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Bachhraj Baid and anr. Vs. Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case Number Civil Rule No. 2692 (W) of 1976
Judge
Reported in[1985]58STC370(Cal)
AppellantBachhraj Baid and anr.
RespondentCommercial Tax Officer and ors.
Appellant Advocate Soumen Ghosh and ; Girija Ranjan Saha, Advs.
Respondent Advocate S.N. Dutta, Adv.
DispositionPetition dismissed
Cases ReferredNandi Charan Paul & Bros. Ltd. v. Certificate Officer
Excerpt:
- m.n. roy, j.1. m/s. eastern trading company, a partnership firm registered under the indian partnership act, 1932 and which at the material time had the petitioners and one smt. kankan wari baid as partners, carried on the business of selling various articles and luxury goods, apart from dealing with hire-purchase agreement of those articles and were registered dealers both under the bengal finance (sales tax) act, 1941 (hereinafter referred to as the said bengal act) and also the central sales tax act, 1956 (hereinafter referred to as the said central act). the said smt. kankan wari baid died on or about 9th may, 1973 and it has been stated that after her death, her heirs and legal representatives did not join the petitioners in the said partnership business and the intimation of.....
Judgment:

M.N. Roy, J.

1. M/s. Eastern Trading Company, a partnership firm registered under the Indian Partnership Act, 1932 and which at the material time had the petitioners and one Smt. Kankan Wari Baid as partners, carried on the business of selling various articles and luxury goods, apart from dealing with hire-purchase agreement of those articles and were registered dealers both under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Bengal Act) and also the Central Sales Tax Act, 1956 (hereinafter referred to as the said Central Act). The said Smt. Kankan Wari Baid died on or about 9th May, 1973 and it has been stated that after her death, her heirs and legal representatives did not join the petitioners in the said partnership business and the intimation of carrying on such business by the petitioners, was given to the respondent No. 1, the Commercial Tax Officer concerned.

2. It was the case of the petitioners that thereafter four applications were moved under Article 226 of the Constitution of India challenging the legality and validity of the assessment orders for the periods of three quarters ending with 30th September, 1973, four quarters ending Chait Sudi, 2018 and four quarters ending December, 1972 and on such Civil Rules Nos. 7660 (W)-7663 (W) of 1975 Bachhraj Baid v. Commercial Tax Officer [1975] 36 STC 101 were issued and those rules, after hearing, were made absolute, whereby the assessment orders were set aside. It has been stated further that thereafter, against those orders making the rules absolute, four appeals being F.M.A.T. Nos. 1480-1483 of 1975 were filed and in those appeals, applications for stay of operation of the orders were also made, which came up for consideration on 19th June, 1975 and the learned Appeal Court was pleased to extend the stay order as issued, for a limited period and also to direct the petitioners to give the names of the heirs and legal representatives of the deceased Kankan Wari Baid to Mr. Moni Bhusan Sarkar, who at that time was appearing for the appellants, so that the assessment in question, could be made and completed in accordance with law. With such observations, the applications and the appeals were disposed of and it has been stated further that the other findings as made, by the learned Trial Judge, were affirmed.

3. It has then be alleged that the respondents, not being satisfied with the orders as mentioned above, and in order to compel the petitioners to close down their business, issued a memo dated 16th June, 1975 directing them to appear before the Assistant Commissioner of Commercial Taxes, respondent No. 2, and to show cause why security for Rs. 10,00,000.00 should not be demanded from the petitioners under Section 7(4a)(i) of the said Bengal Act and it has also been stated that the petitioners on 7th of July, 1975 again moved an application under Article 226 of the Constitution of India, challenging the legality and validity of such notice, whereupon a rule and order of injunction till the disposal of the same were issued. The petitioners have further alleged that they were surprised then to receive a notice in form IX in Review Case No. 5/75-76 proposing to pass an order of substituting the names of the heirs and legal representatives of the said deceased partner Smt. Kankan Wari Baid in her place as stated in accordance with the order as made by this Court, the particulars whereof, have been mentioned hereinbefore. It was their case that this Court neither in the concerned Civil Rules nor in the Appeals, gave any direction to substitute the names of the heirs and legal representatives of the said Kankan Wari Baid in her place and they further bona fide believed that the Commercial Tax Officer, respondent No. 1, borne grudge against them, as they moved this Court against the illegal assessment order, which was set aside and so also against the notice demanding security as mentioned above.

4. It was the case of the petitioners that they, through the letter dated 28th August, 1975 from their learned Advocate, demanded justice and claimed further that the respondent No. 1 as mentioned above, had no competence, authority and jurisdiction to make the proposed amendment by way of Review and as such, requested him to rescind, recall, cancel and withdraw the concerned notice. It has further been stated by the petitioners that the original registration certificate had not been amended after the death of the erstwhile partner and which was initially on 28th August, 1975 being concerned application for a rule was moved and a civil order was directed to be issued. After hearing the learned Advocate thereafter, on 26th February, 1976 the present rule was issued against the notice dated 26th July, 1975 as issued by the respondent No. 1 as mentioned above, claiming such notice to be bad, illegal, improper, invalid, void, ultra vires and without jurisdiction.

5. Shri Kalimohan Chakraborty, the Commercial Tax Officer concerned, has filed the affidavit-in-opposition dated 23rd September, 1975 for respondents Nos. 1, 2, 3 and 4 in this Rule. It was his case that Shri Bachhraj Baid, Shri Bhenwalal Baid and Smt. Kankan Wari Baid were carrying on business as partners under the firm name of M/s. Eastern Trading Co., and were registered dealers under the Acts as mentioned above. He has admitted that the said Smt. Baid died on 9th May, 1973. He has stated that although under the provisions of law, the dealers are required to intimate inter alia any change of ownership within 14 days to the Commercial Tax Officer concerned and the legal representatives of the deceased dealers are required to inform within 30 days from the date of death of the dealer, no intimation or information about the death as mentioned above, was communicated to him by anybody till 30th May, 1975 or before that. He has also stated that when in reply to the letter dated 26th May, 1975 written by him, he asked for information about any change in the concerned business, the petitioners through their letter of 30th May, 1975 informed their inability to comply with such requirements under the law and in such connection, in or about March, 1975 the deponent for the first time came to know on receipt of the service copy of the petitions in Civil Rules Nos. 7660 (W)-7663(W) of 1975 that Smt. Kankan Wari Baid had died. The deponent has stated that by a letter of 26th May, 1975 he asked for information from the petitioners, regarding any change that might have occurred in or in connection with the business and asked them to produce the certificates for registration and so also the other relevant and necessary documents and in reply, on 30th May, 1975 the petitioners addressed a letter making some untrue statements and allegations. It was the case of the deponent that the petitioners never intimated about the death of Kankan Wari Baid earlier, although their letter of 30th May, 1975 contained various untrue allegations. The deponent has further stated that the petitioners did not appear before him, in terms of his request and avoided production of necessary papers, by making untenable and unbelievable statements. It was also his case that the certificate of registration was never produced for necessary rectification or correction. The deponent has also stated that as the petitioners had not complied with the requirements, so another reminder was given to them on 19th July, 1975 and it was also his case that he came to know about the heirs and legal representatives of the said deceased by the end of June, 1975 when in compliance with the order passed by the Appeal Court, in the matters as mentioned above, the Advocate on behalf of the petitioners furnished the names of the heirs and legal representatives of the deceased. The deponent has stated that on 25th August, 1975 only the petitioners submitted the registration certificate with a copy of a partnership deed executed on 5th June, 1975 between them and from such copy it appeared that another partnership deed was executed on 1st November, 1973 but (neither) copy of such deed nor any intimation about the same, was given to him. The deponent has stated further that there is nothing on record showing that the legal representatives of the deceased Kankan Wari Baid did not join with the petitioners in continuing the business of the partnership.

