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Deputy Commissioner of Sales Tax Vs. Kelukutty - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 6 and 9 of 1977
Judge
Reported in[1978]42STC108(Ker)
AppellantDeputy Commissioner of Sales Tax
RespondentKelukutty
Advocates:The Government Pleader
DispositionRevision dismissed
Cases ReferredState of Punjab v. Jullundur Vegetables Syndicate
Excerpt:
- .....cases raise the question as to whether the same set of partners constituting two different firms or partnerships can, in the eye of law, be regarded as one person, or should be treated as two separate assessable units or entities for the purposes of the general sales tax act, 1963. the appellate tribunal took the view that the turnover from sales by one of the partnerships had not been brought into account by the other partnership constituted by the same partners as the first. the tribunal took the view that in law the same partners constituting two different partnerships must be regarded as two separate persons or assessable units in the eye of law and, therefore, separate legal existence of the two partnerships was possible and permissible. but for the purpose of determining.....
Judgment:

V.P. Gopalan Nambiyar, C. J.

1. These two tax revision cases raise the question as to whether the same set of partners constituting two different firms or partnerships can, in the eye of law, be regarded as one person, or should be treated as two separate assessable units or entities for the purposes of the General Sales Tax Act, 1963. The Appellate Tribunal took the view that the turnover from sales by one of the partnerships had not been brought into account by the other partnership constituted by the same partners as the first. The Tribunal took the view that in law the same partners constituting two different partnerships must be regarded as two separate persons or assessable units in the eye of law and, therefore, separate legal existence of the two partnerships was possible and permissible. But for the purpose of determining whether there had been what is generally referred to as interlacing and interlocking, the Tribunal remanded the proceedings back to the Sales Tax Officer. The learned Government Pleader has filed these revisions, as the revenue is aggrieved by the finding that in law two partnerships constituted by the same identical persons have to be viewed as two separate legal entities or assessable units for purposes of sales tax. Counsel for the revenue placed reliance on the decision of the Punjab and Haryana High Court in R N. Oswal Hosiery & Mahabir Woollen Mills v. Commissioner of Income-tax, Punjab [1968] 70 I.T.R. 843. That has surveyed the development of the law in regard to this aspect of the matter beginning from the early dictum in the decision of a Division Bench of the Bombay High Court consisting of Beaumont, C. J. and Chagla, J. (as he then was) in Vissonji Sons & Co. v. Commissioner of Income-tax, Central [1946] 14 I.T.R. 272. That dictum in the decision was not accepted by a subsequent Division Bench ruling of the Bombay High Court in Jesingbhai Ujamshi v. Commissioner of Income-tax, Bombay Mofussil [1950] 18 I.T.R. 23 and again in Jeshingbhai Ujamshi v. Commissioner of Income-tax, Bombay [1955] 28 I.T.R. 454. In Mahendra Kumar Ishwarlal & Co. v. State of Madras [1968] 21 S.T.C. 72, the Madras High Court took the view that the two partnerships formed by the same set of partners constitute only one entity or legal person for purposes of assessment. The same was the view taken by the Andhra Pradesh High Court in Additional Commissioner of Income-tax, A.P. v. M. Venkata Narasimha Rao & Co. [1976] 104 I.T.R. 28 There is a recent decision of the Supreme Court in Commissioner of Income-tax, Madras v. R.M. Chidambaram Pillai [1977] 106 I.T.R. 292 (S.C.), which takes the view that a firm is not a legal person even though it has some attributes of legal personality. In income-tax law a firm is a unit of assessment, by special provisions, but not a full legal person. It was ruled that as a contract of employment requires two distinct persons, the employer and the employee, there cannot, in strict law, be a contract of service between a firm and one of its partners. On that footing, it was held that payment of salary to a partner represents a special share of the profits and the salary paid to a partner retains the same character as the income of the firm. On the actual facts and the limited principle that fell for consideration, namely, the nature of the payment made by a firm to one of its partners, the decision is capable of being understood in its proper perspective. But it appears to us that the decision directly and more pertinently in point for the purposes of these revision petitions is the earlier decision of the Supreme Court in State of Punjab v. fullundur Vegetables Syndicate''. There a three-Judge Court speaking through Subba Rao, J., ruled that although in the partnership law a firm is not a legal entity but in law consists of only persons who are partners for the time being, as far as tax law, both income-tax and sales tax, is concerned, it is a legal entity. The principle was stated in clear terms on an examination of the provisions of the concerned taxing statute. That appears to run through the provisions of the Sales Tax Act, the statute with which we are concerned in the instant case. The definition of the term 'dealer' under Section 2(viii) of the Sales Tax Act includes a firm, just as the definition of a 'person' under the Income-tax Act includes a firm. We are of the opinion that the decision of the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 S.T.C. 326 (S.C.). is directly in point and applies to the instant case. Being so, the direction made by the Appellate Tribunal was correct and calls for no interference.

2. We dismiss these tax revision cases with no order as to costs.


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