1970 (3) TMI 128 - HC - VAT and Sales Tax

Summary

Issues:
1. Interpretation of section 19(3) of the Orissa Sales Tax Act regarding the liability of a member of a Hindu undivided family after business disruption.
2. Determining whether the allotment of joint family business on partition constitutes discontinuance or dissolution of the business under section 19(3).

Analysis:
1. The case involved the interpretation of section 19(3) of the Orissa Sales Tax Act, which imposes joint and several liability on partners or members of a Hindu undivided family for tax assessment in case of business discontinuation or dissolution. The question was whether the business allotted to a member post-partition qualifies as discontinued under the provision.

2. The court considered two possible views on the concept of business discontinuance: one suggesting a change in ownership does not constitute discontinuance if business integrity is maintained, and the other implying any change in ownership results in discontinuance. The court referred to precedents and the Privy Council's decision in Commissioner of Income-tax v. P.E. Polson, which clarified that discontinuance entails a complete cessation of business, not just a change in ownership.

3. Applying the legal principles, the court found that as the business continued in its original form and shape post-partition with the member to whom it was allotted, there was no discontinuance. Therefore, the member was not liable to be assessed under section 19(3) of the Orissa Sales Tax Act.

4. Consequently, the court answered the reference question in the negative, disagreeing with the Tribunal's judgment. The court accepted the reference and ruled in favor of the petitioner, stating that there would be no order as to costs, and the reference fee deposited would be refunded.

5. Justice Acharya agreed with the Chief Justice's analysis and the reference was answered accordingly, affirming that the member was not liable under section 19(3) of the Orissa Sales Tax Act.