6. The deponent has further stated that the assessment as mentioned, having been made inter alia in the name of a dead partner (Smt. Kankan Wari Baid), as no information about her death was received, therefore the assessments were untenable. It was his case that at the time of hearing of the application in connection with the interim relief in the concerned appeals, the Appeal Court duly appreciated the difficulty, that without the names of the heirs and legal representatives of the deceased, they could not be substituted and as such, the order in the manner and way in which it has been indicated hereinbefore, was passed. It has further been stated that the petitioners, not having even furnished returns for considerable periods, the Assistant Commissioner of Commercial Taxes, respondent No. 2, was satisfied that in the facts and circumstances of the case, there were good and sufficient reasons for demanding security for Rs. 10,00,000, for the proper payment of tax, payable by the dealers under the said Bengal Act and as such, notices were issued after recording the reasons and giving the dealers, opportunities to show cause why the said amount of security should not be furnished. The deponent has further given particulars of the outstanding liabilities from the dealers in paragraph 8 of the affidavit-in-opposition and such outstanding liabilities would certainly be substantial, if they are correct. The deponent has further stated that it was not the intention of the notice in form IX in f the concerned review case, to state that under the directions of this Court the substitution was being made and all that was intended to state, was that for the purpose of substitution of the heirs and legal representatives of the said Smt. Baid, the Appeal Court was pleased to direct the petitioners to furnish the name of the heirs and legal representatives of the deceased and in compliance therewith the names of her heirs and legal representatives which were furnished, were going to be substituted in place of the deceased. The acts and actions as taken in the instant case, have been claimed to be due, bonafide and legal, apart from being in accordance with the directions of this Court. It has also been stated that even if the review application is allowed there would not be any complication at all. It was the further case of the deponent that the petitioners were fully responsible for the delay in substitution of the heirs and legal representatives of the deceased partner and for the delay in amendment of the certificate of registration. The notice dated 30th July, 1975 as impeached, has been claimed to be lawful, valid and proper. Apart from the above, the deponent has stated that under either of the Acts as mentioned above, the petitioners have other ample and adequate remedies and such being the position, no interference should be made at this stage. That apart, it has been claimed that balance of convenience in the instant case is absolutely in favour of the answering respondents.

7. In their reply dated 29th September, 1975 the petitioners, after denying the material allegations and repeating the statements as made earlier in the petition, have reiterated that the notice in the instant case, was not bona fide and that was malicious too. That apart, the petitioners have claimed the notice to be unauthorised, without jurisdiction and void. It has also been contended that the notice has not been issued in terms of the directions of the Appeal Court and the steps in the matter of substituting the names of the heirs and legal representatives of the deceased as mentioned above, were being contemplated now and that too after a long lapse of time, without any bona fide and without duly considering the facts of the case.

8. Section 20(4) of the said Bengal Act lays down that subject to such rules as may be prescribed, any assessment made or order passed under that Act or the Rules made thereunder by any person appointed under Section 3 or Section 3A may be reviewed by the person passing it upon application or of his own motion and subject as aforesaid, the Tribunal may, in like manner and for reasons to be recorded, review any order passed by it, either on its own motion or on application. It has been stated by Mr. Ghosh that since the heirs of Kankan Wari Baid did not join the erstwhile partnership, there was a separate partnership and in the subsequent rules after Civil Rules Nos. 7660 (W)-7663 (W) of 1975 assessments were not challenged. Mr. Ghosh further made reference to the provisions of the said Bengal Act, relating to 'dealer' meaning thereby, any person who carries on business of selling goods in West Bengal and includes the Government. The explanations under the definition of 'dealer' have not been mentioned here and Mr. Ghosh further claimed, that on the basis of the definition of 'dealer' as mentioned above, a partnership would be included. He then referred to Section 4 of the said Bengal Act which lays down the incidence of taxation and then to Section 7 of the same, which deals with registration of dealers and there is no doubt that a registered dealer must have a registration certificate. Such registration certificate, under Sub-section (4) of Section 7, the Commissioner may from time to time amend in accordance with information furnished under Section 16 or otherwise received. Section 16 contemplates of information to be furnished regarding change of business. Thereafter, Mr. Ghosh referred to Sub-section (2) of Section 10, which provides that such dealers as may be required so to do by the Commissioner by notice served in prescribed manner and every registered or certified dealer shall furnish such returns by such dates and to such authority as may be prescribed. He also referred to Section 11 of the said Bengal Act which deals with assessment of tax and then to Section 17, which deals with transfer of business, after making a reference to Section 16 as mentioned above.

