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Kshitish Chandra Sarbajna Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case Number Civil Rule No. 1899 of 1964
Judge
Reported in[1967]20STC42(Cal)
AppellantKshitish Chandra Sarbajna
RespondentThe State of West Bengal and ors.
Appellant Advocate N.C. Chakravarty and ; Sudhindra Kumar Kar, Advs.
Respondent Advocate B.C. Dutt and ; S.S. Hajra, Advs.
Cases ReferredMajor Soap Co. Ltd. v. Assistant Commissioner of Commercial Taxes
Excerpt:
- .....ordinarily filed within thirty days of the end of the quarter unless the period is extended. the dealer transfers his business before the expiry of thirty days and thereafter submits the return within the time allowed. can it be said that the return is invalid because it is submitted by the dealer after he has transferred his business the answer is obviously in the negative. the return relates to the quarter in which he was the owner of the business. the notice to furnish return was served on him. therefore, he is required to submit the return in compliance with the notice. if, instead of transferring his business, he discontinues it after the receipt of notice from the commercial tax officer but before the submission of the return, there is nothing in the act to suggest that his.....
Judgment:

A.C. Sen, J.

1. The petitioner was served with a notice under Section 7 of the Bengal Public Demands Recovery Act, 1913, together with a certificate of public demand by the Certificate Officer, 24-Parganas, demanding payment of Rs. 25,000 on account of sales' tax and penalty in respect of four quarters ended in December, 1956. Under Section 9 of the said Act the petitioner denied liability to pay the amount on the ground that he had sold away his business to one Adhir Kumar Mukherjee. He contended that the said Adhir Kumar Mukherjee and not he was liable to pay the tax under Section 17 of the Bengal Finance (Sales Tax) Act, 1941, being the transferee of his business.

2. The Certificate Officer, by his order dated 4th July, 1962, upheld the petitioner's objection and set aside the certificate with the observation that it would be open to the Commercial Tax Officer to issue distress warrant against the transferee in accordance with law for the realisation of the dues.

3. The said decision of the Certificate Officer was set aside by the Additional Collector, 24-Parganas, by his order dated 24th September, 1962, and the same in its turn was set aside by the Commissioner, Presidency Division, by his order dated 11th July, 1963, with the' result that the order of the Certificate Officer setting aside the certificate was restored.

4. Against the said order of the learned Commissioner a petition in revision was made by the State of West Bengal, the opposite party No. 1 before us, before the Board of Revenue and by his order dated 20th March, 1964, the learned Member of the Board of Revenue set aside the order of the Divisional Commissioner and restored the certificate. The present petition under Article 227 of the Constitution is directed against the said order of the learned Member of the Board of Revenue dated 20th March, 1964.

5. The petitioner used to carry on business in stationery goods and other articles under the name and style of 'K. S. and Co.' at 156/1-B, Harish Mukherjee Road, Bhowanipore, Calcutta, within the jurisdiction of the Commercial Tax Officer, Alipore Charge. In or about January, 1960, the petitioner shifted the place of business to No. 58/1, Canning Street, Calcutta, within the jurisdiction of the Commercial Tax Officer, Colootola Charge.

6. According to the petitioner, under a registered deed of sale executed on 12th April, 1960, the petitioner made an absolute transfer of the aforesaid business of 'K. S. and Co.' together with its good-will, stock-in-trade, effects, debts, liabilities and quota-right to one Adhir Kumar Mukherjee of 63/B, Cornwallis Street, and on the same day he intimated the Commercial Tax Officer, Alipore Charge, of the said transfer and requested him to transfer the certificate of registration to the appropriate charge with the above modification in the ownership of the business. The petitioner further says that the said transferee, viz., Adhir Kumar Mukherjee, also by letter of the same date, addressed to the Commercial Tax Officer, Alipore Charge, intimated the said officer, that he had purchased the business and asked for amendment of the records under Section 17 of the Bengal Finance (Sales Tax) Act, 1941, and also for the transfer thereof to the Colootola Charge.

7. The learned Member of the Board of Revenue, by restoring the certificate, has made the petitioner liable for the tax covered by the certificate. The petitioner's contention is that he is not at all liable for the tax because he has transferred the business. He says that under Section 17 of the Bengal Finance (Sales Tax) Act, 1941, when a business is transferred the transferee alone is liable even where the assessment has been made in the name of the transferor. In other words, he challenges the competence of the Commercial Tax Officer, and for the matter of that of the Certificate Officer to realise the tax in arrear, because, according to him, his liability came to an end as soon as he transferred his business to Adhir Kumar Mukherjee.

