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Commissioner of Sales Tax Vs. Sampat Ram Jain - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 27 of 1970
Judge
Reported in[1970]27STC307(All)
AppellantCommissioner of Sales Tax
RespondentSampat Ram Jain
Appellant AdvocateGopal Behari, Adv.
Respondent AdvocateAshoke Gupta, Adv.
Excerpt:
- - that case is, therefore, clearly distinguishable......of the firm which carried on business in the name and style of m/s. mangal sen sita ram. the firm was dissolved on 21st december, 1964. in respect of the assessment years 1961-62 to 1964-65 the firm was assessed to sales tax which was in arrears. proceedings for the recovery of the arrears were initiated and tax was sought to be recovered from the assessee by serving upon him a warrant of arrest by the kurk-amin. the assessee made a representation to the sales tax officer to withdraw the recovery proceedings against him but this request of the assessee was refused. thereupon the assessee filed a revision under section 10 and contended before the judge (revisions) that no recovery proceedings could be commenced against him without first serving a notice of demand in respect of the.....
Judgment:

1. At the instance of the Commissioner of Sales Tax, U.P., Lucknow, the Additional Judge (Revisions) Sales Tax, Agra, has submitted this statement of the case under Section 11(3) of the U.P. Sales Tax Act for the opinion of this court on the following question of law:

Whether in the circumstances of this case the arrears of sales tax for the years 1961-62 to 1964-65 on the dissolved firm Mangal Sen Sita Ram could not be recovered from the opposite party Sampat Ram, a partner of the same firm without first serving notice of demand separately upon him?

2. Sri Sampat Ram, the assessee in this case, was a partner of the firm which carried on business in the name and style of M/s. Mangal Sen Sita Ram. The firm was dissolved on 21st December, 1964. In respect of the assessment years 1961-62 to 1964-65 the firm was assessed to sales tax which was in arrears. Proceedings for the recovery of the arrears were initiated and tax was sought to be recovered from the assessee by serving upon him a warrant of arrest by the kurk-amin. The assessee made a representation to the Sales Tax Officer to withdraw the recovery proceedings against him but this request of the assessee was refused. Thereupon the assessee filed a revision under Section 10 and contended before the Judge (Revisions) that no recovery proceedings could be commenced against him without first serving a notice of demand in respect of the arrears and for this contention he relied upon Section 3-C(1)(b) of the U.P. Sales Tax Act. This contention prevailed with the Judge (Revisions) who allowed the revision application and directed the Sales Tax Officer to follow the procedure as laid down in Section 3(1) of the U.P. Sales Tax Act, before attempting to recover the arrears from the assessee. The Commissioner of Sales Tax applied for a reference under Section 11(1) of the Act which has been allowed and this statement of the case has been submitted with the question of law quoted above.

3. In Bishwanath Lohia v. The Collector, Aligarh, and Ors. [1970] 26 S.T.C. 84, decided by a Division Bench of which one of us (Gulati, J.) was a member, a similar contention raised on behalf of a partner of a firm was rejected. There it was held that the Sales Tax Officer was competent to recover the arrears of sales tax due from the firm from one of the partners without serving upon him a separate notice of demand.

4. Learned counsel for the assessee seeks to distinguish that case on the ground that that was a case of a continuing firm whereas in the present case the firm has been dissolved.

5. Section 3-C was introduced in 1957 in the U.P. Sales Tax Act which provided for the liability to tax of a dissolved firm etc. The relevant portion of this section as it stood at the material time reads as under :

Section 3-C. Liability to tax of a dissolved firm, etc.--(1) Where a dealer is a firm or association of persons or a joint Hindu family, and such firm, association or family has discontinued business--

(a) tax including penalty, if any, payable under this Act by such firm, association or family upto the date of such discontinuance may be assessed and determined as if no such discontinuance had taken place ; and

(b) every person who was at the time of such discontinuance a partner of such firm or a member of such association or family shall, notwithstanding such discontinuance, be liable severally and jointly for the payment of the tax assessed and penalty imposed and payable by such firm, association or family whether such assessment is made or penalty is imposed prior to or after such discontinuance, and, subject as aforesaid, the provisions of this Act shall apply as if every such person or partner were himself a dealer :

Provided....

Explanation.--The dissolution or reconstitution of a firm or association of persons or transfer by a dealer of his business or partition of a joint Hindu family shall be deemed to be discontinuance of business within the meaning of this section.'

6. The provision quoted above provides for the assessment of a dissolved firm and the liability of its partners in respect of the arrears of tax due against such a firm. In Clause (a), a legal fiction has been created as a result of which the assessment against a dissolved firm can be made as if no dissolution had taken place. This means that the procedure for assessment applicable to a live firm would be applicable to a dissolved firm. In the case of a live firm an assessment can be made in the name of the firm and all notices including the notice of demand can be served upon any of the partners. In the case of a dissolved firm also a notice served upon any of the partners would be a sufficient notice upon the remaining partners. Under Clause (b) of Section 3-C every partner is jointly and severally liable for the payment of the tax due against the dissolved firm and in order to enforce that liability it has been provided that every partner shall be deemed to be a dealer.

