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Bama Charan De Vs. Additional Commissioner of Commercial Taxes and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Sales Tax
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 377 (W) of 1962
Reported inAIR1964Cal332,68CWN525
ActsPartnership Act, 1932 - Section 45; ;Bengal Finance (Sales Tax) Act, 1941 - 16 and 17; ;Bengal Public Demands Recovery Act, 1913 - Section 4; ;Bengal Finance (Sales Tax) (Amemdment) Act, 1954
AppellantBama Charan De
RespondentAdditional Commissioner of Commercial Taxes and ors.
Appellant AdvocateGopal Chakravorti, ;R. Bhaduri, ;G. Pal and ;S.C. Ganguly, Advs.;N.C. Chakraborty and ;Kalyanbrata Ray, Advs.
Respondent AdvocateSmriti Kumar Rai Choudhury, Advs. for Oppsite Party No. 5
- .....partnerships were dissolved and hrisikesh became the sole owner of the co-operative book depot and bama charan de became sote owner of abhoy charan de and brother. this dissolution was effected by a registered deed of dissolution dated the ist september, 1955. inthis case, we are concerned with the co-operative book depot only. 2. after the dissolution, hrisikesh continued to cany on the said business, but no public notice of dissolution was given as contemplated by section 45 of the partnership act. hrisikesh died on the 10th february, 1957 leaving a will by which he bequeathed the said business to his son ramendra nath de. who became its sole proprietor and carried on the business. no intimation of the dissolution of the said partnership and the change of ownership was given to the.....

D.N. Sinha, J.

1. The facts in this case are briefly as follows: The petitioner Bama Charan De, andone Hrisikesh De carried on busniess, in partnership, as follows:-

1. Under the trade name of Co-operative 'Book Depot at 54 College Street, Calcutta, as 'Booksellers and Publishers.

2. Under the trade name of Abhoy Charan De and Brother at 20 Maharsht Debendra Road, Calcutta, in hardware materials.

On or about the last day of September, 1955, the partnerships were dissolved and Hrisikesh became the sole owner of the Co-operative Book Depot and Bama Charan De became sote owner of Abhoy Charan De and Brother. This dissolution was effected by a registered Deed of Dissolution dated the Ist September, 1955. Inthis case, we are concerned with the Co-operative Book Depot only.

2. After the dissolution, Hrisikesh continued to cany on the said business, but no public notice of dissolution was given as contemplated by Section 45 of the Partnership Act. Hrisikesh died on the 10th February, 1957 leaving a will by which he bequeathed the said business to his son Ramendra Nath De. who became its sole proprietor and carried on the business. No intimation of the dissolution of the said partnership and the change of ownership was given to the Commercial Tax authorities, as is contemplated under Section 16 of the Bengal Finance (Sales Tax) Act 1941 (hereinafter referred to as the 'said Act'), at the relevant time.

3. The said Co-operative Book Depot' was assessed to sales tax under the said Act for the year 1956-57 (1363 B. S.) and 1957-58 (1364 B. S.). In both these cases, the assessments were completed on estimate, to the best of the judu-ment of the assessing authority who rejected the. a3mitted figures and imposed a penalty of Rs.2000/- for each assessment period, for non-furnishing of returns within the due dates. It was Ramendra who appeared in the proceedings and preferred an appeal before the Assistant Commissioner, who upheld the ex parte assessments but reduced the estimates for the gross and taxable turn-overs and the penalty was also reduced to Rs. 500/- for each year of assessment. From this order Ramendra appealed in revision before the Additional Commissioner Commercial Taxes. On or about 12th November, 1959 the Commercial Tax Officer, Sealdah charge sent to the Certificate Officer, 24-Parganas, two applications under Rule 56. of the Bengal Sales Tax Rules for recovery of arrears of sales tax and penalty in respect of the. assessments above mentioned of Co-operative Book Depot, under the Bengal Public Demands Recovery Act (hereinafter referred to as the 'P. D, R. Act'). On the strength , of these two applications two certificates being No. 143 S. T. (SL) of 1959-60 and No. 144 S.T. (SL) of 1959-60 were issued by the Certificate Officer, 24-Parganas on 25th November, 1959, Notices under Section 7 of the P. D. R. Act were issued and Ramendra Nath De describing imself as, 'the son of late Hrisikesh De, proprietor of the said Co-operative Book Depot,' filed an objection denying liability, under-Section 9 of the P. D. R. Act. Subsequently, he also filed an objection petition under Section 37 of the P. D. R. Act. In all these applications, he claimed that Hrishikesh De had become the sole proprietor of the said business but that he had died on roth February 1957 after which Ramendra became the sole proprietor. His objection was that the certificates were issued in the name of Co-operative Book Depot (Partners, Hrisikesh De and others--and he claimed that this amount ed to issuing, a certificate against a dead man and therefore, the Certificate Officer had no jurisdiction to issue the certificates, which were void. He also disputed the quantum, claiming that certain payments were not credited. The Certificate Officer sent for a report from the Commercial Tax Officer, Sealdah charge. On 3Oth February, 1960 the Commerical Tax Officer sent replies to the objection, stating inter alia that the business was originally a partnership business between Hrisikesh De and Bama Cbaran De and no intimation regarding the change of ownership or the death of Hrisikesh De had ever been received. According to him the certificates had been rightly issued and were perfectly valid. On 8th June, 1960, the Certificate Officer rejected the objection. Against this order, Ramendra filed an appeal before the Collector, 24-Parganas and the learned Additional District Magistrate who heard the appeal remanded the cases to the Certificate Officer with a direction to hold an enquiry on the point of the alleged dissolution of the partnership business, after giving due notices to both sides and requiring them to adduce evidence. This matter was heard by the Certificate Officer upon evidence and on the 7th July, 1961 he rejected the objection. Meanwhile, on the nth July, 1961 the revisional application made by Ramendra before the Additional Commissioner, Commercial Taxes, in respect of the main assessment itself, came to be heard and it was held that Ramendra was entirely liable for the dues. A. copy of the order is set out as annexure 'B' to thepetition. The learned Additional Commissioner inter alia said as follows:

'Evidently Hrisikesh De had bequeathed the business in favour of the petitioner and by virtue of the same he was the legal heir in respect of the business soon after the death of Hrisikesh De and by the probate of the Will the said fact was only confirmed and had seal and approval of the competent authority. It cannot be denied that even before obtaining the probate the petitioner had been enjoying the benefits of the asset and had been acting as the owner of the business ............ thepetitioner has been held to be the owner of thebusiness since after, the death of Hrisikesh De. Itshould be relevant to note here that in terms ofthe provision of Section II-A of the Bengal Finance(Sales Tax) Act 1941, completion of the proceedings in the trade name of the business cannot beheld to be illegal.'

4. With regard to the penalty, the Additional Commissioner proceeded on the footing that although, Ramendra had inherited the business upon the death of his father he did not file the return within that) and so the penalty was properly levied. Throughout the proceedings no question was ever raised about the liability of Rama Charon De. Against this finding Ramendra has made an application in revision before the Board of Revenue, but only on. the question of quantum. Nobody has urged that Bama Charan was liable.

5. Coming back to the certificate proceedings, we have found that the Certificate Officer had rejected the objection against which there was an appeal before the Collector, 24-Parganas. The Additional District Magistrate by his order dated 25th November, 1961 allowed the appeal and set aside the certificates holding that the registered address of the business was within the jurisdiction of the Original Side of the Calcutta High Court and therefore, the Certificate Officer, 24-Parganas, had no jurisdiction to issue a certificate. Against this order, the State of West Bengal filed a revision petition before the Commissioner, Presidency Division. The Commissioner, Presidency Division, considered the case and disposed of it by his order dated 6th February, 1962 a copy whereof is annexure 'E' to the petition. So far as jurisdiction is concerned, the learned Commissioner held that by Ordinance No. VIII of 1961 the District of 24-Parganas has been defined to include the original civil jurisdiction of the Calcutta High Court with retrospective effect. Therefore, the ground of jurisdiction was not available. As regards the other point, the learned Commissioner noticed that evidence had been given of the dissolution of the partnership and' the death of Hrisikesh De. He held that Section 45 of the Indian Partnership Act applied and as no public notice of the dissolution was given, the partners continued to be liable to third parties for any act done by any of them which would have been an act of the firm if done before the dissolution. Therefore, the liability of the partners had not ceased, He noticed that the Certificate Officer, after receiving the replies of the Commercial Tax Officer to the objection of Ramendra Nath De struck out the words 'and others' after the words 'partners, Hrisikesh De' and inserted the words 'and Bama Charan De as partner,'. Ac-cording to the learned Commissioner, Hrisikesh' De. being dead at the time when the certificate was issued, the certificate was void as against him. Therefore, only Bama Charan De was liable. Therefore, the certificates were to be considered as issued against Bama Charan De only and proceedings taken to realise the same from him. Bama Charan De objected under Section 37 of the P. D. R. Act, but this was rejected. Thereupon this application has been made.

6. It may be noted here that throughout no notice was given to Bama Charan De personally nor was he ever heard, until he objected to the certificate being executed against him. The question, therefore, arises as to whether he can be made liable in the circumstances of the case.