8. The petitioner primarily relies upon Section 17 of the Bengal Finance (Sales Tax) Act, 1941, in support of his contention. Section 17 does not say in so many words that the liability of the transferor for the payment of the tax already assessed in the name of the transferee shall become extinguished as soon as the business is transferred. That section says that where the ownership of the business of a registered dealer is transferred absolutely and the transferee carries on such business, the transferee shall for all purposes of the Act (except for liabilities under the Act already discharged by such dealer) be deemed to be and to have always been registered as if the registration certificate of such dealer had initially been granted to the transferee. The section further lays down that the transferee shall be entitled to have the registration certificate amended accordingly. The section primarily deals with the position of the transferee after the transfer. For all purposes of the Act the transferee shall be deemed to be the registered dealer as if the registration certificate of the transferor had initially been granted to the transferee, but in case of liabilities already discharged by the transferor the fiction, namely, as if the registration certificate of the transferor had initially been granted to the transferee shall not apply. It should be noted that the expression used is 'already' and not 'before the transfer'. This implies that even when the transferor discharges any liability even after the date of transfer the registration certificate of the transferor shall not be deemed to have been initially granted to the transferee in respect of such liability. That is to say, if any liability in respect of the transferred business is discharged by the transferor after the date of transfer, the transferee cannot be called upon to discharge that liability once again. Take the following example. A notice to submit return under Section 10(2) is issued to a registered dealer before the date of transfer. If the return is to be submitted quarterly, the return is ordinarily filed within thirty days of the end of the quarter unless the period is extended. The dealer transfers his business before the expiry of thirty days and thereafter submits the return within the time allowed. Can it be said that the return is invalid because it is submitted by the dealer after he has transferred his business The answer is obviously in the negative. The return relates to the quarter in which he was the owner of the business. The notice to furnish return was served on him. Therefore, he is required to submit the return in compliance with the notice. If, instead of transferring his business, he discontinues it after the receipt of notice from the Commercial Tax Officer but before the submission of the return, there is nothing in the Act to suggest that his liability to submit return comes to an end with the closure of his business. If that be so, there is no reason to think that his liability to submit return ceases with the transfer of his business. Under Section 16 if any dealer discontinues his business he must inform the prescribed authority within the prescribed time. Rule 72 prescribes the time to be fourteen days after the discontinuance of the business. In Section 16 the word 'dealer' obviously includes an ex-dealer. In our opinion the word 'dealer' means an 'ex-dealer' throughout the Act unless there is anything repugnant in the subject or context.

9. If the notice under Section 10(2) (sic) submitted by a dealer after discontinuance or transfer of his business is valid, and we have shown above why it should be treated as valid, the liability to submit return is thereby discharged. If so, the transferee cannot again be called upon to submit a fresh return. If, however, no return is submitted by the dealer then his transferee may be called upon to submit the return. So after the date of transfer the transferor and the transferee are both liable to submit the return for the quarter ending immediately before the date of transfer. It cannot be said that the liability of the transferor comes to an end and that the only person liable is the transferee.

10. In our opinion, the words within parenthesis in Section 17, namely, 'except for liabilities under this Act already discharged by such dealer', clearly indicate that the liabilities incurred by the transferor during his ownership of the business, continues even after transfer and that the transferee is liable in so far as they remain undischarged by the transferor. The fiction has been introduced in order to impose upon the transferee liabilities incurred at a time when he had no concern with the business transferred. Simply because the transferee has been made liable with retrospective effect from that it cannot be inferred that the liabilities of the transferor in respect of the business during his ownership become extinguished. Section 17 merely imposes an additional liability on the transferee so that any liability remaining undischarged by the transferor may be enforced against the transferee. This section has been introduced in order to protect the revenue.

11. If we refer to the deed of sale (annexure 'A' to the petition) we find that the purchaser of the business took up all the past and outstanding sales tax liabilities of the business transferred. The outstanding liabilities are for the years 1951, 1952, 1955, 1956 and 1957 when the transferor was the owner of the business, the transfer having been made on 12th April, 1960. If the liability of the transferor became extinguished by reason of the transfer, then there was no point in the transferee taking up the outstanding sales tax liabilities. If he alone is liable for the outstanding tax dues, the question of his taking up the past and outstanding tax liabilities does not arise at all. This clause really means that in case the transferee is made to discharge the past and outstanding tax liabilities he will not ask for reimbursement from the transferor. The parties undoubtedly proceeded on the footing that the transferor was primarily liable for the past and outstanding tax liabilities even though under the statute those liabilities could be enforced against the transferee by the Sales Tax Authorities. Ordinarily if A is made to discharge the liability of B, A can claim to be reimbursed by B. In the instant case, but for the provision noted above in the deed of sale the transferee could have recovered from the transferor the amount paid by him on account of past and outstanding tax liabilities.

