1986 (7) TMI 376 - HC - VAT and Sales Tax

Summary

Issues:
Jurisdiction of civil court in a suit for declaration and injunction against recovery of sales tax assessed against a partnership firm when the plaintiff claims not to be a partner of the firm.

Analysis:
The defendant filed a second appeal against a suit for declaration and injunction decreed by both lower courts. The plaintiff, Ram Singh, alleged that the sales tax authorities assessed a recovery against a business concern named Darshan Singh Ram Singh, in which he claimed not to be a partner. The State wanted to recover the amount from him based on his alleged partnership in the firm. The plaintiff contended that the assessment was against his brother, Darshan Singh, individually, and not against any partnership firm involving him. Both lower courts found that the civil court had jurisdiction to try the suit and that the plaintiff was not a partner in the firm. The defendant argued that the civil court had no jurisdiction and that the plaintiff was a partner in the firm, citing a Division Bench judgment. However, the court found no merit in the appeal.

In the present suit, the plaintiff's sole contention was that he had no association with the partnership firm assessed for sales tax, hence should not be liable for the recovery. The plaintiff did not challenge the assessment order or the department's right to recover the tax from Darshan Singh. The court held that since the plaintiff had no connection with the firm, the civil court had jurisdiction. Referring to the judgment cited by the defendant, it was noted that liability for tax assessment against a firm depends on the individual's involvement, as seen in a previous case where the individual was found liable due to his pivotal role in the firm.

Regarding the current case, it was established through evidence that the plaintiff never admitted to being a partner in the firm before the sales tax authorities. The diary allegedly recovered from the plaintiff, which could have shown his involvement, was not produced by the department. The lower appellate court found that the plaintiff never represented any interest in the business before the tax authorities. This factual finding could not be challenged in the second appeal. As the plaintiff had no association with the firm, he could not be held responsible for the recovery. Consequently, the appeal was dismissed, with no order as to costs.