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S. Ujjal Singh Vs. the Excise and Taxation Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtPunjab and Haryana High Court
Decided On
Case Number Civil Writ No. 848 of 1965
Judge
Reported in[1967]20STC35(P& H)
AppellantS. Ujjal Singh
RespondentThe Excise and Taxation Officer
Appellant Advocate Bhagirath Dass and; S.K. Hiraji, Advs.
Respondent Advocate K.S. Keer, Adv. for;Adv.-General
DispositionPetition allowed
Cases ReferredKuldip Singh v. Tehsildar
Excerpt:
.....judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. orderr.s. narula, j.1. in 1954 a partnership firm comprising of late milap singh and one kirpal singh, carrying on dry fruits business at amritsar under the name and style of ' peshawar dry fruit company', was duly registered as a 'dealer' under the punjab general sales tax act. the firm was admittedly dissolved on 6th june, 1962. milap singh died in december, 1962, according to the petitioner who is his son. according to the respondent, milap singh died in december, 1963. this controversy does not, however, make any difference so far as the present case is concerned. on 25th june, 1964, the assessing authority passed an order of assessment of sales tax for the accounting period 1960-61, i.e., for the year ending 31st march, 1961, creating a demand for rs. 5,449.61 against the partnership.....
Judgment:
ORDER

R.S. Narula, J.

1. In 1954 a partnership firm comprising of late Milap Singh and one Kirpal Singh, carrying on dry fruits business at Amritsar under the name and style of ' Peshawar Dry Fruit Company', was duly registered as a 'dealer' under the Punjab General Sales Tax Act. The firm was admittedly dissolved on 6th June, 1962. Milap Singh died in December, 1962, according to the petitioner who is his son. According to the respondent, Milap Singh died in December, 1963. This controversy does not, however, make any difference so far as the present case is concerned. On 25th June, 1964, the Assessing Authority passed an order of assessment of sales tax for the accounting period 1960-61, i.e., for the year ending 31st March, 1961, creating a demand for Rs. 5,449.61 against the partnership firm. According to the respondent there was another outstanding demand of Rs. 209.56 in respect of the year ending 31st March, 1960. The amounts in question not having been paid, a recovery certificate was issued, in pursuance of which the Assistant Collector First Grade and Excise and Taxation Officer, Amritsar, issued notice dated 24th February, 1965 (copy annexure 'B' to the writ petition), requiring Ramesh Kumar peon of Excise and Taxation Department to produce ' Peshwar Dry Fruit Company, Bazar Gujran, Amritsar,' on 3rd March, 1965, regarding the case of realisation of Rs. 5,619-17 (should be Rs. 5,659.17) on account of arrears of sales tax due from that firm. The petitioner appeared on the date fixed and the proceedings were adjourned to 10th March, 1965, on his furnishing an undertaking to appear on that date. On 10th March, 1965, the petitioner thought that he had been arrested and therefore submitted his application (copy annexure 'C to the writ petition), asking for being released on bail on the grounds that the petitioner had no connection or concern with the defaulter firm and that the petitioner's father, Milap Singh, who was a partner of the firm, had died about two years prior to that date. The petitioner also submitted that he was only a student at the time of the dissolution of the firm and was not liable in any manner. The petitioner was allowed to go home on the condition that he appeared again before the Assistant Collector on 25th March, 1965. On that date the Assistant Collector passed an order (copy annexure ' B ' to the writ petition), stating that the petitioner was not willing to pay the sum of Rs. 5659.17 on account of arrears of sales tax and that, therefore, the petitioner should be sent to the revenue lock-up for ten days. The order resulted in the petitioner being sent to the lock-up. The petitioner then moved this Court on 31st March, 1965, under Article 226 of the Constitution to quash the impugned order of the Assistant Collector of 25th March, 1965, and to restrain the respondent from putting the petitioner under arrest in pursuance of the recovery order. The Motion Bench (S. B. Capoor and I. D. Dua, JJ.), while admitting the writ petition on the day that it was presented, issued notice in the stay matter, returnable for 2nd April, 1965. On the last-mentioned date the question of stay was decided by P. D. Sharma, J., after hearing both sides. The learned Judge by his detailed order suspended the operation of the impugned order.