12. In our opinion, the parties to the deed of sale proceeded on a correct appreciation of their mutual liabilities under Section 17 of the Bengal Finance (Sales Tax) Act, 1941. That section makes the transferee liable for the outstanding tax liabilities of the transferor, but does not say that on transfer the liability of the transferor ceases. The section merely imposes an additional liability on the transferee, keeping intact the liability of the transferor.

13. Section 4 imposes the liability to pay tax upon the dealer whose gross turnover exceeds a certain amount during the relevant period and it makes the dealer liable to pay tax on his turnover and it is not disputed that under this section the petitioner became liable to pay the tax sought to be recovered as an arrear of land revenue. As a result of the transfer this liability has been vicariously imposed upon the transferee who had nothing to do with the turnover sought to be taxed. As has been pointed out by Chagla, C.J., in State of Bombay v. Morarji Padamsey A.I.R. 1956 Bom. 715 :

The proper construction of any statute which imposes a liability upon a person and then proceeds to impose that liability vicariously upon a third party is that the original liability of the person does not come to an end.

14. We have indicated above that the words within parenthesis in Section 17 lends ample support to this construction.

15. We are asked to hold by the learned Advocate for the petitioner that Section 17 absolves the transferor from liability to pay the outstanding taxes as soon as he transfers his business and makes the transferee alone liable for such taxes. Chagla, C.J., on being asked to put a similar construction on Section 18 of the Bombay Sales Tax Act, 1946, which in our opinion is in pan materia with Section 17 of the Bengal Finance (Sales Tax) Act, 1941, observed as follows :

The construction suggested by the transferor imposes an unconscionable burden upon the transferee, because the result of this construction is that the transferee alone in law is liable to pay the tax which was due by the assessee and that if the transferee pays the tax he would not be entitled to recover that tax from the transferor because it is only if he discharges a liability, which in law is payable by the transferor that the transferee would be entitled to recover the tax... No canon of construction can possibly induce us to take that view of Section 18.... The taxing authority in order to make sure of the tax makes somebody else also liable to pay the tax, but it would be fantastic to suggest that the Legislature relieved the person primarily liable to pay the tax from his liability and only made the transferee liable merely by reason of the fact that he accepted a transfer of the business. It is true...that Section 18 does not in terms say that the tax shall be payable also by the transferor, but nor does the section say that the tax shall be payable only by the transferee... ...it is not possible to take the view that Section 18 absolves the transferor of the liability to pay the tax, which liability has been incurred by him by reason of Section 5 (the charging section).

16. The material portion of Section 18 of the Bombay Act is as follows :

When the ownership of the business of a dealer liable to pay the tax under this Act is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer shall be payable by the transferee as if he were the dealer liable to pay such tax....

17. In Section 18 of the Bombay Act, the words 'any tax... remaining unpaid at the time of the transfer shall be payable by the transferee' may suggest that after the time of the transfer the outstanding tax must be paid by the transferee and the transferee alone and by none else, not even by the transferor. But Chagla, C.J., interpreted the section in the manner indicated above. Section 17 of the Bengal Act speaks not only of tax liability but also of other liabilities, for example, submission of return, deposit of security, advance payment of tax etc., and it uses the word 'already' instead of the words 'at the time of the transfer'. We have already indicated the implication of the word 'already'. If the transferor is not absolved from his liability to pay the outstanding tax under the Bombay Act, as pointed out by Chagla, C.J., and we fully agree with his views in this respect, a fortiori he is not absolved from his liabilities, including his liability to pay tax under Section 17 of the Bengal Act.