7. It will be remembered that the principal reason for making Bama Charan De liable, was the view taken by the Commissioner that under Section 45, of the Partnership Act. no notice of dissolution having been given, Bama Charan De continued to be liable to third parties for dealings in respect of: which he would have been liable as partner if the partnership had in fact, continued. There ate certain facts which are not disputed in this case. Firstly, it is not disputed that there was a partnership in which Bama Charan was a partner. Secondly, it is not disputed that, although in fact the partnership was dissolved, no public notice of the dissolution was given. If Section 45 applies to the facts of this case then, prima facie Bama I Charan's liability would continue. The question, however, will have to be looked at from two points of view. The first is as to whether in view of the fact that in the assessment proceeding itself it has now been held that Ramendra is liable, a finding which is binding on the parties, the authorities can, in a proceeding akin to execution, come to a different conclusion, and completely exonerate Ramen- dra from liability and foist it on Bama Charan. This would give rise to an extraordinary position. namely that the assessment order makes one person liable and in execution of the same order it is held that the liability is of another person. The second point is as to whether Section 45 of the Partnership Act should be applied in the facts and circumstances of this case. It is well 'known that taxation laws are generally complete codes in themselves. The liability to taxation, as well as the incidences thereof arise from the statutory provisons imposing the tax and regulating the same. , Where there are specific provisions regarding a certain tax, whether the provision is substantive or procedural, then the matter must be governed by such provisions, in preference to the general law. Under Section 45 of the Partnership Act, which is the general law applicable to partnership firms, a partner, who notwithstanding dissolution, has not Riven public notice of it. continues to be liable. Let us, however, see the provisions of the Bengal Finance (Sales Tax) Act. The sub- . ject is dealt with in Chapter XII which inter alia deals with 'Changes in, or transfer of, a business'. Section 16 provides that where any dealer transfers his business or the name or the nature of the business is changed the dealer shall within the prescribed time and in the prescribed manner inform the prescribed authority thereof. Failure to act in terms of Section 16 however, does not makethe change in the business abortive. The consequence of non-compliance is that the dealer commits an offence under Section 22 of the said Act and is punishable under it. There is no doubt, however, that the provisions of Section 16 are meant for the benefit of the department. The question is as to whether non-compliance with this provision affects the liability of a partner which he would otherwise have under the law. For that purpose, it is necessary to consider the provisions of Section 17 of the said Act, which is of great importance in this case and is set out below: '17. Where the ownership of the business of a registered dealer is transferred absolutely by sale, gift, bequest, inheritance or otherwise or transferred by way of lease and the transferee or tie lessee carries on such business, either in its old name or in some other name, the transferee or the lessee 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 (in the case of a lease for so long as the lease subsists) as if the registration certificate of such dealer had initially been granted to the transferee or the lessee; and the transferee or the lessee shall on application to the Commissioner be entitled to have the registration certificate amended accordingly'.

8. This is a section which specifically deals with the liability of a transferee of a business. Originally the section was in the following form:

'When the ownership of the business of a registered dealer is transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee as if he was the registered dealer; and the transferee shall within thirty days of the transfer apply for registration under Section 7.'

9. It is clear that there are specific differences between the two wordings. Previously, the transferee was liable for the unpaid tax at the time of the transfer and he was under a duty to get himself registered. Under the section as it now stands, and as it stood at the relevant time, the transferee is deemed to be and to have always been registered as if the registration certificate of the dealer had initially been granted to the transferee. In other words, whether the dealer informs the authorities of the transfer or not, or whether he has the registration certificate amended or not, there is a deeming provision that the transferee is the registered dealer at all relevant time. Therefore, we find that by a specific provision of the said Act, it is the transferee of the business, (where the transferor was a registered dealer) who has been fixed with liability. The original partnership firm consisted of Hrisikesh De and Bama Charan De. The firm transferred the business to Hrisikesh De alone, who continued to carry on the business in the same name in which the firm was registered. Therefore, under Section 17, the transferee namely. The one-man firm, if that expression can be used, was deemed to be the registered dealer and therefore, under the law, was liable for payment of taxes. Since liability is provided for in such a contingency by the said Act, I de not see how liability can be determined under any other Act or under any general provision of law. The resultof permitting any other interpretation would be that the provision of the said Act determines the liability to be that of the transferee whereas by importing the provisions of another Act we are called upon to allocate the liability to the transferor. In my opinion, this is not permissible. Liability for the payment of sales tax is to be determined only under the provisions of the said Act and where there is a specific provision dealing. with the said liability, there is no scope for the importation of the provisions of any other law. If Section 45 of the Partnership Act applies then notwithstanding notice given of the transfer of the business, under Section 16, the transferor partners would continue to be liable, until public notice is given. This is not the scheme of the said Act.

10. Let us see as to what is really happening In this case. The partnership firm was admittedly dissolved in 1955. Nobody disputes that Hrisikesh and after, him Ramendra, carried on the business and still carries on the same., Bama Charan Had nothing to do with it. It was Ramendra who contested the assessments for the relevant years, after the dissolution, and in the assessment proceedings it has been held that Ramendra alone is liable. In my opinion, it is not permissible in certificate proceedings, which are in the nature of execution, to come to a different finding. Throughout the , certificate proceedings, no notice was served on Bama Charaa and yet at some stage, all other names were crossed out from the certificate and Bama Charan's name was introduced as being the only person liable. In my opinion, both upon the facts of this case and tha law. he cannot be made liable. The, order of the Commissioner making him liable must therefore be set aside.

11. The result is that the Rule must be mada absolute and the order of the Commissioner dated the 6th February 1962 must be quashed and/or set aside by an appropriate writ. The matter wil now be decided by the Commissioner according to law.

12. There will be no order as to costs.

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