9. On the pleadings as indicated hereinbefore, Mr. Ghosh firstly, contended and claimed that the substitution as sought to be made in the instant case, by way of the review proceedings or in the manner as indicated hereinbefore, was improper and unauthorised, as there was no direction by the High Court, to substitute the names of the legal representatives of the deceased partner Smt. Kankan Wari Baid, in respect of the assessment in question. It was secondly, contended by him that under the provisions of the. said Bengal Act, there has been no provision for making any assessment of the legal representatives of a deceased partner and as such, the entire proceedings was void ab initio, baseless and unauthorised. He claimed thirdly, that the heirs and legal representatives of the deceased partner Smt. Kankan Wari Baid were never the dealers under the said Bengal Act and since they never became the partners of Eastern Trading Company, the proceeding as initiated, was also null and void. It was fourthly and alternatively, claimed that as the heirs and legal representatives of the deceased Smt. Kankan Wari Baid became partners/dealers within the meaning of the said Bengal Act, no assessment could be made upon them without amending the registration certificate and lastly and fifthly, Mr. Ghosh claimed, that the deceased partner's assessment in question, was a nullity and the same could not be rectified by adopting the procedure as in the instant case. It should be noted here that Smt. Kankan Wari Baid admittedly died on 9th May, 1973 and as such, admittedly some assessment was made after her death and accordingly Mr. Ghosh claimed that any assessment made after the death of the lady, was a nullity and it was the definite claim and contentions of Mr. Ghosh that, amendment, if any, must be in case of or in course of the assessment. He, on a further reference to the orders as made by the Appeal Court wanted to establish that since there was no provisions to deal with the heirs and legal representatives of the deceased partner, Smt. Kankan Wari Baid, the steps as taken, were without jurisdiction and unauthorised.

10. In support of his submissions that the legal representatives cannot be assessed, Mr. Ghosh firstly referred to the determinations in the case of Chief Commissioner, Sales Tax, New Delhi v. Raj Kishan Goyal AIR 1982 SC 110 , wherein it has been observed that

the provisions of Sections 2(c), 4, 7,11, 11-A, 16 and 17 of the Act and Rules 10, 12(b), 39(1) and (1A) of the Rules framed under the Act do not constitute a clear, express or any implied provision containing a power to assess a dissolved firm for its predissolution turnover. The result is that there was no provision to assess or reassess a dissolved firm until the lacuna was filled up by inserting Section 12-F prospectively. Apart from holding that the general rule that a dead person cannot be assessed, would apply in the case of assessment of a dissolved firm unless the statute contemplates the assessment of a firm after its dissolution. In construing fiscal statutes, one must have regard to the strict letter of the law. Under the partnership law the firm as such is not a juristic entity. For tax law, income-tax as well as sales tax, however, it is a legal entity. On dissolution the firm ceases to be a legal entity and unless there is a statutory provision permitting the assessment of a dissolved firm, assessment proceedings cannot be maintained against a firm, which ceases to have legal existence.

11. In that case it has also been observed that

the continuance of the liability to pay the tax is distinct and is not to be mixed up with the implicit power to tax. The stages of the imposition of the taxation are as follows : The first is the charge or the levy. Then there is the framing of an assessment or quantification of the liability. The liability is already fixed by the statute. It does not, however, depend on the assessment. On assessment it particularises the person by whom tax is payable and to what extent. If the person ceases to exist, he cannot be proceeded against for assessment though the liability subsists. If in law it is the death of the person or extinction of the legal entity, then the proceedings for assessment are not maintainable. If the intention of the legislature is to proceed to assess and to collect the tax due, then it has to be separately provided. The mere continuance of the liability to pay the tax by a legal entity does not by itself spell out a power of assessment after it ceases to exist. There is no implication in the provisions of Section 11 or 11-A that it provides for any power or procedure for assessing a dissolved firm for its predissolution turnover. There was a lacuna in the Act and it was filled by the insertion of Section 12-F.

12. In that case it has also been observed that

under the genera] law a firm is not a distinct legal entity but is only a compendious name for all its partners. A firm which carries on the business of selling goods would be a dealer within the meaning of the Act as the word 'person', would include a firm being a body of individuals by force of Section 3(42) of the General Clauses Act, 1897. There is nothing repugnant in the subject or context to exclude the application of this definition contained in the General Clauses Act, 1897. The provisions of Sections 4, 5, 7, 11 and 11-A of the Act and Rules 39(1) and 39(1A) are not repugnant to the firm being included in the definition of a 'dealer' as contained in Section 2(c).

13. On the question whether the firm, was a dealer, reference was made by Mr. Ghosh, to the determinations as made by this Court in the earlier Rules as obtained by the petitioners, whose particulars have been mentioned hereinbefore and which judgment has been reported in Bachhraj Baid v. Commercial Tax Officer [1975] 36 STC 101 and where the learned Judge has observed that

under the Bengal Finance (Sales Tax) Act, 1941 a firm is not a dealer and only the individual partners of the firm are registered dealers. Where a partnership consisted of three persons, but the registration certificate was issued in the joint names of all the persons, even one amongst them can challenge the legality or validity of an order of assessment against the firm, by filing a petition under Article 226 of the Constitution. The death of another partner will not invalidate such proceedings, apart from holding that the Commercial Tax Officer in making an ex parte best judgment assessment must make a fair estimate of the proper figure of assessment and for this purpose he should take into consideration the previous returns of the assessee and all other relevant materials which he thinks would assist him in arriving at a fair and proper estimate. Though there must necessarily be some guess-work in the matter, it must be honest guess-work. Where the Commercial Tax Officer did not state any reason whatsoever in support of his estimate of gross turnover, his order would fail to conform to the minimum requirement of a best judgment assessment and should be quashed.

14. As mentioned earlier, Mr. Ghosh stated that such findings of the learned Judge were not set aside in the concerned appeals, the relevant particulars whereof have also been indicated earlier. He also, on a reference to such determination, wanted to establish the stand taken by the respondents at that time and the objections taken by. them. While on the point and the effect of the death of the said Smt. Kankan Wari Baid or transfer of the business activities, if any, reference was made by Mr. Ghosh to the case of Shethia Mining and . v. Commercial Tax Officer [1977] 39 STC 246, where it has been observed that

Section 17 of the Bengal Act covers a case of transfer by operation of law as well as by act of parties. The expression 'transferred absolutely' in Section 17, as amended by Act No. 19 of 1954, is of wide import and is broad enough to include an absolute transfer on intestate succession. The section applies to all cases, where the business is 'transferred absolutely' and is not limited to transfers by act of one owner only. But the section comes into operation if 'the ownership of the business' is transferred and if the transferee carries on such business and the said Section 17 makes the transferee of a business liable for the outstanding liability of the transferor, but does not say that on transfer the liability of the transferor has ceased. The section merely imposed an additional liability on the transferee keeping intact the liability of the transferor. Therefore, when the ownership of the business is transferred, the transferor by reason of the transfer is not absolved from outstanding tax liabilities of the transferred business. Section 17 speaks not only of the tax liabilities but also other liabilities, for example, submission of the return, deposit of security, payment of tax.

