Satish Chandra, C.J
1. The petitioners in the present writ petition challenge the validity of the assessment proceedings as also the recovery of tax. The petitioners' case was that the first petitioner was a partnership firm carrying on business of manufacture and sale of pulses. It has been stated that the firm was dissolved on 27th October, 1958 and the information regarding the dissolution of the same was given to the Sales Tax Officer, Agra. Proceedings for recovery of sales tax dues for the assessment years 1956-57 and 1957-58 were taken up by the respondents. The petitioners' allegation is that they started making demands without service of the assessment order or any notice of demand, hence the recovery proceedings are illegal. Assessment orders have also been challenged on similar grounds. In the counter-affidavit it has been explained that one of the partners, namely, Motilal, appeared before the Sales Tax Officer, Agra, for final assessment of 1956-57 and the assessment orders were passed after hearing the petitioners. In regard to the service of the assessment orders and demand notices for these two assessment years it has been stressed in the counter-affidavit that the demand notice for the year 1956-57 was served by affixation at the petitioner's place of business on 22nd May, 1961 and the demand notices under the U.P. and the Central Sales Tax Acts for the year 1957-58 were also served by affixation on 28th February, 1962. It is thus clear that the service was by affixation.
2. Rule 77 of the Sales Tax Rules provides the modes of service. Clause (d) of Sub-rule (1) says :
If none of the modes aforesaid is practicable, by affixing of a copy thereof in some conspicuous place at the last known place of business or residence of the dealer.
3. We will assume that the modes provided under Clauses (a) to (c) were not practicable, therefore, affixation was permissible. But the affixation is to be made at a conspicuous place on the last known place of the business or residence of the dealer.
4. The question is who was the dealer in 1961 and 1962 when the service was sought to be effected through affixation. Section 3-C provides for the contingencies where a firm has discontinued its business. Under Clause (b) of Clause (1) of Section 3-C it has been provided that every person who was at the time of such discontinuance a partner of such firm shall be liable severally and jointly for the payment of the tax assessed and the penalty imposed and payable by such firm and the provisions of this Act shall apply 'as if every such person or partner was himself a dealer'. It is not disputed that the firm discontinued its business in 1958. Therefore, when the service was being effected in 1961 or 1962, the petitioners Nos. 2 and 3 who were the erstwhile partners, were liable to pay the tax demanded severally and jointly 'as if they were themselves dealers'. There is no allegation much less any proof that the petitioners Nos. 2 and 3 ever carried on business. Further, there is no allegation even that these two gentlemen carried on business at the same place where the partnership firm was carrying on business. Affixation was done at the 'petitioner's place of business'. This at best means the last known place of business of the petitioner No. 1, which was a partnership firm. In the absence of any allegation that the petitioners Nos. 2 and 3 ever carried on business, the reference to the petitioner's business place in para 6 of the counter-affidavit could only have relevance to the firm's place of business.
5. The firm had discontinued business in 1958. In view of Section 3-C the two partners were dealers themselves. The last known place of business of the dealer spoken of by Clause (d) of Rule 77 would, in the circumstances, be referable to the last known place of business of the petitioners Nos. 2 and 3 but there was no such place of business. Consequently, the only valid mode of service would be by affixation of a copy at some conspicuous place at the residence of the dealers, viz., respondents (sic) Nos. 2 and 3. But no such attempt was made. It is evident that the mode of service was bad. The recovery proceedings would, in the eye of law, be deemed to have been continued without service of the notice of demand and the assessment orders. Such recovery proceedings are without jurisdiction ab initio. They are liable to be quashed.
6. It has been stated in the petition that the respondents coerced the petitioners to pay Rs. 7,379.90. This allegation has been denied. The counter-affidavit says that the petitioners paid the sum voluntarily. First, any voluntary payment against a legitimate demand cannot possibly be directed to be refunded and in the next place, the allegation of undue influence and coercion having been denied, no relief under Article 226 of the Constitution can be given on the basis of disputed facts.
7. In the result, the writ petition succeeds in part and is accordingly allowed. The recovery proceedings for the assessment years 1956-57 and 1957-58 only are quashed. The other relief is refused. In view of the divided success, the parties shall bear their own costs.