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Manni Lal and anr. Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 706 (Tax) of 1975
Judge
Reported in[1982]49STC354(All)
AppellantManni Lal and anr.
RespondentSales Tax Officer and ors.
Excerpt:
- .....without first adjudicating upon the claim of the petitioners for adjustment of the dues from the amounts alleged to have been paid by them. by an earlier order, this court directed the sales tax officer to go into the claim of the petitioners for adjustment and to examine as to whether the payments alleged by the petitioners had in fact been made and adjustment given to them. the sales tax officer has gone into this question and a copy of his report has been filed as annexure 1 mto the supplementary counter-affidavit of ramesh chand srivastava (filed in this court on 28th november, 1980). from the report it transpires that adjustment has been given to the petitioners in respect of a large number of payments alleged to have been made by them and set out in paragraph 8 of the writ.....
Judgment:

C.S.P. Singh, J.

1. The petitioners were partners of a firm against which there were certain sales tax dues. It appears that these dues were not paid as a result of which recovery certificates were issued by the Sales Tax Officer. There was a dispute between the petitioners and the department regarding adjustment of certain payments alleged to have been made by the petitioners. In paragraph 8 of the petition the petitioners allege that adjustment had not been granted in respect of 17 items of payments which had been made by them. In the writ petition they have prayed for a direction commending the respondents from refraining from realising the amounts mentioned in the recovery certificates without first adjudicating upon the claim of the petitioners for adjustment of the dues from the amounts alleged to have been paid by them. By an earlier order, this Court directed the Sales Tax Officer to go into the claim of the petitioners for adjustment and to examine as to whether the payments alleged by the petitioners had in fact been made and adjustment given to them. The Sales Tax Officer has gone into this question and a copy of his report has been filed as annexure 1 mto the supplementary counter-affidavit of Ramesh Chand Srivastava (filed in this Court on 28th November, 1980). From the report it transpires that adjustment has been given to the petitioners in respect of a large number of payments alleged to have been made by them and set out in paragraph 8 of the writ petition. There is dispute regarding payments mentioned at items Nos. 1, 2, 3 and 5 of paragraph 8 of the petition. The Sales Tax Officer has not given adjustment to the petitioners on the ground that the petitioners have not been able to prove that these amounts have in fact been received by the department. The details of these items may be mentioned. Item No. 1 relates to an amount of Rs. 269.44 which the petitioners alleged to have paid vide cheque No. 505429 dated 31st October, 1957, drawn on the Hindustan Commercial Bank. Item No. 2 relates to an amount of Rs. 350, payment of which is alleged to have been made vide bank draft No. 36430 dated 8th August, 1960, drawn on the Punjab National Bank, Kanpur. The third item is for an amount of Rs. 177.27, the payment of which is said to have been made by bank draft No. 627627 dated 30th July, 1958. The name of the bank on which the draft was drawn is not mentioned in the petition. Item No. 5 relates to an amount of Rs. 600.00 said to have been paid to the kurk amin vide a receipt dated 22nd January, 1962.

2. Counsel for the petitioners contended that inasmuch as the department has more or less admitted that the bank drafts were received by them, the petitioners should be given credit for the bank drafts as it was the responsibility of the department to have encashed them after receiving them. Similar is the contention raised in respect of the cheque. So far as the money paid to the kurk amin is concerned, it is contended that as the amount in question was paid to a person who was duly authorised to collect the arrears of tax, payment to the kurK amin constituted discharge for the amount shown in the receipt. As we have seen earlier, the department has disputed these payments and has taken the stand that these payments have in fact not been received. The petitioners can be absolved of payments of these amounts only in case the amounts had been received by the department. As there is a dispute between the parties in respect of these payments and the material on the record is scanty to arrive at a firm conclusion as to whether the aforesaid amounts have in fact been received by the department, it is not possible to direct the respondents to give adjustment to the petitioner in respect of these amounts. In case the petitioners have any grievance so far as these amounts are concerned, their proper remedy would be to file a suit for accounts or declaration in respect of these amounts. The other relief sought by the petitioners is that the properties of the petitioners should not be sold in one lot, as the attachment of the properties were made piecemeal. It was contended that the properties which were attached first should be sold first and only in the event of short fall the properties attached subsequently should be put to auction. It has been pointed out to us by the standing counsel that all the properties attached are movable properties, and it will not be convenient in case they are sold in separate lots. It was further stressed that in case separate auctions are held it will entail further expenses which will further reduce the amount which the department will realise from the auction sales. Under the law there is no obligation on the department to sell the properties piecemeal. Considering the fact that all the properties which have been attached are movable properties, it will be equitable that all these properties are sold at a single auction. The petitioners will be entitled to adjustment of the amount fetched at the auction after deducting the necessary expenditure for conducting the auction.

3. The petition is disposed of accordingly. No order is made as to costs. The stay order dated 14th August, 1975, is discharged.


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