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Shiv NaraIn and anr. Vs. the Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Writ No. 738 of 1971
Judge
Reported in[1972]29STC150(All)
AppellantShiv NaraIn and anr.
RespondentThe Sales Tax Officer and ors.
Appellant Advocate R.K. Gulati and ; V.N. Khare, Advs.
Respondent Advocate Standing Counsel
Excerpt:
- - it is also urged that inasmuch as the recovery proceeding by way of arrest is directed against the petitioner, such recovery proceeding is also bad in law......september, 1970, made by the assistant commissioner (judicial) sales tax.2. it is alleged that the hindu undivided family of which the petitioner no. 1 is karta carries on business in the name and style of messrs durjan mal raj kumar. the assessment orders mentioned above were made against the said hindu undivided family.3. the principal contention of learned counsel for the petitioner is that the hindu undivided family is not a 'dealer' for the purposes of the u.p. sales tax act and, therefore, the assessments made against it are without jurisdiction. it is also urged that inasmuch as the recovery proceeding by way of arrest is directed against the petitioner, such recovery proceeding is also bad in law.4. so far as the first contention is concerned, that is to say, whether a hindu.....
Judgment:

R.S. Pathak, J.

1. The petitioners apply under Article 226 of the Constitution for certioran against the assessment orders dated 23rd November, 1967, 31st May, 1969, 14th March, 1969, 26th March, 1970, 31st August, 1970, 30th September, 1970, and 23rd December, 1970, for the assessment years 1962-63, 1963-64, 1964-65, 1965-66, 1966-67, 1967-68 and 1968-69 respectively and the appellate orders dated 20th August, 1968, 21st November, 1969, 5th December, 1969, and 1st September, 1970, made by the Assistant Commissioner (Judicial) Sales Tax.

2. It is alleged that the Hindu undivided family of which the petitioner No. 1 is karta carries on business in the name and style of Messrs Durjan Mal Raj Kumar. The assessment orders mentioned above were made against the said Hindu undivided family.

3. The principal contention of learned counsel for the petitioner is that the Hindu undivided family is not a 'dealer' for the purposes of the U.P. Sales Tax Act and, therefore, the assessments made against it are without jurisdiction. It is also urged that inasmuch as the recovery proceeding by way of arrest is directed against the petitioner, such recovery proceeding is also bad in law.

4. So far as the first contention is concerned, that is to say, whether a Hindu undivided family is a 'dealer' for the purposes of the U.P. Sales Tax Act, we are of the opinion that the U.P. Sales Tax Act itself provides adequate and complete remedy to the assessee for determination of that question. We find that in some cases, the assessee has in fact preferred revision applications against the appellate orders and has taken resort to the statutory remedy provided by the Act. We see no reason why this petition should be entertained and relief granted under the extraordinary jurisdiction of this court. Article 226 of the Constitution should not be invoked when sufficient and adequate remedy is available under the statute itself. Besides some of the assessment orders and appellate orders were passed a long time ago and the prayer for quashing those orders is belated.

5. As regards the recovery proceeding, we accept the contention of the petitioners that as karta of the Hindu undivided family, Shiv Narain cannot be arrested for the purposes of recovering the tax due from the Hindu undivided family. The law on the subject was laid down by this court in Baladin Ram Kalwar v. Income-tax Officer [1966] 62 I.T.R. 392.

6. The petition is allowed in part in so far that the respondents are restrained from attempting to recover the sales tax due from the Hindu undivided family, Messrs Durjan Mal Raj Kumar, by the arrest of Shiv Narain. In respect of the remaining relief, the petition stands dismissed.

7. In the circumstances, there is no order as to costs.


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