2. In the written statement of the Excise and Taxation Officer, Amritsar, the facts that Milap Singh and Kirpal Singh constituted a partnership firm and that the said firm was registered in 1954 have been admitted. Dissolution of the firm on 6th June, 1962, and death of the petitioner's father in December, 1963 (instead of December, 1962) have also been admitted. The impugned order has been justified on the grounds that after the dissolution of the erstwhile assessee-firm the business was carried on by Milap Singh deceased in the same premises with his sons, including the petitioner, as a Hindu undivided family and that Milap Singh having died, his son Ujjal Singh (the petitioner in the instant writ petition), being a member of the Hindu undivided family, is bound to pay the amount due from his father as a transferee.

3. I think Shri Bhagirath Dass, learned counsel for the petitioner, is right in contending that in the face of the admission about the liability being that of the partnership firm, no one who was not a partner of the assessee-firm can be put under arrest in recovery proceedings of any amount due from the firm in the absence of any statutory provision authorising such action. The entire amount of the demand for the recovery of which the petitioner has been ordered to be arrested, relates to the period of the erstwhile partnership before the dissolution and no part of the demand relates to any period during which the Hindu undivided family was carrying on the business. It has further been argued that even if the liability was of a Hindu undivided family, the petitioner would not have been liable to be arrested merely because he was a member of such a family. Reliance has in this connection been placed on a Division Bench judgment of this Court (Bishan Narain and Grover, JJ.) in Kuldip Singh v. Tehsildar, Amritsar [1958] 34 I.T.R. 164. In that case it was held that Section 69 of the Punjab Land Revenue Act is meant to apply to natural persons and not to artificial persons, and arrears of land revenue cannot be recovered under that provision from a defaulter, who was a mere legal entity but not a natural person, by his arrest, detention or confinement in jail. The Division Bench judgment of this Court is a complete answer to the otherwise untenable defence of the respondent to the attack on the impugned order. In my opinion, the learned Assistant Collector had not at all applied his mind to the legal position and had acted rather carelessly in not hearing the objections, which had been raised by the petitioner in writing on 10th March, 1965, and adjudicating upon them before taking the drastic action of depriving the petitioner of his liberty, which he was not entitled in law to do.

4. Bakhshi Kuldip Singh, the learned counsel for the respondent, has referred me to the averment in paragraph 6 of the written statement of the Excise and Taxation Officer, Amritsar, to the effect that the petitioner himself had filed a return of the erstwhile firm for the quarter ending 30th June, 1960, duly signed by him. From this averment Bakhshi Kuldip Singh wants the Court to believe that the petitioner was himself a partner in the assessee-firm. It is impossible to make any such inference from the above-said averment, even if the allegations made therein were to be taken at their face value. I asked the learned State counsel if his client had entrusted him with the original return, so that it could be seen to clarify the capacity in which the petitioner had signed, if he had signed at all, and the circumstances in which he had appended his signatures to that return. The learned counsel showed his inability to produce the original return as it had not been given to him by the respondent. I would go to the length of holding that even if the petitioner had appended his signatures to the return in question otherwise than as a partner, it would not in any manner improve the case of the respondent.

5. No other point has been argued before me in this case.

6. For the foregoing reasons this writ petition is allowed with costs and the impugned order of the Assistant Collector directing the arrest of the petitioner passed on 25th March, 1965, is set aside and quashed. The respondent is hereby restrained and prohibited from arresting the petitioner in the recovery proceedings relating to any amount due from the firm- of which he was not a partner during the period to which the demand relates. Counsel's fee Rs. 400.


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