15. On the basis of the above determinations, Mr. Ghosh claimed the assessment as made on the death of the Smt. Baid to be a nullity. Then, reference was also made by Mr. Ghosh to the observations of the Gujarat High Court in the case of Champaklal Sohanlal v. J.H. Shah, Sales Tax Officer [1968] 22 STC 507 which, while dealing with the term 'dealer', has observed

that there is no provision in the Bombay Sales Tax Act, 1953 making liable the heir or the legal representative of a deceased dealer for the payment of the tax in respect of the business carried on by the deceased dealer. The word 'transfer' in Section 26(1) should be interpreted only as a voluntary transfer inter vivos by the act of parties. Therefore on the death of a dealer his heir or legal representative, who has continued the business of the deceased dealer, cannot be assessed to sales tax under the provisions of the Bombay Sales Tax Act, 1953 in respect of the turnover of the business carried on by the deceased dealer and under the charging Section 5, the liability to pay tax is of the dealer, who must be a living person, and there is nothing in the charging section or in the definition of the word 'dealer', which would include within the ambit of the charging section an heir or a legal representative. It has further been observed in that case that while dealing with the charging section there is no question of intendment or equity. Unless charge is created by a specific provision of the statute the taxpayer cannot be taxed on an ambiguous provision.

16. It was Mr. Ghosh's contention that the firm was not a dealer and to establish that, he referred to the case of Sri Pulak Chandra Paul v. Commercial Tax Officer [1978] 42 STC 209 where it has been held that

in view of the fact that by Section 2(b) of the Bengal Finance (Sales Tax) (West Bengal Amendment) Act, 1950 'firm' has been excluded from the definition of the word 'dealer' in Section 2(c) of the Bengal Act, a firm cannot be treated as a separate unit for purposes of assessment of sales tax under the Act. Under the definition of the word 'person' in Section 3(32) of the Bengal General Clauses Act, 1899 a firm is not included as a separate entity independent of the partners. The partners of a firm, who constitute the firm, being a body of individuals, would be a person under the definition in the General Clauses Act. A dealer being a person under the Act, it would include the partners of a firm as a body of individuals and have a person. An application for registration under Section 7 or Section 8 of the Act in form IA as prescribed by Rule 4(i) of the Bengal Sales Tax Rules, 1941 cannot be made by a firm in the firm name, but can be made only in the names of the partners of a firm. As a firm cannot be registered under the Act the question of dissolution of the firm is quite immaterial.

17. For the purpose of establishing the scope of Section 17 of the said Bengal Act, reference was made by Mr. Ghose to the case of Jagdish Kaur v. Sales Tax Officer [1974] 33 STC 522 wherein it has been observed that Section 17 of the Bengal Finance (Sales Tax) Act, 1941 as extended to Delhi is not limited in its operation to transfers inter vivos only. There is nothing in that section which leads to any inconsistency if it is applied to transfers however they have been effected. Therefore, Section 17 applies to the widow of a deceased dealer succeeding to his business by virtue of a will and thereafter continues to carry on his business, but she will be liable to pay the arrears of sales tax and to be assessed to sales tax for a prior period, only if her deceased husband has not already paid the tax, apart from holding, that if a transferee has wound up the business or ceased to carry on the business, the transferee would not at all be liable under Section 17.

18. On a reference to Section 42 of the Indian Partnership Act and the terms thereof, Mr. Ghosh, in the facts and the circumstances of the case, claimed that on the death of Smt. Kankan Wari Baid, the partnership stood dissolved and as there was no agreement between the partners to continue so the dissolution of the partnership was complete on and from 9th May, 1973. It was further contended by him that as thereafter, there was a separate agreement so as mentioned hereinbefore, the heirs and legal representatives of the said deceased were not partners or could not be said to be the dealers and as such, there was an automatic cessation of the partition or dissolution of the same after her death. Those submissions were sought to be sustained by Mr. Ghosh on a reference to the observations in the case of Commissioner of Income-tax, Madhya Pradesh, Nagpur v. Seth Govindram Sugar Mills : [1965]57ITR510(SC) where it has been observed that Section 42(c) of the Partnership Act can appropriately be applied to a partnership where there are more than two partners. If one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partners will continue the firm. On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and there is then no partnership for a third party to be introduced therein and there is no scope for applying Clause (c) of Section 42 to such a situation. Pursuant to the wishes or the directions of the deceased partner the surviving partner may enter -into a new partnership with the heir of the deceased partner, but it would be a new partnership. In this light Section 31 falls in line with Section 42. An agreement between the two partners that on death of any of them his legal heir or nominee would take the place of the deceased partner, will not, therefore, have the effect of automatically making such heir or the nominee a partner of the firm.

19. Mr. Ghosh also made a reference to the case of Bibas Chandra Gon v. State of West Bengal : AIR1963Cal578 wherein Chatterjee, J., agreeing with the observations and findings of Bachawat, J., has also laid down that

the purpose of the Bengal Finance (Sales Tax) Act of 1941 was 'to impose a general tax on the sale of goods in Bengal' as 'it was necessary to make an addition to the revenues of Bengal'. Section 1 gives the short title; Section 2 deals with the definitions; Sections 3, 3-A relate to taxing authorities. Section 4 relates to incidence of taxation. Sections 5 and 6 relate to 'rate of tax' and 'tax-free goods'. We are concerned with Section 7 which says :

No dealer shall while being liable to pay tax, carry on business as a dealer unless he has been registered and possesses a registration certificate.

20. Section 7(4) is as follows :

The Commissioner may from time to time amend any certificate of registration in accordance with information furnished under Section 16 or otherwise received.

21. Section 10, Sub-section, (2) which is relevant is :.every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed.

22. Section 11 says :

If no returns are furnished by a registered dealer...or if the Commissioner is not satisfied...the Commissioner shall...proceed in such manner as may be prescribed.

23. Sections 10 and 11 deal with the payments of tax, returns and assessment of tax. Section 13 relates to accounts and Section 14 to production and inspection. Section 15 deals with delegation of Commissioner's powers. The next two sections are important for us. Section 16 says :

If any dealer to whom the provisions of Sub-section (2) of Section 10 apply,-(a) sells or otherwise disposes of his business...he shall within the prescribed time inform the prescribed authority accordingly; and if any such dealer dies, his legal representative shall in like manner inform the said authority.

24. The position, therefore, under Section 16 read with Section 10(2) is that every registered dealer, who is required to furnish returns, shall within the prescribed time inform the authorities if the dealer 'sells or otherwise disposes of his business'. In the event of death the legal representatives are to inform, apart from holding that a dealer registered under Section 7(1), liable to furnish returns under Section 10(2) and liable to be assessed under Section 11 'sells or otherwise disposes of his business', he shall in terms of Section 16 inform the prescribed authority about such transfer and in case of death of the registered dealer, the legal representatives would so inform of such death. After that, the registration certificate would be amended and the names of the transferee of the dealers would be included under Section 7(4) and because of such amendment, those transferees or the legal representatives would be liable to furnish returns under Section 10(2) and would also be liable to be assessed and penalised under Section 11 and by Section 17 the liability of 'the transferee and the lessee' will be the same as if the registration certificate had been initially granted to 'the transferee or the lessee'. But what would be the liability of the legal representatives Does 'transfer' in Section 17 include transfer by operation of law ?

