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Laxmi Kirana Company and ors. Vs. the Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 336 (Tax) of 1977
Judge
Reported in[1983]54STC202(All)
AppellantLaxmi Kirana Company and ors.
RespondentThe Collector and ors.
Appellant AdvocateK.N. Saxena, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
- - the proviso appended to the section lays down that where it is found that a change has occurred in the constitution of the firm or association, the firm or association as reconstituted as well as partners or members of the firm or association, as it existed before reconstitution, shall jointly and severally be liable to pay any tax including penalty, if any, due from such firm or association for any period before its reconstitution......of mohalla najhai bazar, jhansi. it has been asserted that they had nothing to do with the firm jhansi kirana stores though they had purchased some goods of m/s. jhansi kirana stores for rs. 9,100 but were not the transferees of the business of that firm. the collector, jhansi, issued a recovery certificate which was forwarded to the tehsildar, jhansi. the citation was in the name of sri chandra kant alias chotey lal. the citation was not served on any person or partner but was left on the shop. on enquiry it was revealed that the sales tax officer had directed that the recovery of sales tax dues be made from the firm m/s. laxmi kirana company and its partners and consequently the citation for recovery of the amount was issued against the partners of laxmi kirana company......
Judgment:

K.N. Seth, J.

1. This petition is directed against the proceedings initiated by the Sales Tax Officer, Jhansi, for recovery of sales tax dues amounting to Rs. 64,370.08 due from M/s. Jhansi Kirana Stores, Bara Bazar, Jhansi, in respect of the assessment years 1967-68 to 1972-73.

2. The case set up by the petitioners is that Laxmi Kirana Company is a registered partnership firm of which the partners are : Chandra Kant alias Chotey Lal son of Sri Ram Gopal, Sunder Lal son of Sri Ram Gopal, Smt. Ram Kali Devi wife of Sri Ram Gopal and Smt. Savitri Devi widow of Raghubir, all residents of Mohalla Najhai Bazar, Jhansi. It has been asserted that they had nothing to do with the firm Jhansi Kirana Stores though they had purchased some goods of M/s. Jhansi Kirana Stores for Rs. 9,100 but were not the transferees of the business of that firm. The Collector, Jhansi, issued a recovery certificate which was forwarded to the Tehsildar, Jhansi. The citation was in the name of Sri Chandra Kant alias Chotey Lal. The citation was not served on any person or partner but was left on the shop. On enquiry it was revealed that the Sales Tax Officer had directed that the recovery of sales tax dues be made from the firm M/s. Laxmi Kirana Company and its partners and consequently the citation for recovery of the amount was issued against the partners of Laxmi Kirana Company. According to the petitioners, the sole proprietor of Jhansi Kirana Stores was one Sri Govind Das. The petitioners made a representation but no orders have been passed on it. The grievance raised by the petitioners is that they were not given any notice or any opportunity to file any objection and without deciding the question whether the petitioners and other partners were transferees under Section 3-C(2) of the Sales Tax Act the issuance of recovery certificate against the petitioners and other partners was illegal, arbitrary and against the principles of natural justice.

3. In the counter-affidavit filed by the Sales Tax Officer it has been stated that Sri Ram Gopal and other members of the family originally carried on kirana business under the name and style of M/s. Jagannath Ram Gopal, Bara Bazar, Jhansi. The firm was surveyed by the Sales Tax Officer, S.I.B., which revealed several irregularities. Thereafter the firm was closed. When notices for assessment proceedings were issued no one turned up and ex parte orders were passed for the assessment years 1962-63 to 1967-68 creating a tax liability of over rupees two lacs. Thereafter at the same place Sri Ram Gopal carried on business under the name and style of Jhansi Kirana Stores. The sales tax for the assessment years 1967-68 to 1972-73 were assessed at Rs. 64,370.08. Thereafter at the same place of business the members of the same family carried on business under the name and style of M/s. Laxmi Kirana Company. This firm was surveyed by the Sales Tax Officer, S.I.B., on 11th September, 1973, when Sri Ram Gopal was found present. Certain vouchers issued in the name of Jhansi Kirana Stores were also recovered which indicated that Sri Ram Gopal carried on business under the name of Jhansi Kirana Stores as also under the name and style of M/s. Laxmi Kirana Company. It has further been stated that originally only three persons were shown as partners of the firm M/s. Laxmi Kirana Company but for the assessment year 1976-77 one more person was added to the partnership of which no information was furnished to the sales tax authorities.

4. In the rejoinder affidavit it has been reiterated that the petitioners had no concern with the business in the name of Jhansi Kirana Stores and it was not a joint Hindu family business and Ram Gopal had no concern with Laxmi Kirana Company.

5. Except for the bare statement that the petitioners had no concern with Jhansi Kirana Stores they have not adduced any material or evidence to substantiate their allegation. Admittedly petitioners Nos. 2 and 3 are the sons of Ram Gopal and another partner Smt. Ram Kali Devi is the wife of Ram Gopal. The Sales Tax Officer did make enquiries and on the basis of the material obtained honestly came to the conclusion that M/s. Laxmi Kirana Company was run by the members of the family of Ram Gopal who had earlier carried on business under the name and style of M/s. Jhansi Kirana Stores in the same premises. The conclusion drawn by the Sales Tax Officer is based on credible evidence in his possession. Section 3-C of the Act provides for liability to tax of a dissolved firm. The proviso appended to the section lays down that where it is found that a change has occurred in the constitution of the firm or association, the firm or association as reconstituted as well as partners or members of the firm or association, as it existed before reconstitution, shall jointly and severally be liable to pay any tax including penalty, if any, due from such firm or association for any period before its reconstitution. This provision enables the sales tax department to proceed to recover sales tax dues of the family firm M/s. Jhansi Kirana Stores from the firm M/s. Laxmi Kirana Company and the members of the defaulting family firm.

6. It appears that an objection was made before the Sales Tax Officer by the petitioners against the recovery proceedings. If the petitioners are so advised, they may pursue the matter. The Sales Tax Officer shall decide the objection after giving an opportunity to the petitioners in accordance with law.

7. With these observations the petition is dismissed with costs.


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