1978 (9) TMI 163 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Validity of the return filed by the counsel of the assessee under section 7 of the U.P. Sales Tax Act.
2. Validity of the penalty order in light of the revised return filed by the assessee.
3. Validity of the penalty imposed on a reconstituted firm after the death of a partner.

Issue-wise Detailed Analysis:

Issue 1: Validity of the return filed by the counsel of the assessee under section 7 of the U.P. Sales Tax Act

The primary question was whether the return for the fourth quarter of 1967-68, signed and filed by the counsel of the assessee, could be deemed valid under section 7 of the U.P. Sales Tax Act. The court analyzed the relevant statutory provisions, including section 7(1) of the Act and rule 41(1) of the Rules, which mandate that the return must be filed by the dealer. Form IV, which prescribes the format for the return, requires the signature of a person connected with the business, such as a proprietor, partner, or director. The court concluded that the use of the word "etc." in Form IV refers to persons integrally connected with the business, not to any authorized agent like a lawyer. The court also examined rule 77-A, which allows certain actions to be performed by a lawyer or authorized agent unless otherwise specified. However, since there was no written authorization for the lawyer to file the return and the statutory provisions required the dealer's signature, the court held that the return filed by the counsel was not valid.

Issue 2: Validity of the penalty order in light of the revised return filed by the assessee

The penalty was imposed under section 15-A(1)(b) of the Act for allegedly concealing turnover or deliberately furnishing inaccurate particulars. The court noted that the penalty was based on a comparison between the initial return filed by the counsel and the revised return filed by the assessee. Since the first return was deemed invalid, the only valid return was the revised one filed by the assessee. Consequently, there was no basis for imposing a penalty under section 15-A(1)(b), as there was no concealment or inaccuracy in the revised return. Therefore, the penalty order was invalid.

Issue 3: Validity of the penalty imposed on a reconstituted firm after the death of a partner

The court addressed whether the penalty imposed on the firm was valid given that the firm had been reconstituted after the death of one of its partners. Section 3-C of the Act was examined, which states that the liability for tax and penalty continues for the old firm, including the surviving partners, even after reconstitution. The court found that the penalty proceedings were taken against the old firm, consisting of the surviving partners who reconstituted the firm. Therefore, the penalty was valid under section 3-C, as the reconstitution did not absolve the firm or its partners from liability.

Conclusion:

The court answered the first question in the affirmative, in favor of the assessee, and the second and third questions in the negative. The return filed by the counsel was not valid, and thus, the penalty based on it was invalid. However, the penalty imposed on the reconstituted firm was valid under section 3-C. The assessee was entitled to costs, assessed at Rs. 200. The reference was answered accordingly.