25. Mr. Ghosh thereafter, contended that for deficiencies in compliance with Rules 80 and 81 of the Bengal Sales Tax Rules, 1941 the proceedings as sought to be initiated was nullity and the defects being of such nature could not be cured or rectified by any subsequent act or action. He also claimed that the power of review was thus in the present case, taken resort to or exercised unauthorisedly and without any basis. On a reference to the observations in the case of Concrete Spun Pipe Works v. Sales Tax Officer [1969] 24 STC 48, Mr. Ghosh claimed that since it was not a case of mistake, which, if necessary, could be rectified, the proceedings as sought to be initiated, were inappropriate and unauthorised. In the above case, it has been observed that the jurisdiction of the assessing authority under Section 22 of the U. P. Sales Tax Act, 1948 is confined to the rectification of a mistake apparent on the face of the record of the assessment. That section does not envisage rectification of an error of judgment. The mistake must be a mistake which will appear upon a glance at the record and not a mistake which emerges after prolonged debate on the merits of the question and the assessee carrying on the business of manufacturing and selling reinforced cement concrete spun pipes was assessed to sales tax at 2 per cent of the turnover. Subsequently the Sales Tax Officer took the view that the pipes sold by the assessee were liable to be assessed at 7 per cent as they fell under the description of 'sanitary fittings' and accordingly issued a notice to the assessee under Section 22 for the purpose of rectifying the assessment: Held, that the Sales Tax Officer had no jurisdiction to take proceedings under Section 22.

26. It should be noted here that the case of the answering respondents was that, it was the obligation of the dealers to intimate about the death of the deceased partner, but they not having done so, there was not only some basis for the initiation, but the initiation as made, was operative. Regarding the intimation and the conduct thereof, of the partners, there has been a dispute and as such, Mr. Ghosh claimed that since there has been a dispute or the happenings have not been admitted, review would not be possible or permissible. Rule 81 of the Rules postulates (1) when the Commissioner or any other officer reviews any order under Section 20(4) of the said Bengal Act, he shall record his reasons in writing and (2) when any Commercial Tax Officer reviews any order he shall send a copy of the order and of the statement of reasons to the Assistant Commissioner. The order of review in this case was on his own motion by the Commercial Tax Officer, respondent No. 1, and that being the position, the case would come under Sub-rule (2) of Rule 81. Mr. Ghosh contended, which was of course denied, that due reasons were not recorded.

27. Mr. Dutta, appearing for the answering respondents, contended that the three partners of the firm carried on the business upto 1971 and thereafter the lady died. He claimed that as the business was continued and carried on, so the liability to pay tax arose as soon as sales took place and thus, the three partners became liable for the concerned accounting periods and assessments years. On the basis of the terms of the statute, Mr. Dutta also claimed that the firm was formerly included as a dealer, which was of course excluded thereafter. In this case, Mr. Dutta stated that the firm, Eastern Trading Co., was not the registered dealer and the registration certificate dated 22nd April, 1967 showed that the registration was in the name of the three partners and the name of Smt. Kankan Wari Baid was of course deleted on 1st April, 1976. On such facts, Mr. Dutta contended that the individuals were the dealers and as such, he claimed the question of the firm being the dealer would not be relevant.

28. Mr. Dutta's specific contention was that, even if the heirs and legal representatives of Smt. Kankan Wari Baid had not joined the firm on her death, they were really and for all material and relevant purposes transferees. In support of the above, reference was made by Mr. Dutta, to a letter dated 22nd August, 1976 from Punam Chand Baid to the Commercial Tax Officer, wherein it has been specifically stated amongst others that after the death of his wife, the said Smt. Kankan Wari Baid, the remaining partners Sarbashree Bachhraj Baid and Bhanwar Lal Baid were carrying on the concerned partnership business under the name of Eastern Trading Co. at the same place with effect from 10th May, 1973 on the basis of a deed of partnership executed on 1st November, 1973 as a transferee of that firm. As such, the petitioners were claimed by Mr. Dutta to be absolute transferees having had their identity completely merged under Section 17 of the said Bengal Act. The above submissions were also sought to be supplemented by Mr. Dutta by saying that the position in law would be such as indicated hereinbefore as there was complete change of identity and furthermore as the requirements under Section 17 as mentioned above, were satisfied. Some of the observations in the case of Bibas Chandra Gon v. State of West Bengal AIR 1963 Cal 678 or the background of the same have been indicated hereinbefore. Mr. Dutta also referred to that determinations of Bachawat, J., and stated that the relevant tests or criterion for determining the issue has been laid down in paragraph 10 of the judgment, which also indicates the necessary requirements under Section 17 as indicated above and according to Mr. Dutta, such and relevant tests in this case have not been satisfied.

29. In the concerned appeals, this Court had set aside the assessments on 5th June, 1979, the review orders, which were passed on 31st March, 1976 were communicated on 22nd April, 1976 and the present rules were obtained on 26th February, 1976. The question arose, whether such orders of review were passed on recording the reasons. It was submitted by Mr. Dutta that the necessary reasons were duly recorded and in any event, as the petitioners had due understanding of the substance of the notice, any or mere or some defects in the same, will not affect the effective nature and character of the same. It was specifically claimed by Mr. Dutta that the petitioners had knowledge of all that had happened and more particularly they knew about the disposal of the review proceedings. Mr. Dutta also claimed that in the facts of the case, the proceedings as initiated, would not thus be bad for want of notice and all the more so when representatives of the heirs and legal representatives of the deceased along with the petitioners have been mentioned. Mr. Dutta sought to supplement his submissions with reference to the determinations in the case of Chatturam v. Commissioner of Income-tax, Bihar [1947] 15 ITR 302, which was a case under the provisions of the Indian Income-tax Act, 1922 and has laid down that the income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is not, however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessees to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income-tax Act which are the charging sections. Section 22 and others are the machinery sections to determine the amount of tax.

30. Then reference was also made by Mr. Dutta to the determinations in Balchand v. Income-tax Officer, Sagar : [1969]72ITR197(SC) , again a case under the provisions of the Income-tax Act, 1961 and where on construing the effect of the knowledge of the assessee on the facts of that case it has been held while dismissing the appeal, that

the negligence in drawing up of the preamble to the notice dated June 24, 1959 did not affect the validity of the notice, for the appellant was clearly informed thereby that he had to file a return of income assessable for the year ending March 31, 1946. A demand for a return of income assessable for the year ending March 31, 1946 could obviously be for the assessment year 1945-46 and not for 1946-47.

