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Radha Kishan Bagla Vs. Commissioner of Sales Tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberC.M.W.P. No. 620 of 1976
Reported in(1978)7CTR(All)354
AppellantRadha Kishan Bagla
RespondentCommissioner of Sales Tax and ors.
Excerpt:
- - the firm then went up in revision which failed......chandra, j. - for the assessment year 1957-58, the sales tax officer held that the petitioner radha kishan bagla was also a partner in the firm messrs. yogesh kumar & sons. the same thing happened for the next assessment year 1958-59. the firm went up in appeal. the appeal was allowed and the matter was remanded. the question whether the petitioner radha kishan bagla was or was not a partner in this firm was left open. the firm then went up in revision which failed. at the instance of the firm, a reference was made to this court for both the years and the following question of law was referred :'whether there was any material on record to support the findings of the judge (revisions) that radha kishan bagla had a proprietary or partnership interest in the business run in the name of.....
Judgment:
ORDER

Satish Chandra, J. - For the assessment year 1957-58, the Sales Tax Officer held that the petitioner Radha Kishan Bagla was also a partner in the firm Messrs. Yogesh Kumar & Sons. The same thing happened for the next assessment year 1958-59. The firm went up in appeal. The appeal was allowed and the matter was remanded. The question whether the petitioner Radha Kishan Bagla was or was not a partner in this firm was left open. The firm then went up in revision which failed. At the instance of the firm, a reference was made to this Court for both the years and the following question of law was referred :

'Whether there was any material on record to support the findings of the Judge (Revisions) that Radha Kishan Bagla had a proprietary or partnership interest in the business run in the name of Yogesh Kumar & Sons ?'

2. A Division Bench of this Court in a Judgment dated February 14, 1977, gave the following answer :

'The material on record could only give rise to a rebuttable presumption that Radha Kishan Bagla was the proprietor of, or a partner in, the business run in the name of Yogesh Kumar and Sons, but could not, without consideration of his explanation, support the finding that he was the proprietor of, or partner in such business'.

In the course of the judgment, the Division Bench observed that the Judge (Revisions) and the Assistant Commissioners (Judicial) Sales Tax, rightly set aside the assessment order and remanded the case to the Sales Tax Officer with a direction that Radha Kishan Bagla be given an opportunity to give his explanation in regard to the materials on which the Sales Tax Officer inferred that he was the proprietor of, or a partner in the business run in the name of Yogesh Kumar & Sons.

3. This reference was answered, as noted above, inspite of the fact that in consequence of the remand order passed by the Assistant Commissioner, the Sales Tax Officer passed a fresh assessment order dated June 2, 1971 holding that Radha Kishan Bagla was a partner. We are informed that the petitioner Radha Kishan Bagla has, on November 2, 1976, filed appeals against these fresh assessment orders along with applications under S. 5 of the Limitation Act. We are further informed that these appeals are pending disposal.

4. Under S. 11(6) of the U.P. Sales Tax Act, the revising authority has to pass such orders as are necessary to dispose of the case in conformity with the High Court Judgment. We are informed by the learned counsel for the petitioner that though a copy of the order passed by the High Court was loded with the appropriate revising authority but no order as contemplated under S. 11(6) of the Act has yet been passed by it. Apparently the proceedings under S. 11(6) are pending disposal before the revision authority. There is no averment in the writ petition or any submission by the learned counsel that the Judge (Revisions) has neglected or refused to pass an order in conformity with S. 11(6) or the Act. Coupled with this is the fact that the petitioner has already filed an appeal against the fresh assessment order. In view of this factual situation, we are not disposed to go into the question whether the petitioner was a partner in the firm or whether the fresh assessment orders can in law stand in view of the order passed by the High Court in the reference. These matters will be decided by the Judge (Revisions) while passing an order under S. 11(6) of the Act, if necessary.

5. Learned counsel argued that the Department is pressing on with the recovery proceedings to realize the amount of tax imposed on the firm on the footing that the petitioner was also a partner in the firm. The recovery proceedings are going on because there is a fresh assessment order in which it was held that the petitioner was a partner in the firm. There is no illgeality in the existence of the recovery proceedings but, of course, to us it appears that the departmental authorities however ought to be realistic enough not to press the recovery proceedings till the Judge (Revisions) passes an appropriate order under S. 11(6) of the Act. Subject to these observations the writ petition is dismissed but we make no order as to costs.


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