18. The Mysore High Court too in Veerappa Ningappa Sanakal v. Mysore State [1962] 13 S.T.C. 796 interpreted Section 18 of the Bombay Sales Tax Act, in the same manner as Chagla, C. J. Somnath Iyer, J., who delivered the judgment in Veerappa's case [1962] 13 S.T.C. 796, observed as follows :

Section 18(1), which as I understand it, is supplementary to Section 5, directs that if a dealer transfers his business in respect of the turnover relating to the business transferred, the transferee shall pay the tax. But Section 18(1) does not supersede Section 5.... That being so, all that Section 18(1) does is to make the transferee also liable for payment of the sales tax in addition to the transferor-dealer.... The liability is an additional liability imposed upon the transferee, preserving the liability of the dealer which Section 5 brings into existence.

19. On behalf of the petitioner reliance was placed upon Nandi Charan v. Certificate Officer (1960) 64 C.W.N. 484 decided by Sinha, J., as his Lordship then was. His Lordship points out that under Section 17 the transferee remains liable as a transferee from the original registered dealer. His Lordship however does not say that the transferor will be absolved from his liability to pay the tax to which he, and not the transferee, was originally assessed. There two brothers carried on business in partnership under the name and style of Nandi Charan Paul and Brothers. On the 16th July, 1952, the two brothers executed a deed of transfer in favour of one Arabinda Mazumdar, who in his turn transferred the business to a company under the name and style of Nandi Charan Paul and -Brothers Ltd. The firm had a very large amount of sales tax in arrears. On. the 11th September, 1952, that is to say, after the date of transfer, upon the requisition of the Commercial Tax Officer, Lyons Range Charge, a certificate case was started against the firm, for the dues of sales tax to the extent of Rs. 1,10,821-8-3. The certificate and the notice under Section 7 of the Public Demands Recovery Act, both were issued on that date, and also a distress warrant. On 16th January, 1953, certain movables belonging to the firm were sold for a paltry sum of Rs. 126. No objection appears to have been taken by the firm, to the attachment and sale of its movables on the ground that it was absoived from liability by reason of the prior transfer of the business. The exact date of transfer by Arabinda Mazumdar to the company, namely Nandi Charan Paul and Brothers Ltd., is not to be found in the judgment. The Certificate Officer asked the Commercial Tax Officer on 14th July, 1953, whether the company could be treated as a transferee. The Commercial Tax Officer after giving a hearing to the company intimated the Certificate Officer on 8th February, 1956, that the company was to be treated as the transferee. The Certificate Officer without issuing any notice upon the company simply added in the certificate the words 'Transferee: M/s. Nandi Charan Paul and Bros. Ltd....'. The certificate was sought to be executed against the company straightaway as transferee. It was urged on behalf of the company that a transferee under Section 17 of the Bengal Finance (Sales Tax) Act, 1941, meant the first transferee. His Lordship observed as follows :

I am unable to agree to this contention. The transfer, as mentioned therein, relates to the transfer of the business, and therefore, irrespective of the fact as to how many times the transfer was effected, the transferee remains liable under Section 17, as a transferee from the original registered dealer.

20. The second objection of the company related to the certificate proceedings. The company's name was inserted in the certificate behind its back without giving it any opportunity of being heard. His Lordship observed:

In my opinion, simply by adding those words in the certificate behind the back of the company, the company could not be turned into a certificate debtor...

21. His Lordship quashed the certificate proceedings as against the company without quashing the original certificate issued in the name of the firm. Even though his Lordship was not called upon to quash the certificate against the firm, the original registered dealer, still if his Lordship thought that the liability of the firm was extinguished by the transfer of the business, his Lordship would have quashed the certificate against the firm itself. In refusing to do so, his Lordship proceeded on the footing that the liability of the firm continued even after the transfer. So, in a sense, this case is against the petitioner.

22. The petitioner also relied on the case of Major Soap Co. Ltd. v. Assistant Commissioner of Commercial Taxes, Calcutta [1952] 3 S.T.C. 444, decided by Bose, J., as his Lordship then was. There the petitioner-company was registered in May, 1948, and got itself registered as a dealer in July, 1948. The petitioner acquired and took over as a going concern the business of Major Soap Company, a proprietary concern, but neither the assets nor liabilities. In April, 1950, the Commercial Tax Officer required the petitioner to produce books of accounts and records for the purpose of assessment of sales tax in respect of four quarters ending 31st March, 1948, and four quarters ending 31st March, 1949. In September, 1950, the Assistant Commissioner fixed 2nd November for assessment of taxes for the aforesaid quarters. The petitioner contended that inasmuch as the assets and liabilities of the proprietary concern were not transferred to it, it was not the transferee within the meaning of Section 17 of the Bengal Finance (Sales Tax) Act, 1941. His Lordship held that the petitioner-company was transferee within the meaning of Section 17. The next point urged was that the expression 'any tax payable in respect of such business remaining unpaid' meant tax which had been assessed before the transfer. His Lordship negatived this contention and observed as follows:

The question whether the amount of the tax is ascertained or not is immaterial and irrelevant. If the liability to pay the tax is there and such liability remains unsatisfied then the transferee becomes saddled with liability to pay such tax no matter whether the ascertainment or assessment was made or not. This is the plain implication of Section 17.