31. Apart from the above, Mr. Dutta contended that the notices in this case would not be bad as they were issued on the understanding of the Appeal Court's order by the officer concerned and more particularly when he felt that such authority was given to him. On a production of the copy of the deed dated 5th June, 1975 Mr. Dutta categorically claimed that the same established and showed absolute transfer. This deed was claimed to be the subsequent and second deed by Mr. Dutta and according to him the first one was dated 5th April, 1960. The copy of the first deed was produced by Mr. Ghosh. Mr. Dutta also claimed that the consideration of the effect of the review at this stage, being only academic, this Court should not make any interference and that apart, he claimed that concurrent findings of fact as made or arrived at, must not also be interfered with in this jurisdiction. Mr. Dutta also submitted that jurisdiction or power to interfere under Article 226 being discretionary, no interference should also be made.

32. Mr. Ghosh, on a further reference to the order and the purpose of the notice -'claimed, that the question of transfer in the instant case was wholly immaterial and according to him, the real test to be found out and the question to be answered was whether the firm could be a dealer either under Section 2 or under Section 17 of the said Bengal Act. Mr. Ghosh also contended that Smt. Baid died intestate and the transfer was absolute. On a reference to the determinations in the case of Kunjilal v. Assistant Sales Tax Officer [1970] 26 STC 542 Mr. Ghosh submitted that a defective notice would make the initiation null and void and as such, there would be ipso facto lack of jurisdiction. That being the position, according to Mr. Ghosh, there was initial lack of jurisdiction in this case and as such this Court, according to him, could interfere. In Kunjilal's case [1970] 26 STC 542, which was under the Madhya Pradesh General Sales Tax Act, 1958 it has been observed amongst others that as requirement of a notice for initiating reassessment proceedings is not , mentioned in Section 19 of the Madhya Pradesh General Sales Tax Act, 1958 as such and is only prescribed under the Rules as a step for affording the dealer a reasonable opportunity of being heard (which is the requirement of the section), a defect in the notice cannot invalidate the proceedings unless it is shown that before the order of reassessment was made, the dealer was not afforded reasonable opportunity of being heard and he was prejudiced because of the defect in the notice and a notice pointing out that it is reassess the dealer on the ground that sales had escaped assessment is sufficient specification of the escapement and it is not necessary to mention the exact amount of the turnover which may have escaped assessment and which can be determined only after hearing the dealer and that the irregularities pointed out by the assessee in the notices were not such which vitiated the taking of reassessment proceedings.

33. While replying further on the submissions of Mr. Dutta, on the non-maintainability of this writ proceedings, Mr. Ghosh stated that when the authorities concerned in this case have acted in the absence of basic jurisdictional facts, their decision can be subjected to the challenge as in this case and in support of such submissions he referred to the determinations in the case of L.V. Veeri Chettiar v. Sales Tax Officer, Bombay AIR 1971 Mad 156 where, it has been observed that when a taxing authority acts despite the absence of basic jurisdictional facts the assessee need not exhaust the available statutory remedies before seeking a writ and the High Court can stop the assessment proceeding at its inception.

34. On a reference to the other determination on the Indian Income-tax Act, 1961 in the case of Calcutta Discount Co. Ltd. v. Income-tax Officer : [1961]41ITR191(SC) , on the principles as laid down, therein and that too on the effect of the order as impeached, it was claimed by Mr. Ghosh that alternative remedy in this case would be no bar in entertaining this application. Mr. Ghosh further claimed that when in this case, the High Court entertained the writ petition by issuing a rule, the same cannot be discharged for the availability of alternative remedy and non-availing of the same. He wanted to establish such submissions on a reference to the determinations in the case of Hirday Narain v. Income-tax Officer, Bareilly : [1970]78ITR26(SC) , where it has been observed that when the High Court in spite of the fact that the petitioner has not availed of the alternative remedy, entertained the petition and gave hearing on merits, such petition cannot be rejected on the ground, that statutory remedy was not availed of. While on the point of any other remedy in the statute, reference was made to the observations in the case of Smt. Gulab Kanwar v. The Director, Enforcement : AIR1977Cal383 and that too in support of the contentions that the other available remedy in this case would be no bar in maintaining this proceedings. In support of his submissions as mentioned above, reference was also made to the case of Bapalal Khushaldas v. R. Prasad AIR 1965 Guj 135, where it has been observed that

it is well-settled that where a petitioner challenges the jurisdiction of the adjudicating authority or the validity of the enquiry itself or the impugned order on the ground that there is an ex facie error thereunder, he need not wait until he has exhausted the alternative remedy and therefore can file a petition to set aside the impugned order without having recourse to such alternative remedy.

35. Whether a firm is a separate entity for purposes of assessment, further reference was made to the case of Sri Pulak Chandra Paul v. Commercial Tax Officer [1978] 42 STC 209 and the findings thereof as mentioned hereinbefore were restated. Mr. Ghosh also contended that without the necessary amendment of the petition incorporating the necessary statements regarding Review Cases Nos. 2 and 3 and Appeal No. 648 of 1976-77, this proceedings can continue. It was also contended by Mr. Ghosh that when reasons were required to be recorded in writing and that was not done admittedly, so on the basis of the determinations in the case of Surja Mohan Chakraborty v. State of West Bengal 81 CWN 820, where, while construing Section 7(4a) of the said Bengal Act it has been observed that the purpose of prescribing that the reasons should be recorded in writing in Section 7(4a) is to enable the dealer to know exactly the reasons for which the security is demanded; the recording of reasons as made in the instant case would not be enough or sufficient to comply with the terms 'reasons to be recorded in writing' as used in the section and as such the issue of the notice should be granted only on that ground, this rule should also be made absolute.

36. Mr. Dutta submitted that the cases as cited above and at the stage of reply were not applicable in the facts of this case.