7. The Judge (Revisions) has taken the view that because every partner of a dissolved firm has to be treated to be a dealer, a fresh notice of demand should be served upon a partner before taking proceedings against him for the recovery of the tax under Section 8. The Judge (Revisions) has not properly understood the import of the legal fiction according to which every partner shall be treated to be a dealer. It does not mean that every partner is to be treated to be a dealer distinct and apart from the firm which in fact is the dealer liable to pay the tax. The true intention behind Clause (b) appears to be to treat every partner to be a dealer so that if the tax liability of a dissolved firm is not paid, every partner shall be deemed to be in default and can be proceeded against without any fresh notice to him. If the interpretation suggested by the Judge (Revisions) was to be accepted, the very purpose of the legal fiction created in Section 3-C will be frustrated.

8. While interpreting Section 44 of the Indian Income-tax Act, 1922, a provision similar to Section 3-C of the U.P. Sales Tax Act, the Supreme Court in C.A. Abraham v. Income-tax Officer [1961] 41 I.T.R. 425 (S.C.) observed at page 430 :

In effect, the Legislature has enacted by Section 44 that the assessment proceedings may be commenced and continued against a firm of which business is discontinued as if discontinuance has not taken place. It is enacted manifestly with a view to ensure continuity in the application of the machinery provided for assessment and imposition of tax liability notwithstanding discontinuance of the business of firms. By a fiction, the firm is deemed to continue after discontinuance for the purpose of assessment under Chapter IV.

9. The same view has been reiterated by the Supreme Court in Commissioner of Income-tax v. Sri Raja Reddi [1964] 51 I.T.R. 285 (S.C.).

10. The learned counsel for the assessee relied upon the decision of the Supreme Court in Sahu Rajeshwar Nath v. Income-tax Officer, C-Ward, Meerut [1969] 72 I.T.R. 617 (S.C.). That was a case under the Income-tax Act. A partner of an unregistered firm contended that the tax due from the unregistered firm could not be recovered from him unless a fresh notice of demand was served upon him under Section 29 of the Income-tax Act, 1922. The Supreme Court repelled that contention by saying that 'the phrase 'other person liable to pay in Section 29 should be construed as 'other person liable to pay under the Income-tax Act' and the liability cannot, therefore, be construed with reference to the Partnership Act or any other statute. A partner of an unregistered firm does not fall within the language of Section 29 of the Act, for the liability of the partner to pay is not imposed on account of any provision of the Income-tax Act itself.'

11. It is difficult to understand as to what assistance the learned counsel derives from that case which was decided with reference to the particular provisions of the Income-tax Act under which an unregistered partnership is a separate assessable entity.

12. In the instant case we are dealing with a dissolved firm the provisions in respect of which are contained in Section 3-C of the Act. The corresponding provision in the Income-tax Act is Section 44 which, as stated earlier, treats by a legal fiction, the dissolved firm to be a continuing firm. Section 8(1) of the Act requires every dealer to pay the tax within the time and in the manner mentioned in the notice of demand and on default the arrears of tax becomes recoverable as arrears of land revenue under Sub-section (8) of Section 8. Rule 45 of the Sales Tax Rules requires a notice of demand in form XI to be served upon a dealer. The real dealer in the instant case was the dissolved firm but as a result of the provisions contained in Section 3-C every partner including the assessee would be deemed to be a dealer. A notice of demand having already been served upon the dissolved firm, the assessee, as a result of the legal fiction in Section 3-C, is to be treated to be the dealer in default and the arrears of tax can be recovered from him as arrears of land revenue under Sub-section (8) of Section 8.

13. The learned counsel next relied upon the case of Masitullah Khan and Ors. v. The Collector, Shahjahanpur, and Ors. [1969] 23 S.T.C. 106. That was a case of a legal representative of a deceased assessee. Under Section 7-C of the Act where a person dies his legal representative shall be liable to pay, out of the estate of the deceased person, the tax payable by the deceased. There is no legal fiction under which the legal representative can be treated to be an assessee in default automatically. It is under these circumstances that a Division Bench of this court held that before a recovery proceeding could be launched against a legal representative of a deceased person, a notice of demand is necessary to be served upon him so as to enable him to pay up the dues in accordance with the notice of demand. That case is, therefore, clearly distinguishable.

14. For all these reasons we answer the question in the negative in favour of the Commissioner of Sales Tax and against the assessee. The Commissioner of Sales Tax is entitled to the costs which we assess at Rs. 100. The counsel's fee is also assessed at the same figure.


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