9911796707
TMI Blog1960 (4) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... etti Sriramulu died on 5th June, 1958. The Sales Tax Authorities demanded from the petitioner who was in possession of the estate of his father the payment of the amount due and issued to him a notice on 12th November, 1958, under section 8 of the Revenue Recovery Act (Act II of 1864) calling upon the petitioner to pay Rs. 6,099-39 nP. on or before 9th November, 1958, in default it was notified that the attached properties would be brought to sale. This petition was filed on 19th November, 1958, challenging the legality of the proceedings initiated under the provisions of the Madras Revenue Recovery Act. The petitioner states in his affidavit that he had nothing to do with his father's business, that he was neither a dealer nor an assessee under the Madras General Sales Tax Act and that he is not bound to pay the arrears of sales tax with respect to the business of his father. It is also stated that from the papers left by his father, he found that for the months of April, May and June, 1950, a sum of Rs. 5,873-5-3 was paid on 8th May, 1951, and that a receipt was also issued by the authorities therefor. It is further stated in the affidavit that to the best of his information and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......" It is argued that if he is not a dealer no tax can be levied against him. If he is not liable to pay any tax, then he would not be a defaulter within the meaning of section 5 of the Revenue Recovery Act. The arrear of sales tax is a debt which is exigible from the estate of the dealer. That being so, the unpaid debt due to the Government is a debt that can be enforced against the estate of Sriramulu. It has been repeatedly held that the English doctrine relating to the priority of Crown debts applies in India (Vide Deputy Commissioner of Police v. VedanthamA.I.R. 1936 Mad. 132. and Manickam Chetty v. Income-tax Officer, Madurai (1938) 1 M.L.J. 351; 6 I.T.R. 180. If so, the arrears of sales tax can be collected from the estate of the assessee as if it were a debt. The petitioner is the son of the assessee whose estate is now in his hands. If the petitioner was an undivided son and he succeeded to the estate of his father by right of survivorship, the debt would be binding upon him on the Hindu law theory of pious obligation. If, on the other hand, the estate of the deceased devolved on the petitioner by inheritance, the estate would still be subject to the payment of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power so confided, the State Government have in the rules published on 15th June, 1957, framed rule 23, which is in these terms: "23. (1) Where any dealer doing business in respect of which tax is payable under this Act is dead, the executor, administrator, successor in title or other legal representative of the deceased dealer shall, in respect of such business, be liable to submit the returns due under these rules, and to assessment under section 5 or 6 or any notification under section 9(1), and to pay out of the estate of the deceased dealer, the tax and/or any penalty assessed or levied as payable by the deceased dealer. (2) The provisions relating to appeals and revision, shall be applicable to assessments made under sub-rule (1) as if the executor, administrator, successor in title or other legal representative were himself the dealer. (3) The provisions of sub-rules (1) and (2) shall apply mutatis mutandis to a partnership firm of which the managing partners have died." To my mind, this gives a complete answer to the contention of Mr. Anantha Babu. But what the learned counsel contends is that this rule is not valid for the reason that it is in excess of legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escaped turnover was ultra vires on the ground of unconstitutional delegation of the legislative power. Under the Madras General Sales Tax Act there was no provision in the body of the Act for the levy of assessment on escaped turnover. Section 19(2)(f) of the Madras General Sales Tax Act for the making of rules provides for the assessment of the tax under the Act on any turnover which had escaped assessment, and the period within which such assessment might be made, not exceeding three years. In conformity with that provision rule 17(1) was made, which runs as follows: "If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, subject to the provisions of sub-rule (I-A) may, at any time within three years next succeeding that to which the tax or licence fee relates, determine to the best of his judgment the turnover which has escaped assessment and assess after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. It was argued before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is valid-and I see no reason why it is not-then the the tax payable by Arisetti Sriramulu can be realised from his estate in the hands of the petitioner and if the petitioner has not paid the tax on demand, I see no inhibition to the provisions of the Revenue Recovery Act being put in motion. There is no force in the contention that there is no valid notice of demand. I am of opinion that this writ should also fail for another reason. Under section 59 of the Revenue Recovery Act, there is a specific effective alternative remedy by way of a suit. That section is in these terms: "Nothing contained in this Act shall be held to prevent parties deeming themselves aggrieved by any proceedings under this Act, except as hereinbefore provided, from applying to the Civil Courts for redress ; provided that Civil Courts shall not take cognizance of any suit instituted by such parties for any such cause of action, unless such suit shall be instituted within six months from the time at which the cause of action arose." In these circumstances, the writ petition fails and is dismissed with costs. Advocate's fee Rs. 100. Petition dismissed. - - TaxTMI - TMITax - CST, VAT & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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