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Ganesha Narayana Hegde Doddamane Vs. Commercial Tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberCriminal Revision Petition Nos. 470, 471 and 472 of 1976
Judge
ActsKarnataka Sales Tax Act - Sections 13(3) and 13(4); ;Code of Civil Procedure (CPC), 1908 - Sections 421; Indian Partnership Act - Sections 25
AppellantGanesha Narayana Hegde Doddamane
RespondentCommercial Tax Officer and anr.
Appellant AdvocateT.S. Ramachandra, Adv.
Respondent AdvocateT.J. Chouta, High Court Government Pleader and ;B. Veerabadrappa, Adv.
Cases ReferredV. V. Ali Koya Haji v. Assistant Commissioner of Sales Tax
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 9: [v.g. sabhahit, j] jurisdiction of civil courts suit for declaration held, entry made by the revenue authorities is always subject to the declaration that may be granted by the civil court. .....the act itself provided for the recovery of tax from certain 'other persons', who are debtors to a firm liable to pay tax. such debtors, although neither dealers nor assessees, are none the less liable to pay the tax to the extent the amount is due from them to the firm. to meet the case of such 'other persons' the amendment was made in sub-section (3) of section 13 and the words 'or any other person' were added. it cannot, therefore, be inferred that the said words used in sub-section (3) of section 13 cover up the case of partners of a firm so as to make them liable to the extent of their personal assets as distinguished from the assets of the firm held by them. 5. the learned counsel for the petitioners also relied on v. v. ali koya haji v. assistant commissioner of sales tax.....
Judgment:
ORDER

Lal, J.

1. These are three criminal revision petitions presumably under section 13(4) of the Karnataka Sales Tax Act (hereinafter to be referred as the 'Act') against the order of the J.M.F.C., Siddapur, issuing a distress warrant to the Deputy Commissioner, North Kanara, Karwar, to recover the amount as arrears of land revenue.

2. Since a common question of law and fact arises, these three petitions can be disposed of by a single order.

3. The uncontroverted facts are that M/s. Vigneshwara Company is a registered partnership firm, and it is a dealer as such to pay the sales tax. The petitioners as well as some of the respondents are the partners of the firm. The Commercial Tax Officer passed an assessment order against the firm and the proceedings under section 13(3)(b) of the Act for recovery are being initiated against the partners of that firm. In view of section 421 of the Code of Criminal Procedure, for which a compliant was filed by the Commercial Tax Officer before a Magistrate, a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue, could be issued. The learned Magistrate has done so and an objection is taken that the said warrant is likely to result in the recovery of amount as arrears of land revenue from the personal assets of the partners as distinguished from the assets that may be held by them on behalf of the firm. The learned counsel for the petitioners pointed out with reference to State of Punjab v. Jullundur Vegetables Syndicate : [1966]2SCR457 that for the purpose of realisation of sales tax, although the firm could be treated a legal entity, none the less, the provisions of the Indian Partnership Act regulating the relationship between the partners and their liability to third parties have, except in so far as those provisions are expressly or by necessary implication incorporated in the provisions of the Act, no relevance in the proceedings. The learned Magistrate has availed of the provision of that Act contained in section 25 and has held that the partners are jointly and severally liable to pay the tax, meaning thereby, that the personal property of the partners is also liable. The learned Magistrate draws that inference from section 25 and says that every partner is liable with all the other partners and also severally for all acts of the firm done while he is a partner. In view of the observation of their Lordships in State of Punjab : [1966]2SCR457 , the view taken by the learned Magistrate cannot be sustained. Only such a provision contained in the Partnership Act will be amenable to the proceeding, if the said provision can be construed to be incorporated in the provisions of the Act either expressly or by necessary implication. Only to that extent, in my opinion, the principle, that the firm acts through its partners and that the proceedings can be initiated against the partners in the name of the firm, is to be incorporated in the Act. That being so, the compliant filed by the Commercial Tax Officer against the partners for and on behalf of the firm, will be considered a valid complaint. After all, it was only a matter of detail that either the firm's name was mentioned in the title head of the complaint in the beginning and thereafter its partners were described or in the title head first the partners were described and thereafter it was recited that they were being proceeded for and on behalf of the firm. As such, the objection of the learned counsel with reference to the title head of the complaint may not be very material.

4. The crux of the matter is, that the order of the learned Magistrate by itself did not make a distinction between a case where the amount is to be recovered as arrears of land revenue from the assets of the firm or a case where the amount is recoverable as arrears of land revenue not only from the assets of the firm, but also from the personal property belonging to the partners. The learned counsel rightly contends that the partners will not be personally liable for payment of tax. Rather their liability shall extend to the assets of the firm that may be found in their possession. Any principle of the Indian Partnership Act making a partner personally liable for the debts of a firm will not be incorporated in provisions of the Act. For that some express provision in the Act itself could be availed of by the department. No such provision can be pointed out. In that connection, reference was made by the learned Magistrate to section 15(2) of the Act. But that section applies to a dissolved firm and manifestly the present firm is not a dissolved firm. Similar reference was made to section 25 of the Indian Partnership Act. But, in view of the aforesaid observation of the Supreme Court, that section will not helpful, in so far as, it could not be inferred that the personal property of the partners was also liable for payment of the tax. The learned State Public Prosecutor invited my attention to the words 'or other person' inserted by Act 9 of 1970 in sub-section (3) of section 13 of the Act. The argument was stretched by saying that these words will include even the partners of a firm, which is a dealer. In my opinion, that part of the argument will not be correct. Under section 14, the Act itself provided for the recovery of tax from certain 'other persons', who are debtors to a firm liable to pay tax. Such debtors, although neither dealers nor assessees, are none the less liable to pay the tax to the extent the amount is due from them to the firm. To meet the case of such 'other persons' the amendment was made in sub-section (3) of section 13 and the words 'or any other person' were added. It cannot, therefore, be inferred that the said words used in sub-section (3) of section 13 cover up the case of partners of a firm so as to make them liable to the extent of their personal assets as distinguished from the assets of the firm held by them.

5. The learned counsel for the petitioners also relied on V. V. Ali Koya Haji v. Assistant Commissioner of Sales Tax (Assessment) [[1976] 37 S.T.C. 618]. That case related to a dissolved firm and the salary of one of the partners was sought to be attached under a distress warrant. It was held that the salary being a personal asset of the partner could not be attached, as there was no provision in the Sales Tax Act giving a right to that attachment. Similar is the provision in the present case. The order of the learned Magistrate cannot be interpreted so as to mean that the personal assets belonging to the petitioner-partners are liable for payment of tax.

6. In this view of the matter, the order made by the learned Magistrate need be clarified. The warrant issued to the Deputy Commissioner, North Kanara, Karwar, to recover the amount as arrears of land revenue, shall not enable the said authority to recover the amount from the personal assets of the partners including the petitioners. The said warrant shall, of course, be executable against them in so far as the assets of the firm may be found in their possession. With this clarification made in the order of the learned Magistrate, these three petitions are dismissed.

7. A copy of this order shall be kept in the other connected two petitions.

8. Petitions dismissed.


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