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Commissioner of Sales Tax Vs. Ram Sewak Hariom - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. Nos. 135 and 136 of 1981
Judge
Reported in[1982]51STC197a(All)
AppellantCommissioner of Sales Tax
RespondentRam Sewak Hariom
DispositionRevision dismissed
Excerpt:
.....as if he were conducting the business himself and all the provisions of the act and the rules made thereunder shall apply accordingly. 4. in the result both these revisions fail and are dismissed with costs which is assessed at..........as even assuming that effect of attachment was that the assessee was prevented from alienating the property the liability in respect of the business having been carried on by manager, etc., is governed by section 20 of the u.p. sales tax act. it reads as under :in the case of business owned by a dealer whose estate or any portion of whose estate is under the control of the court of wards, the administrator-general, the official trustee or any receiver or manager (including any person whatever his designation who in fact manages the business on behalf of the dealer) appointed by him or under any order of a court, the tax shall be levied upon and recoverable from such court of wards, administrator-general, official trustee, receiver or manager, in like manner and in the same terms as it.....
Judgment:

R.M. Sahai, J.

1. By these two revisions the Commissioner of Sales Tax has challenged the legality of view taken by the Additional Judge (Revisions), Sales Tax, that the assessee was not taxable as the kiln was under attachment. The controversy has arisen because in survey dated 26th August, 1970, it was found that kiln was running although it had been attached on 28th March, 1969. It is not disputed that this attachment was lifted on 17th November, 1977. Consequently the kiln was under attachment in both the assessment years. The question is whether if the kiln ran or was operated the liability is of the assessee or of the supardar or any one else. The revising authority found that the kiln after attchment was placed in the custody of Ram Prakash Yadava. He appears to have moved an application to the Superintendent of Police, Mainpuri, on 29th August, 1970, complaining that his servant Neksa Ram was manhandled and beaten by the sales tax authorities on 26th August, 1970 and on 7th April, 1971. The assessee also appeared to have moved an application to the Sales Tax Officer that after attachment of the brick kiln he never ran it and his file be closed. After considering these facts the revising authority was of the opinion that it cannot be held that the assessee ran the kiln in the assessment year in dispute. This finding of fact has not been shown to be perverse by the learned standing counsel but what is urged by him is that this attachment was not under Section 182(A) of the Land Revenue Act but attachment simpliciter and therefore, the effect of attachment in law was that the assessee was deprived of alienating or transferring the property but it did not affect its right to carry on business. Reliance is placed by him on the meaning of attachment of immovable property in Mitra's Legal and Commercial Dictionary, where it is stated as under:

Attachment of immovable property : Where the property is immovable, the attachment shall be made by an order prohibiting the Judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge.

2. This, however, does not help the learned standing counsel as even assuming that effect of attachment was that the assessee was prevented from alienating the property the liability in respect of the business having been carried on by manager, etc., is governed by Section 20 of the U.P. Sales Tax Act. It reads as under :

In the case of business owned by a dealer whose estate or any portion of whose estate is under the control of the Court of Wards, the Administrator-General, the Official Trustee or any Receiver or Manager (including any person whatever his designation who in fact manages the business on behalf of the dealer) appointed by him or under any order of a court, the tax shall be levied upon and recoverable from such Court of Wards, Administrator-General, Official Trustee, Receiver or Manager, in like manner and in the same terms as it would be leviable upon and recoverable from the dealer as if he were conducting the business himself and all the provisions of the Act and the Rules made thereunder shall apply accordingly.

3. The effect of this section is that a dealer whose property is in the custody of an official appointed by a court and is put under attachment then the liability to pay the tax is on such person or manager or official of the court. In view of this provision even accepting the argument of the learned standing counsel that the right of the assessee to carry on business was not affected, the liability to pay tax shall rest not on the assessee but on the supardar.

4. In the result both these revisions fail and are dismissed with costs which is assessed at Rs. 200 one set.


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