1964 (8) TMI 57 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the State can seize movable properties of a firm to realize sales tax arrears due from a partner of that firm, where the arrears pertain to another firm in which the partner was involved.

Detailed Analysis:

Issue 1: Seizure of Movable Properties of a Firm for Partner's Tax Arrears

Facts:
The case involved two firms: H.M.S. Kurshid & Co., which was dissolved in 1958 and owed Rs. 16,724-39 nP. in sales tax, and K.O. Mohamed Sulaiman & Co., a still-operating firm. Azimunnissa, a common partner in both firms, was liable for the tax arrears of H.M.S. Kurshid & Co. The State seized movable properties from K.O. Mohamed Sulaiman & Co. to recover the arrears.

Contentions:
The petitioner argued that the State could only claim rights over the assets attributable to the individual partner and not the firm's assets, as no partner has a specific share in any asset until dissolution and settlement of accounts. The State contended that Section 24 of the Act allowed them to enforce a charge on properties of the person liable for the tax.

Legal Analysis:
The court held that the State could not seize the movable properties of the petitioner-firm to satisfy the tax liabilities of Azimunnissa from another firm. The court emphasized that a partner does not have a specific share in any partnership asset until the partnership is dissolved and accounts settled. The court found no provisions in the Act or Rules that justified the State's procedure.

Relevant Case Law:
- Ponnuswami grammani v. Collector of Chingleput: Established joint and several liability of partners for sales tax arrears.
- Samuvier v. Ramasubbier: Held that partners are joint owners of partnership assets but do not have rights to specific items.
- Annamalai v. Annamalai: Clarified that a partner cannot claim exclusive rights to any partnership property during the existence of the partnership.
- Ramappa v. Thirumalappa: Reiterated that partners do not have specific shares in partnership assets until dissolution.
- Peyare Lal v. Mt. Misri: Asserted that firm property cannot be treated as individual property by any partner.
- In re Marina Narasanna: Held that the Crown cannot seize joint movable property to recover fines.
- Kolli Venkataraman v. The Collector of Kistna: Confirmed that joint family property cannot be seized for an individual member's liabilities.
- Emperor v. Pramatha Bhooshan Ray: Similar to Marina Narasanna, held that joint movable property is not liable to seizure for fines.
- Bansraj Das v. Secretary of State: Held that joint family property cannot be seized for an individual member's fine.
- Buchi Ramiah v. Rukkamma: Held that joint family properties cannot be seized for maintenance due under a Magistrate's order.

Conclusion:
The court concluded that the State had no right to seize the movable properties of the petitioner-firm for the tax arrears of Azimunnissa from another firm. The writ petition was allowed, and a writ of mandamus was issued. The bank guarantee furnished by the petitioner was ordered to be canceled and returned.

Order:
The writ petition is allowed. A writ of mandamus will issue as prayed for. No costs. The bank guarantee furnished shall be canceled by the departmental authorities concerned and returned to the petitioners. Petition allowed.