37. One of the salient points to be decided in this case is, whether a 'dealer' is under the obligation to intimate the authorities, the death of one of the partners and what should be the effect, if no such intimation is given and as such, the review as was initiated in this case, it was permissible and possible. Admittedly, the partner, Smt. Kankan Wari Baid, died on 9th May, 1973 and the partners of the said firm carried on the business upto 1971, or at least upto the death of the lady, as indicated above. It also appeared from the records that initially the firm in question, was shown, mentioned and indicated as a 'dealer', but such position did not continue thereafter. It appeared further that the firm Eastern Trading Company was not shown as the registered dealer and such registration or the certificate thereof, which was dated 22nd April, 1967 was in-'the name of the three partners. Such being the position, the answering respondents specifically claimed that the dealers in this case were individuals and not the firm. From the intrinsic evidence as available in this proceedings and more particularly from the letter dated 22nd August, 1975 as mentioned hereinbefore, it appeared without any doubt, that after the death of Smt. Kankan Wari Baid, the remaining partners carried on the partnership business under the firm name and that too, on the basis of a partnership executed on 1st November, 1973 as the transferees of the erstwhile firm. Such being the position, the petitioner should be deemed to be the absolute transferees, having their identity completely merged under Section 17 of the said Bengal Act, which deals with transfer of business and is to the following effect:

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 the 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.

38. The transferee from a dealer of his business under Section 17 of the said Bengal Act becomes liable for arrears of sales tax due from such transferor and in cases where a person steps into the shoes of another or body of persons incharge of the undertaking, he makes himself responsible for each and every prior conduct of the transferor and furthermore, he has also the responsibility for any evasion of tax, if such an event has occurred in course of dealings of the transferor. A 'transfer' as observed in the case of Madras Type Foundry v. Joint Commercial Tax Officer, Harbour Division-III, Madras [1972] 30 STC 143 cannot be limited to only voluntary transfer, but also includes involuntary transfer. Whenever a person, for any reason whatsoever, secures a transfer of business as is popularly known and understood, he as such transferee, would be known as a 'dealer'. Thus, it is apparent that Section 17 creates a liability on the transferee for the dues of the transferor, for the period prior to the date of transfer and under the said section, what is essential and utmost is, that there must be either a transfer or any other disposition of the business by the transferor, who must be a registered dealer, and such transfer or other disposition may be either in whole or in part. One thing is also certain that both the transferor and the transferee are jointly and severally liable to pay the tax, including penalty, if any, due from the transferor in respect of the period upto the time of such transfer, disposition or change. It is also thus clear that firstly, either the whole or part of the business as such, must be transferred, and secondly, if there is any change in the ownership, the previous owner must be succeed in the business or part thereof by the transferee. Such tests, without any doubt would apply appropriately in this case. In the case of Anakapalle Co-operative Agricultural and Industrial Society v. Workmen : (1962)IILLJ621SC , the tests for determining whether there has been any change in the ownership or not have been laid down, specified, dealt with and discussed by the Supreme Court. It has also been observed in the case of Commissioner of Income-tax, Madras v. K.H. Chambers : [1965]55ITR674(SC) that tests of change of ownership, integrity, identity and continuity of a business have to be satisfied, before it can be said that a person 'succeeded' to the business of 'another'. In terms of the observations in the case of Bajranglal Bajaj v. State of M.P. [1965] 16 STC 350 it would appear that though all the assets of the particular business may not be transferred, what happens in order to construe succession in business, is a transfer of a business or a part thereof as such and not merely some of the assets of the business.

39. Section 17 of the said Bengal Act under consideration, is also applicable in the case of transfer by inheritance and merely because the assessment was made in the name of the business, in terms of the determinations in the case of Bibas Chandra Gon v. State of West Bengal [1964] 15 STC 277, would not make the assessment invalid. There is no reason as to why the transfer as ^contemplated under Section 17 of the said Bengal Act, should be given a restricted meaning as Section 5 of Transfer of Property Act, which deals with some particular forms of transfer and in my view, there is no reason to hold that the Legislature intended to leave cases of transfer by inheritance or succession out of the purview of the said Section 17 as in view of Section 16 of the said Bengal Act read with Section 10(2) of the same, every registered dealer, which means any person who carries on the business of selling goods in West Bengal and includes the Government and is registered under the said Bengal Act, who is required to furnish returns, is also required, within the prescribed time, to inform the authorities, if the dealer 'sells or otherwise disposes of his business'. In the event of the death of the concerned dealer, his legal representatives are to furnish such information and then the question would come as to what the authorities are expected to do on receipt of such information. Section 7(4) of the said Bengal Act, which lays down that the Commissioner may from time to time amend any special certificate of registration in accordance with the information furnished under Section 16 .or otherwise received, is an answer. On receipt of such information the Commissioner concerned, may from time to time amend any certificate of registration in accordance with the information as furnished under Section 16 of the said Bengal Act or otherwise received. Section 16 deals with informations to be furnished regarding the change of business and is to the following effect :

If any dealer to whom the provisions of Sub-section (2) of Section 10 apply,-

(a) sells or otherwise disposes of his business or any part of his business or any place of business or effects or comes to know of any other change in the ownership of the business, or

(b) discontinues his business or changes his place of business or opens a new place of business, or

(c) changes the name or nature of his business or effects any change in the class or classes of goods in which he carries on his business and which is or are specified in his certificate of registration, he shall within the prescribed time (and in the prescribed manner) inform the prescribed authority accordingly; and if any such dealer dies, his legal representative shall in like manner inform the said authority.

40. In view of such and necessary amendment of the certificate under Section 7(4) of the said Bengal Act, the persons or authorities, whose names are introduced by amendment in the registration certificate, become liable under Section 10(2) of the said Bengal Act, which require that the dealers concerned, as may be required so to do by the Commissioner by notice served in the prescribed manner and every registered or certified dealers shall furnish such returns by such date and to such authorities as may be prescribed. It should be noted that Section 10 of the said Bengal Act deals with payment of tax and returns. Thus, under Section 10(2), the persons or authorities, who are subsequently introduced, are required to furnish returns by such dates and to such authority as may be prescribed. The liability of those persons and authorities whose names are so recorded in the certificate of registration may accrue with effect from the date of the amendment or from the date of the transfer or devolution as the case may be or the transferee would be liable in the same manner as that of the original dealer. The answer to such question would be available from the terms of Section 17 of the said Bengal Act, which serves two purposes, i.e., it defines the liability of the transferee and the lessee and the same, further enables the transferee or the lessee, to file an application to the Commissioner for amendment of the registration certificate. Under Section 16, discharge of obligation as indicated hereinbefore, of the transferor or the legal representative to inform is required but the said section do not provide for any application to be made by the transferee or the lessee and such contingency is provided for in Section 17 of the said Bengal Act. In terms of the provisions of the said Bengal Act, in case a dealer registered under Section 17(1), liable to furnish the return in question under Section 10(2) and liable to be assessed under Section 11, sells or otherwise disposes of his business, he is required, in terms of Section 16, to inform the prescribed authorities about such transfer and in case of death of a registered dealer, the legal representative should furnish the necessary information and after that, the registration certificate would be amended and the transferee of the dealer included under Section 17(4). In view of such amendment, those transferees or the legal representatives would be liable to be assessed and penalised under Section 11 of the said Bengal Act, which deals with assessment of tax and by Section 17, the liability of 'the transferee and the dealer' will be the same as if the registration certificate had been initially granted to them. A question would also arise as to whether transfer in Section 17, would include transfer by operation of law. The word 'transfer' is a word of general import and such transfer may be by the act of parties as also by operation of law. Section 17 defines the rights and liabilities of the transferee. Such transferee will have the right to have his name incorporated in the registration certificate, for carrying on the same business and the liability would be to the same extent, as if the name was initially registered. If the word 'transfer', meant transfer by act of parties only, and excluded transfer by operation of law, even then, information regarding such transfer, would still have to be furnished under Section 16(2) of the said Bengal Act and on such information, the authority could amend the registration certificate under Section 7(4) and consequently, the legal representative would be liable under Sections 10(2) and 11, even though the extent of liability of the legal representative would remain undefined and uncertain. The word 'transfer' without any doubt, do not refer to the manner in which the transfer took place, but it relates to the fact of changing over.

