned by a single person or is a partnership business. Section 8-A(lA) does contemplate an enquiry by the Sales Tax Officer before allowing the registration application and granting registration. But I am unable to hold that merely because the registration application requires the applicant to specify the name of the proprietor or the names of the partners, and the registration certificate is granted, the Sales Tax Officer is precluded from subsequently examining, when taking assessment proceedings, what is the identity of the dealer. The decisions cited on behalf of the petitioner do not lead me to the conclusion to which he seeks to persuade me. It must be remembered that an unregistered dealer is as much liable to assessment as a registered dealer is. To accept the contention of the petitioner would be to imply that a dealer who has not applied for registration is not liable to assessment.

8. As I am of opinion that the recovery proceedings are bad in law, it is not necessary to decide whether the order of the Judge (Revisions) Sales Tax dismissing the petitioner's revision application is vitiated by any error of jurisdiction.

9. The petition is allowed. The recovery proceedings are quashed. The petitioner is entitled to his costs.


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