2011 (7) TMI 777 - HC - VAT and Sales Tax

Writ petition - Section 40 (1A) of the Bombay Foreign Liquor Rules, 1953, in Appendix 2, states that except with the previous sanction of the Collector , no person recognised as partner under subrule (1) shall be allowed to withdraw from the partnership and to have his name as partner deleted from the licence - In the absence of the findings on relevant aspects of the matter, the order cannot be sustained and the matter will have to be sent back to the Minister, Department of State Excise, Mumbai, for deciding the matter afresh - petition is allowed

Summary

Issues:
1) Challenge to the order setting aside previous decisions related to partnership dissolution and license deletion.
2) Dispute over partnership dissolution and license deletion.
3) Jurisdiction of the Minister, Department of State Excise, to adjudicate partnership disputes.
4) Interpretation of Section 40(1A) of the Bombay Foreign Liquor Rules, 1953.

Analysis:
1) The writ petition contested the order dated 23.12.2008, by the Minister, Department of State Excise, Mumbai, which overturned previous decisions from 1999 and 2002 regarding the deletion of the petitioner's name from the F.L.II Licence.
2) The Collector, Washim, had initially rejected the application for deletion in 1999, upheld by the Commissioner in 2002 due to the unresolved partnership between the petitioner and respondent nos.4. The Minister, in 2008, set aside these decisions, emphasizing the need for civil court intervention in partnership disputes.
3) The Minister's jurisdiction to intervene in partnership matters was questioned, as per Section 40(1A) of the Bombay Foreign Liquor Rules, 1953, which empowers the Collector to decide on partner deletions without civil court involvement. The Minister's failure to address the findings of the lower authorities independently was highlighted as an error.
4) Section 40(1A) specifies that partner deletions from licenses require the Collector's approval, without the need for civil court resolution. The Minister's decision was deemed flawed for not considering this provision and was set aside by the High Court, remitting the matter back to the Minister for a fresh decision in line with the law.