23. His Lordship was not called upon to decide whether by reason of the transfer the transferor was absolved from the liability to pay tax.

24. Therefore that case has no application to the facts of the present case.

25. It may be noted in passing that when that case was decided Section 17 stood thus :

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 ; ...

26. The language of Section 18 of the Bombay Act interpreted by Chagla, C.J., in Padamsey's case A.I.R. 1956 Bom. 715 is almost identical. If we accept the interpretation of Chagla, C.J., and there is no reason why that interpretation should not be accepted, Section 17 of the Bengal Act which Bose, J., was called upon to interpret did not absolve the transferor from his liability.

27. The learned Member of the Board of Revenue restored the certificate on the ground that the Commercial Tax Officer did not accept the position that there was a transfer. The Certificate Officer called for a report from the Commercial Tax Officer on the objection filed by the petitioner under Section 9 of the Public Demands Recovery Act whereupon the Commercial Tax Officer submitted the following report:

The transfer is not considered to be bona fide and admissible. The dealer has failed to show cause why the transfer claim should not be rejected as the concern was not found in any one of the addresses and also the transferee was not found at reported addresses and the information supplied appeared incorrect. The transfer document was made after receipt of demand notice by the dealer as also notice for four subsequent periods and hence appears to have been an instrument to evade payment of tax, and therefore, seems to be non-acceptable and apparently a void document.

28. It is not clear whether the Commercial Tax Officer submitted the above report after serving notice on the petitioner to show cause why the transfer should not be ignored. In Nandi Charan's case (1960) 64 C.W.N. 484, on receiving intimation from the Certificate Officer, the Commercial Tax Officer issued a show cause notice on the petitioner-company asking it to show cause why it should not be treated as the transferee. The Commercial Tax Officer after considering the facts held that the petitioner-company was a transferee under Section 17. Sinha, J., as his Lordship then was, refused to interfere with this finding of the Commercial Tax Officer. His Lordship observed as follows :.I am unable to give the petitioner any remedy with regard to the determination of the Commercial Tax Officer that it is a transferee under Section 17 of the Sales Tax Act.

29. In the instant case, the Commercial Tax Officer thinks that Adhir Kumar Mukherjee cannot be held to be a transferee under Section 17. If it is a firm finding by the Commercial Tax Officer, then it may not be possible for us, like Sinha, J., in Nandi Charan's case (1960) 64 C.W.N. 484, to give the petitioner any remedy with regard to the determination of the Commercial Tax Officer that Adhir Kumar is not a transferee under Section 17 and that the transfer is illusory. We, however, do not know whether this determination was made by the Commercial Tax Officer after giving proper notice to the petitioner. If the determination was made by the Commercial Tax Officer behind the back of the petitioner, then the determination should be ignored. As details are lacking as to how the Commercial Tax Officer came to the conclusion that Adhir Kumar was not a transferee and that the transfer was a sham transaction, we are not prepared to base our decision on a finding of this nature.

30. We have however found on a construction of Section 17 of the Bengal Finance (Sales Tax) Act, 1941, that even assuming that Adhir Kumar is a transferee under Section 17 the petitioner has not been relieved of his liability to pay the taxes in arrears for the recovery of which the certificate in question has been filed. If that be so, the certificate against the petitioner cannot be cancelled. The learned Member of the Board of Revenue was, therefore, justified in restoring the certificate against the petitioner.

31. It is not necessary for us to pass any opinion on the argument on behalf of the revenue that the transfer having been made after the filing of the certificate which has the effect of a decree, the liability of the petitioner under the certificate cannot in any way be affected by the subsequent transfer.

32. In the result, the Rule is discharged not on the ground that the transfer was not accepted by the Commercial Tax Officer as stated by the learned Member, Board of Revenue, but on the ground that the transferor was not absolved from his liability by reason of the transfer. As the Rule is being discharged on a ground not specifically taken by the revenue before any of the authorities below, there shall be no order for costs.

A.N. Chakrabarty, J.

33. I agree.


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