1. These are revision petitions against the conviction of the petitioner by the Fifth Presidency Magistrate, Madras, in C. T. Nos. 92 and 93 of 1955.
2. The petitioner, one P. Hanumanthiah, has been prosecuted for failure to pay the balance of sales tax for 1950-1951 and 1951-1952. That he was a partner along with one A.P. Subramania Mudaliar and that they were doing business under the name and style of Messrs P.H.A.P. Subramania Mudaliar and Co., is not disputed. The complaints have been undoubtedly laid against the petitioner and A.P. Subramania Mudaliar for offences under Section 15(b) of the Madras General Sales Tax Act, 1939. If both of them have been prosecuted, as has been pointed out in my decision in Behara Latchanna Patnaick v. State 1952 M.W.N.187, then it can well be contended that the firm was being prosecuted. Under the Act, if a firm is assessed to tax, it is the firm that must be proceeded against and prosecuted for non-payment of tax. It has been made quite clear by the decision of Subba Rao, J., in Public Prosecutor v. K. Jacob Nadar : AIR1951Mad886 , that for the purpose of assessment 'the firm is treated as one entity and that in default of payment pursuant to the notice, the firm is liable to be prosecuted. It is true that under Rule 19 of the Madras General Sales Tax Rules, if a dealer or licensee enters into a partnership with regard to his business, he shall report the fact to the assessing authority within thirty days of his entering into such a partnership and that the dealer or licensee and the partner shall jointly and severally be responsible for the payment of the tax leviable under the Act. But that rule does not override the provisions of the Act which enable the authorities concerned to deal with the firm as one entity for the purpose of assessment and prosecution.' In these cases what happened was, after the complaints were laid against the two partners, either on account of absence or some other reason, one of the accused, via., the second accused at the time of the complaints, was separated. In short, each case was split up into two and the petitioner alone was proceeded against. It has already been held that in case a firm has to be assessed, for non-payment it is the firm that must be prosecuted. It may consist of two or more partners, in which case all of them may be proceeded against by bringing them on record as accused, in which case, as already pointed out, it may be contended that since the firm consists of these partners, it is the firm that is being prosecuted. Strictly speaking, when a firm is being prosecuted, it is against the name of the firm that the prosecution must lie and not merely against the partners as such. But, not to stand on mere technicalities, if the entire partners had been brought on record, there is no objection to treating the entire partners as partners of the firm and the firm being represented by its partners. Then it is the firm that is deemed to be prosecuted as all the partners are before the Court. But, if in the course of the prosecution, the case against one of the partners of the firm is separated, then it ceases to be a prosecution against the firm, as the firm then collapses by one of the partners being proceeded against separately, unless it is specifically stated in the complaint that the prosecution is against the firm as such, and the name of the firm also is mentioned therein. If the firm as such is prosecuted under its name and style, then it does not matter whether all the partners are before the Court or only some of them are before the Court. What happened here is that the second accused, against whom also the original complaints were laid, the cases against him alone were separated in the course of the trial, and the cases against him having been split up, the cases against the petitioner alone cease to be against the firm as such, and if the firm is not prosecuted, it has been held that the conviction cannot stand against the individual partner alone. It is true that the petitioner has admitted in his statement that he and Subramania Mudaliar were partners of the firm and that he failed to pay the balance. But his admission has no legal force inasmuch as the prosecution cannot be laid against him alone and the trial cannot be proceeded against the petitioner alone individually. I am, therefore, reluctantly compelled to set aside the convictions and sentences on the ground that the prosecutions have not been against the firm as such and that, therefore they must fail.
3. In the end, the convictions and sentences are set aside and the accused acquitted. The fines, if paid, will be refunded.