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Gauri Shanker Vs. Sales Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberWrit Petition No. 8026 of 1972
Judge
Reported in[1974]34STC292(All)
AppellantGauri Shanker
RespondentSales Tax Officer
Appellant AdvocateM.C. Dwivedi, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Cases ReferredSant Bux Singh v. State of U. P. and Ors.
Excerpt:
- - the petitioner has clearly an alternative remedy to file an appeal against the order of assessment wherein the aforesaid questions of fact can properly be adjudicated upon. 701 is, therefore, clearly distinguishable......in the present writ petition mainly on two grounds: firstly, that he was not a partner of the firm munna lal gauri shanker and, secondly, that in any view of the matter, he having been born on 15th january, 1946, was a minor at the relevant time, and could not be a partner of the aforesaid firm. a counter-affidavit has been filed in which it has been asserted that the assessment was made on the firm munna lal gauri shanker and the assessing authority had held in the assessment orders that munna lal and gauri shanker were partners in the aforesaid firm. the averment that the petitioner was born on 15th january, 1946, is contained in paragraph 1 of the writ petition. reply to this paragraph is contained in paragraph 4 of the counter-affidavit in which it has been stated that the.....
Judgment:

N.D. Ojha, J.

1. Firm Munna Lal Gauri Shanker was assessed to sales tax for the assessment years 1961-62,1962-63 and 1963-64. The amount of tax was subsequently sought to be recovered from the petitioner on the ground that he was a partner of the firm aforesaid. The petitioner has challenged the recovery proceedings in the present writ petition mainly on two grounds: firstly, that he was not a partner of the firm Munna Lal Gauri Shanker and, secondly, that in any view of the matter, he having been born on 15th January, 1946, was a minor at the relevant time, and could not be a partner of the aforesaid firm. A counter-affidavit has been filed in which it has been asserted that the assessment was made on the firm Munna Lal Gauri Shanker and the assessing authority had held in the assessment orders that Munna Lal and Gauri Shanker were partners in the aforesaid firm. The averment that the petitioner was born on 15th January, 1946, is contained in paragraph 1 of the writ petition. Reply to this paragraph is contained in paragraph 4 of the counter-affidavit in which it has been stated that the contents of paragraph 1 were admitted only to the extent that the petitioner was a resident of Tehsil Moth, District Jhansi. The remaining averments in paragraph 1 of the writ petition were thus not admitted. Even though a specific allegation was made in the counter-affidavit that in the assessment orders a finding was recorded that the petitioner was a partner of the firm Munna Lal Gauri Shanker, no copy of the assessment orders had been filed by the petitioner along with the rejoinder-affidavit indicating that the averments made in this behalf in the counter-affidavit was incorrect. It is thus clear that the facts whether the petitioner was a minor at the relevant time, and whether he was a partner of the firm Munna Lal Gauri Shanker, are both disputed in the counter-affidavit. In this view of the matter, we are of the opinion that it will not be appropriate to go into these questions of fact in the present writ petition, particularly, when the writ petition has been filed against the recovery proceedings alone and the assessment orders are not under challenge. The petitioner has clearly an alternative remedy to file an appeal against the order of assessment wherein the aforesaid questions of fact can properly be adjudicated upon. The learned Counsel for the petitioner relied upon Ram Avtar v. Assistant Sales Tax Officer, Kanpur1, in support of his contention that before recovery proceedings could be initiated against the petitioner, it was incumbent upon the authorities to record a finding that the petitioner was a partner in the firm Munna Lal Gauri Shanker. From a perusal of the aforesaid decision, it is clear that the assessment order in that case did not record any finding specifically that the petitioner was a partner in the firm. In the instant case, however, as already pointed out above, the assessing authority seems to have recorded a finding that the petitioner was a partner in the firm Munna Lal Gauri Shanker. Ram Avtar's case 1972 U.P.T.C. 701 is, therefore, clearly distinguishable. Reliance was then placed upon Sant Bux Singh v. State of U. P. and Ors. 1973 U.P.T.C. 539 in support of the same proposition. In that case the assessee had challenged the assessment order itself for the year 1966-67, in respect of which year there was a finding that the assessee was a partner. Since the assessment order has not been challenged in the present writ petition which is restricted to recovery proceedings, the decision given in Sant Bux Singh's case 1973 U.P.T.C. 539 also does not assist the petitioner. In view of the foregoing discussion we find no merit in this petition. It is accordingly dismissed with costs.


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