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Jagdish Kaur Vs. Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 234 of 1967
Judge
Reported in[1974]33STC522(Delhi)
AppellantJagdish Kaur
RespondentSales Tax Officer and ors.
Appellant Advocate Madan Bhatia, Adv
Respondent AdvocateB.N. Kirpal ; and Jagdeep Kishore, Advs.
DispositionPetition dismissed
Cases ReferredBombay State v. Parimal Brothers
Excerpt:
.....law, there was no provision permitting the legal representatives or heirs of a deceased assessed being assessed till the introduction of the amending section of the income-tax act, 1922. that section, i may mention, is section 24b of the act of 1922. 3. the petition is contested on behalf of the respondents, who are the sales tax oificer, the assistant commissioner, sales tax, and the delhi administration. the provision can best be construed by analysing the reasons which could have prompted the legislature to have a provision of this type. it is, thereforee, in the interest of both the state as well as the transferee that the certificate of registration granted to the business should ensure to the benefit of the transferee. it is clearly stated in the writ petition that the..........the business 'is transferred absolutely' and is purposely not limited to transfer by act of the owner. a transfer by way of lease is transfer by an act of the owner and mr. pal, thereforee, suggested that the general words 'transferred absolutely' should receive an ejusdem generis construction and should be limited to cases of transfer by the owner. but the mention of the specific case of a transfer by an act of the owner does not establish a genus and does not limit the generality of the preceding words. moreover by repeating the word 'transferred' after the word 'or', the section places the two classes of absolute transfers and transfers by way of lease in separate categories.5. thus, this is an authority for the proposition that a transfer includes a transfer even when there is.....
Judgment:

Dalip K. Kapur, J.

1. A question of some interest for the determination of the sales tax law as applicable to Delhi has arisen in this writ petition. The petitioner, Shrimati Jagdish Kaur, is the widow of Sq. Leader Ajit Singh, who resigned from the Indian Air Force sometime in 1956-57, and started the business of manufacturing steel doors and windows under the name of 'Steel Co.' He died on 26th April, 1963, and according to the averments in the writ petition, the petitioner succeeds as his heir by virtue of his will dated 12th September, 1960, and thereafter, she continued to carry on the business after her husband's death. At that time sales tax assessment proceedings were pending against the Steel Co. for the year 1962-63 and a notice was issued to the petitioner in that respect. The petitioner protested to the assessing authority on the footing that there was no provision in the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi, permitting an heir of a deceased dealer being assessed, particularly as during the accounting year in question it was the deceased who was doing the business. A copy of this letter is annexure A to the writ petition. This view was not accepted by the assessing authority. A sum of Rs. 2,920.75 was assessed as sales tax and the petitioner was directed to deposit the same.

2. Not being satisfied with the orders of the assessing authority, the petitioner instituted this writ petition under Article 226 of the Constitution of India and relied chiefly on the fact that under the corresponding income-tax law, there was no provision permitting the legal representatives or heirs of a deceased assessed being assessed till the introduction of the amending section of the Income-tax Act, 1922. That section, I may mention, is Section 24B of the Act of 1922.

3. The petition is contested on behalf of the respondents, who are the Sales Tax Oificer, the Assistant Commissioner, Sales Tax, and the Delhi Administration. On behalf of the respondents, reliance is placed on Section 17 of the Bengal Finance (Sales Tax) Act, 1941, which may be reproduced at this stage:

Transfer of business. -- Where the ownership of the business of a registered dealer is entirely transferred and the transferee carries on such business either in its old name or in some other name, the transferee shall for all the purposes of this Act (except for liabilities under this Act already discharged by such dealer) be deemed to be and to have always been registered as if the certificate of registration of such dealer had initially been granted to the transferee; and the transferee shall on application to the Commissioner be entitled to have the registration certificate amended accordingly.

4. This section shows that on a transfer of business, the transferee is to be treated as being the dealer and has to be deemed to be and to have always been registered as the dealer. The first question that arises for consideration is whether a property which passes at the death of an assessed is also included within the term of this provision. It has been held by a Division Bench of the Calcutta High Court in Bibhas Chandra Gon and Ors. v. The State of West Bengal and Anr. [1964] 16 S.T.C. 277, on a construction of this very Act, that the transfer contemplated by this section includes a transfer brought about by the death of the registered dealer. That was a case of an intestate succession and the observations of the court in this behalf are to be found at page 280 of the Report. It runs as follows:

