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The Deputy Commissioner of Commercial Taxes Vs. A. Hajee Abdul Shukoor - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case Nos. 339 and 340 of 1978 (Revision Nos. 116 and 117 of 1978)
Judge
Reported in[1980]45STC159(Mad)
AppellantThe Deputy Commissioner of Commercial Taxes
RespondentA. Hajee Abdul Shukoor
Advocates:Additional Government Pleader
DispositionPetition dismissed
Cases ReferredState of Punjab v. Jullundur Vegetables Syndicate
Excerpt:
- .....provision in the 1939 act, which is the essential basis of taxation, no such undertaking by the taxing authorities to assess a dissolved firm and its dealings can be thought of. the learned government pleader would, however, contend that the absence of such a provision would not matter. the tribunal would not agree with him. hence these tax cases.2. the matter is both intrinsically and extrinsically concluded; intrinsically in the sense that the residuary clause dealing with the repeal of the tamil nadu act 9 of 1939 provides in sub-clause (e) of section 61(1)(ii):the repeal of the said act by clause (i) shall not affect...(e) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as.....
Judgment:

T. Ramaprasad Rao, C.J.

1. The Deputy Commissioner of Commercial Taxes, Tiruchirapalli, has filed these tax cases questioning the order of the Sales Tax Appellate Tribunal, Main Bench, dated 17th March, 1977. Inter alia, the surviving question which was the main contention before the Tribunal was whether an assessment could be made on the turnover of a partnership firm, which has been dissolved, by invoking the provisions of the Tamil Nadu General Sales Tax Act of 1939. The admitted fact is that the respondent, an assessee-firm, was dissolved with effect from 31st March, 1959. The course of litigation relating to the turnover of dealings in hides and skins has been a prolonged one and it, therefore, appears that even in the year 1979, we are concerned with the assessments of 1955-56 and 1956-57. The question which was mooted in the main before the Tribunal was whether an assessment could be undertaken by the tax authorities notwithstanding the admitted fact that the firm in question has been dissolved with effect from 31st March, 1959, when the provisions of the Tamil Nadu General Sales Tax Act of 1939 were in force. No doubt, under the provisions of the Tamil Nadu General Sales Tax Act of 1959, a special section was introduced under Section 19-A, which enabled the authorities to undertake assessments on firms, which have been dissolved. But the question is whether there was such a taxing provision under the 1939 Act. The learned counsel questions the order of the Tribunal which gave relief on the ground that, in the absence of a taxing provision in the 1939 Act, which is the essential basis of taxation, no such undertaking by the taxing authorities to assess a dissolved firm and its dealings can be thought of. The learned Government Pleader would, however, contend that the absence of such a provision would not matter. The Tribunal would not agree with him. Hence these tax cases.

2. The matter is both intrinsically and extrinsically concluded; intrinsically in the sense that the residuary clause dealing with the repeal of the Tamil Nadu Act 9 of 1939 provides in Sub-clause (e) of Section 61(1)(ii):

The repeal of the said Act by Clause (i) shall not affect...

(e) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such fine, penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.

3. This is, therefore, a straight answer to the non-availability of the taxing power with the taxing authorities to get into the net of taxation the dealings of a dissolved firm which was functioning when the 1939 Act was in force. We said extrinsically also because the order of the Tribunal is unassailable, for, the principle had been laid down by the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 S.T.C. 326, where the court said that unless there is a statutory provision permitting the assessment of a dissolved firm, no assessment of a firm after its dissolution can be made under the quondam East Punjab General Sales Tax Act of 1948. A similar question is now the poser before us. Applying the principle and ratio of the Supreme Court in the above case and having regard to the provisions contained in Section 61(l)(ii)(e), the authorities are not enabled to bring to tax the dealings of dealers, which functioned under the 1939 Act, which did not provide for a power to assess such dealings in so far as they relate to the dissolved firm.

4. The tax cases are dismissed.


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