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TMI Blog1964 (8) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of the petitioner-firm. For the realisation of the arrears of sales tax, Rs. 16,724-39 nP. aforesaid due and recoverable from Azimunnissa, as one of the partners of H.M.S. Kurshid & Co., the Department seized the Avery Weighing Machines and thousand hides and skins from the premises of the petitioner, K.O. Mohamed Sulaiman & Co. It is not disputed that the aforesaid movables are the assets of the firm, K.O. Mohamed Sulaiman & Co. It is alleged that the weighing machines belong to the petitioner-firm, while the hides and skins were held by it as bailee on behalf of the customers for export. For the purpose of the present enquiry that does not make any difference. On representations made by the petitioner, the attachment of the Avery Machines has not been effected and they have been returned to the petitioner. This writ petition has been filed questioning the right of the State to seize and take possession of specific items of assets (in the instant case, movables) belonging to the petitioner-firm for realising the arrears of sales tax due from a dealer (in respect of his other business activities) on the ground that he happens to be a partner of the petitioner-firm. Mr. V.K. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment. (2) Where a partner of a firm liable to pay any tax or any amount under this Act retires, he shall, notwithstanding any contract to the contrary, be liable to pay the tax or other amount remaining unpaid at the time of his retirement and any tax or other amount due up to the date of retirement, though unassessed." Even though there was no provision corresponding to this in the Act of 1939, it has been held that the arrears of sales tax due would be a joint and several liability of the partners. Vide Ponnuswami grammani v. Collector of Chingleput[1960] 11 S.T.C. 80. The relevant portion of section 24 of the Act of 1959, which provides for the payment and recovery of the tax, runs thus: "24. Payment and recovery of tax.-(1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than twenty-one days from the date of service of the notice. If default is made in paying according to the notice of assessment, the whole of the amount outstanding on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether tax liability or a fine imposed. In Samuvier v. Ramasubbier(1931) I.L.R. 55 Mad. 72., a Bench of this Court held that a deed of dissolution of the assets of the partnership which consisted of both movable and immovable properties should be only by a registered document. In dealing with the precise nature of the right of a partner over the assets of the firm, the Bench held that even though partners are joint owners of the partnership assets, no partner however has any right to any specific item of the partnership property as representing his. In Annamalai v. AnnamalaiA.I.R. 1919 Mad. 146., a suit was filed by the plaintiffs (partners of a firm) for their share in the assets or debts of the firm realised by the other partners (defendants) while the firm was a going concern and a dissolution had not taken place. The Court held that no partner has a right to take any portion of the partnership property and claim that it is his exclusively, during the existence of partnership or after it has been dissolved. The legal position was explained thus at page 148: "The plaintiff in this suit cannot legally assert any right to a specific portion of the deposit made by his partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery for execution of a decree obtained individually against a partner. It is unnecessary to refer to the decisions arising under the aforesaid provisions in which it has been held that the creditor has no right to seize any movable property either belonging to the judgment-debtor and others as co-owners or belonging to the firm. I shall now refer to the decisions which have dealt with the question of the right of seizure of movables where they belong to several persons in joint ownership. In In re Marina Narasanna(1932) I.L.R. 55 Mad. 1041., it was held that while recovering the fine imposed upon a person under section 386 or section 88 of the Code of Criminal Procedure, the Crown has no right to anything more in joint movable property than the delinquent himself had and it cannot deprive the co-owners, by seizing the property, of their right of possession in it, and that the correct procedure is to follow the provisions of Order 21, rule 47, of the Civil Procedure Code. The learned Judge held that there can be no seizure of any interest in the property other than the separate individual property of the delinquent. In Kolli Venkataraman v. The Collector of Kistna(1936) 70 M.L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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