41. Section 4 of the said Bengal Act, which is the charging section, also makes the dealer liable to pay the sales tax on his turnover. Section 17 which is really supplementary to Section 4, postulates that if a dealer transfers his business, the transferee shall be liable to pay the tax. It should be noted that Section 17 does not supersede Section 7(4) but the same is only supplementary to Section 4. So, in terms of the observations in Veerappa Ningappa Sanakal v. Mysore State [1962] 13 STC 796, a transferee is also made liable for payment of the sales tax in addition to the transferor-dealer and the same do not substitute the liability of the transferee for that of the transferor-dealer and the said liability is an additional one imposed upon the transferee, preserving the liability of the dealer, which Section 4 brings into existence. If a transferor-dealer, at the time of transfer, has failed to discharge any tax obligation in respect of the business transferred by him, the transferee dealer would be liable to discharge that obligation in the same manner and to the same extent as if he was a transferor-dealer himself.

42. In terms of the observations in the case of Kshitish Chandra Sarbajna v. State of West Bengal [1967] 20 STC 42 it cannot be said that liability of the transferor would come to an end as soon as the transfer is effected and that the only person liable, was the transferee. Section 17 also imposes an additional liability on the transferee to keep intact, the liability of the transferor. Therefore, by reason of the transfer, he is not absolved from the outstanding liability of the transferor's business and by virtue of the said section, a transferee is also retrospectively liable to discharge the duties imposed on the vendor, subject to only restrictions that he could not for the purpose of offence under Section 22, be said to do or had omitted to do, what the original dealer did or omitted to do. The above Calcutta case has also interpreted Section 17 to the effect, that the said section makes the transferee liable for the outstanding tax liabilities and some other liabilities of the transferor and for all purposes, the transferee shall be deemed to be the registered dealer, as if the certificate of registration of the transferor had initially been granted to the transferee. In terms of the observations in the case of Nandi Charan Paul & Bros. Ltd. v. Certificate Officer, Alipore (1960) 64 CWN 484, the transfer, as contemplated in Section 17 of the Bengal Finance (Sales Tax) Act, 1941 relates to the transfer of business of a registered dealer, and therefore, irrespective of the fact as to how many times the transfer is effected, the transferee remains liable under Section 17, as transferee from the original registered dealer.

43. The records as produced by the answering respondents were looked into, for the purpose of finding out whether the order of review was passed on recording the reasons, duly. The submissions of the respondents on this point have been indicated hereinbefore. From the records it appeared that reasons were recorded. In any event, it cannot also be overlooked that the petitioners had the due and necessary understanding of the substance of the notices. Such being the position, the submissions on the issue of the defective notices, -as were put forward by Mr. Ghosh, cannot be accepted. In fact, the petitioner had due knowledge of all that had happened and so also the fact that their review proceedings were disposed of. Such being the position, the proceedings as initiated, cannot be held and found to be defective, which was specifically urged by Mr. Ghosh and the more so when, the liability to pay tax and to comply with the obligations as indicated hereinbefore, emanated from the provisions of the said Bengal Act.

44. It cannot also be doubted or disputed that the notices in the instant case were issued on the understanding of the Appeal Court's order by the officer concerned and more particularly when, he felt and realised that such authority was given to him. The order as made by the Appeal Court has been quoted hereinbefore. The deed dated 5th June, 1975 which was produced by Mr. Dutta also proved and established absolute transfer. This deed was admittedly a subsequent one. The first or the earlier deed was produced by Mr. Ghosh. It cannot also be doubted that the consideration of the deed in question or the question of review has now become more academic than legal and real. In a writ proceeding, such academic discussions as involved in this case, should ordinarily be avoided. In view of the above, it cannot be held that a 'dealer' has no obligation to intimate the authorities, the death of one of his partners and this I am of the view that review proceedings would be possible in case of his default. The initiation in this case, was also possible and permissible, in view of the subsequent order of the Appeal Court or such circumstances as indicated hereinbefore.

45. In view of the observations and findings as above, the cases as cited by Mr. Ghosh, on the question as to who was the 'dealer' and the effect of transfer, in my view, would be of no help or any assistance to the petitioners and furthermore, such stand as taken by the petitioners, was not bona fide. As I have also indicated on the reasons as disclosed, that proceedings as initiated was permissible and possible in this case, the submissions as advanced by Mr. Ghosh, contrary to such findings, were of little substance. While on the point and in respect of the review, Rule 80(6) may also be looked into and applied.

46. It must be observed that Mr. Ghosh was right and justified in contending that the existence of other available and alternative remedy, would not ordinarily be a bar in maintaining an application under Article 226 of the Constitution of India and furthermore even in the presence of such available remedy, an application under Article 226 could be maintained, if there is violation of principles of natural justice and that apart, there was initial lack of jurisdiction of the concerned authority. But, the submissions of Mr. Ghosh that when the High Court has entertained an application under Article 226, the same cannot be dismissed on the ground of available remedy or the non-availing of the same, cannot be accepted.

47. It must also be recorded that there was another submission made by Mr. Dutta that since the facts relating to Review Cases Nos. 2 and 3 and Appeal No. 648 of 1976-77 were not duly pleaded, the petition would not be maintainable, were of some substance.

48. In view of the above the rule is discharged. There will be no order as to costs.

49. In view of the findings and since the facts and point of law are the same, I also dispose of C.R. Nos. 2693 to 2695 (W) of 1976 on the basis of the order as proposed in C.R. No. 2692 (W) of 1976.


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