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Patnaik and Co. (Pvt.) Limited Vs. Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 243 of 1962
Judge
Reported in[1963]14STC738(Orissa)
AppellantPatnaik and Co. (Pvt.) Limited
RespondentCommissioner of Sales Tax and anr.
Appellant AdvocateGovind Das, Adv.
Respondent AdvocateR.K. Ghosh, Adv.
DispositionApplication dismissed
Cases ReferredUnion of India v. Elbridge Watson
Excerpt:
.....served under sub-section (4) of section 13 ;or' emphasis is laid on 'any money is due or may become due to a dealer'.the argument proceeds that as instalments had been granted by the certificate officer for payment of rs. 5. both the contentions fail......tax under section 13-a of the act is not applicable to the petitioner by further extension of the legal fiction under section 19; and(ii) after the grant of instalment by the certificate officer, the only money due under section 13-a from the petitioner was the monthly instalment amount, as and when it falls due, and not the entire sales tax due.3. to appreciate the contentions, section 19(1) of the act as it stood prior to its amendment, may be quoted-'19. (1) when the ownership of the business of a registered dealer is entirely transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee as if he were the registered dealer ; and the transferee shall within thirty days of the transfer apply for registration.....
Judgment:

G.K. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution of India. The facts of the case may be stated in a narrow compass. Messrs Patnaik & Company was dissolved on 31st March, 1959, and the entire business was transferred on that day to Messrs Patnaik & Company (Private) Limited (the petitioner) which had accepted the sales tax liability of the dissolved concern. For quarters ending 31st March, 1956 to 31st March, 1957, the transferor was liable to pay sales tax dues of Rs. 1,43,794-30 nP. For realisation of this amount a certificate case had been started. According to the petitioner, by consent of parties, the Certificate Officer granted payment by instal ments at the rate of Rs. 5,000 per month from March, 1962. But the Commissioner of Sales Tax finds that the department had given no consent. The petitioner was making payments in accordance with the order of the Certificate Court. During the pendency of the aforesaid pro ceeding, the concerned Sales Tax Officer gave a direction on 26th March, 1962, under Section 13-A of the Orissa Sales Tax Act, 1947 (hereinafter called the Act) to the Transport Controller to pay into treasury a sum of Rs. 63,794-30 nP. payable by the State Transport Controller to the petitioner. Against this order the petitioner filed a revision before the Commissioner of Sales Tax who rejected the application on nth June, 1962. The writ application has been filed for quashing this order.

2. Mr. Das raised two contentions--

(i) By the transfer of the ownership of the business in favour of the petitioner, only the liability to pay tax in respect of such business remaining unpaid at the time of the transfer was undertaken by the transferee under Section 19 of the Act. The mode of recovery of tax under Section 13-A of the Act is not applicable to the petitioner by further extension of the legal fiction under Section 19; and

(ii) After the grant of instalment by the Certificate Officer, the only money due under Section 13-A from the petitioner was the monthly instalment amount, as and when it falls due, and not the entire sales tax due.

3. To appreciate the contentions, Section 19(1) of the Act as it stood prior to its amendment, may be quoted-

'19. (1) When the ownership of the business of a registered dealer is entirely transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee as if he were the registered dealer ; and the transferee shall within thirty days of the transfer apply for registration under Section 9.'

The legal fiction introduced is that though the transferee had no previous business at all and had no corresponding liability to pay the tax, by virtue of the transfer of the entire business he is treated as a registered dealer liable to pay the tax remaining unpaid on the date of transfer by the transferor. Mr. Das contends that the operation of the legal fiction is to be confined only to the determination of the liability to pay and not to the mode of recovery of the tax. Reliance is placed on Abdul Kassim v. First Additional Income-tax Officer, Karaikudi [1958] 33 I.T.R. 466. This contention is devoid of force on a pure elementary analysis. By virtue of the legal fiction the transferee is treated as a registered dealer and immediately comes within the definition of ''dealer' under Section 2(c) of the Act to whom the various provisions of the Act would apply. The aforesaid decision on which Mr. Das placed reliance was set aside by the Supreme Court in First Additional Income-tax Officer, Karaikudi v. T. M. K. Abdul Kassim [1962] 46 I.T.R. 149 and should not have been cited. The Supreme Court relied upon its own previous decision in Additional Income-lax Officer v. E. Alfred3, which also set aside another decision of the Madras High Court on which the aforesaid decision was based. It would be instructive to refer to a passage in Additional Income-tax Officer v. E. Alfred [1962] 44 I.T.R. 442 :-

'When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact, it is not...The word 'assess ment' bears different meanings, and, in one sense, it comprehends the entire process of computation and levy of the tax. It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction, which has to be fully worked out, without allowing the mind 'to boggle' ....'

In First Additional Income-lax Officer, Karaikudi v. T.M. K. Abdul Kassim2, their Lordships observed :-

'It was held that the fiction in Sub-section (2) of Section 24B does not come to an end when the assessment proceedings are over, but logically extends to the collection of the tax from the legal representative of the assessee....It, therefore, follows that if the legal representa tive, who was proceeded against under Section 24.B(2), must be deemed to be an assessee for the purpose of assessment, levy and collection of tax, the provisions of sections 45, 46(1) and also 46(2) must apply to him.'

These two decisions of the Supreme Court conclude the matter and any contention on the basis of the overruled Madras decision is hardly tenable.

4. The second contention of Mr. Das is based on Section 13-A(1)(a) of the Act which is as follows :

'13-A. Special mode of recovery.-(1) Notwithstanding anything contained in Section 13 or any law or contract to the contrary, the Commissioner or any officer appointed under Sub-section (3) of Section 3 may, at any time or from time to time, by notice in writing (a copy of which shall be forwarded to- the dealer at his last address known to the officer issuing the notice) require-

(a) any person from whom any money is due or may become due to a dealer who has failed to comply with a notice served under Sub-section (4) of Section 13 ; or'

Emphasis is laid on 'any money is due or may become due to a dealer'. The argument proceeds that as instalments had been granted by the Certificate Officer for payment of Rs. 5,000 per month, the Sales Tax Officer had no jurisdiction under the sub-section to direct attach ment as there was no money due excepting what was due under the instalments which were being regularly paid. On a pure construction of law, this contention is without substance. The opening words of Section 13-A indicate that it would be operative notwithstanding any thing contained in Section 13 or any law. The section therefore confers wide and unrestricted powers on the Sales Tax Officer to resort to the mode of recovery prescribed under the section despite the pendency of another proceeding in the Certificate Court. The Sales Tax Officer is not bound to treat what was granted under the instalment order as the only money payable. Reliance was placed on a single Judge decision of the Calcutta High Court in Elbridge Watson v. R.K. Das [1951] 19 I.T.R. 538. This decision was set aside by a Division Bench decision in Union of India v. Elbridge Watson [1951] 20 I.T.R. 400. Further on facts the Commissioner of Sales Tax held that the department never agreed to grant instalments in favour of the petitioner. This Court in exercise of its jurisdiction under Article 226 cannot take a different view.

5. Both the contentions fail. The application is accordingly dismissed with costs.

R.L. Narasimham, C.J.

6. I agree.


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