The petitioners argue that Section 17 on its true construction applies to transfer of the business by act of the registered dealer and that it is not attracted to the case of intestate succession to the business. We have come to the conclusion that this contention is unsound and should be rejected. There is a transfer by operation of law in the case of intestate succession. The expression is transferred absolutely' is of wide import and is broad enough to include absolute transfers by operation of law including an absolute transfer on intestate succession. The section applies to all cases where the business 'is transferred absolutely' and is purposely not limited to transfer by act of the owner. A transfer by way of lease is transfer by an act of the owner and Mr. Pal, thereforee, suggested that the general words 'transferred absolutely' should receive an ejusdem generis construction and should be limited to cases of transfer by the owner. But the mention of the specific case of a transfer by an act of the owner does not establish a genus and does not limit the generality of the preceding words. Moreover by repeating the word 'transferred' after the word 'or', the section places the two classes of absolute transfers and transfers by way of lease in separate categories.

5. Thus, this is an authority for the proposition that a transfer includes a transfer even when there is intestate succession. It is submitted by Mr. Bhatia for the petitioner that the word 'transfer' in this provision should be restricted to transfers effected by the petitioner himself. Thus, the question is, whether this provision is limited to transfers inter vivos. It is also submitted that the word 'transfer' should be read as understood in the Transfer of Property Act. I do not agree that a limited meaning should be given to the word 'transfer' in these proceedings. There is no reason why the section should be restricted only to transfers effected by a living person such as sales or leases. The provision can best be construed by analysing the reasons which could have prompted the Legislature to have a provision of this type. When a business is transferred, it is obviously necessary for the State to continue to tax the registered dealer whoever he may be. In the case of a transfer, either by an act of the party or death, the State is only interested in proceeding to collect the tax whoever may be the dealer. The State is not particularly interested in the identity of the person who runs the business. In addition, the new dealer, whoever he may be, is equally interested in continuing the certificate of registration already granted to the transferor. It is, thereforee, in the interest of both the State as well as the transferee that the certificate of registration granted to the business should ensure to the benefit of the transferee. Construed in this way, I cannot see any reason why the Legislature should have intended to limit the operation of this section only to transfers made inter vivos. There is nothing in the provision which leads to any inconsistency if it is applied to transfers however they may have been effected. Where the transfer is made by a living person or by a dead person, which may be by will, or by the law of succession, the result is always the same. The effect in each case is that the business and all its assets cease to belong to the original owner and become vested in the new owner. It hardly matters as far as the mechanism of the sales tax law is concerned, whether the business was transferred by an act of the original owner or by reason of bids death. I may mention that the present transfer was in any case effected by a will. I do not think it makes any difference whether the transfer is effected in the lifetime of the original owner or after his death, or whether it is effected by a will or by the law of succession operating in the case of an intestate succession. Thus, I come to the conclusion that the proper construction to be placed on the section is that it also governs the case of the present petitioner.

6. Reference has also been made by the learned counsel for the respondents to the decision of the Bombay High Court reported as Collector of Sales Tax, Bombay State v. Parimal Brothers [1962] 13 S.T.C. 647. That was a case arising under the Bombay Sales Tax Act, 1953. The section there is 26(1) of the Bombay Act. There is a distinct provision in that Act that the transferor will pay the tax and the court held that this liability even extended to periods prior to the purchase. That was a case of transfer inter vivos and would not really affect the merits of the present case. There is no doubt that if there was a transfer inter vivos, the present section would certainly be attracted.

7. The next question is whether the liability to pay tax for a period prior to succeeding the business also arises under the provisions of Section 17 of the Bengal Finance (Sales Tax) Act, 1941, as reproduced already. It is clear from the language of the section that a legal fiction is created. The new owner or a transferee is deemed to be the registered dealer for all purposes. This would include him or her being the registered dealer even for the purpose of paying sales tax for a prior period, and also being liable to be assessed for the prior period if no assessment has already been made. I may note in conclusion that there are certain restrictions as to the applicability of this section which may now be noted as they have been noted in the aforementioned decision of the Bombay High Court.

8. The transferee is only liable to pay the arrears of sales tax and to be assessed to sales tax for a prior period, if the previous owner has not already paid the tax. Further, he must not only be a transferee of the business, but he must also carry on the business either in the old name or under a new name. Thus, if the petitioner has wound up the business or ceased to carry on the business, she would not be liable under this section at all. It is clearly stated in the writ petition that the petitioner did carry on the business. I reproduce para. 4 of the petition. It states:

That the petitioner carried on the business, as aforesaid, after the death of her deceased husband.

9. In view of these circumstances, the petitioner cannot succeed and the writ petition has to be dismissed. Bearing in mind the circumstances of the case, I leave the parties to bear their own costs.


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