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TMI Blog1968 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 1959. The assessment orders and demand notices were served on November 5, 1959, and November 6, 1959, respectively on Kishanlal, one of the partners who was apparently in management of the firm's business. The dealer preferred appeals against the assessments for both the years. The Assistant Commissioner of Commercial Taxes, Hyderabad Division, in Appeal Orders Nos. 391/59-60 dated March 17, 1964, and 392/59-60 dated March 17, 1964, dismissed both the appeals. The dealer then preferred appeals to the Sales Tax Appellate Tribunal. The Tribunal by its judgment in Appeals Nos. 533, 537, 493 and 467 of 1964 dated May 21, 1965, allowed the appeals in part. It is necessary to refer to the findings recorded by the Tribunal in its common order dated May 21, 1965, covering all the appeals before it, namely, Tribunal Appeals Nos. 533, 537, 493 and 467 of 1964. The following are the findings: " 1. Appeals Nos. 533/64 and 537/64 relate to the assessments for the two years 1953-54 and 1954-55. Though according to the memorandum of appeal the appellants M/s. B. Kishanlal Oil Mills, disputed the entire turnovers assessed, namely Rs. 38,75,496-10-0 and Rs. 37,19,720-6-0 on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution are not permissible in law. The questions of law raised for decision by the High Court are formulated thus: "1. Is the assessment barred by limitation? 2.. Is not the Tribunal bound to decide the question of limitation, whether it be urged or not? 3.. Is the assessment made on the firm after its dissolution permissible?" Now section 22 of the Act is in these terms: "Revision by High Court.-(1) Within ninety days from the date on which an order under sub-section (4) of section 21 was communicated to him, the dealer or the authority prescribed in this behalf may prefer a petition to the High Court against the order on the ground that the Appellate Tribunal has either decided erroneously, or failed to decide, any question of law..." It is difficult to see in the present cases how it can possibly be contended that the Appellate Tribunal decided any question of law erroneously, or failed to decide any question of law. Apart altogether from the question whether there is any merit in the point of limitation, when a point of law is expressly given up by an Advocate appearing before the Tribunal-and it must have been advisedly-it is a far-fetched contention that the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the accounts were settled, the amounts available to the credit of the retired partners, that is to say, Mohanlal and his father, should be paid to them within three years by the continuing partners. The entire business was taken over by the remaining partners. It is further averred: "This fact was intimated to the sales tax and other authorities." Thereafter the business was carried on by the other partners and another Shankerlal Jagadish Pershad, who was admitted as a partner from February 13, 1957. That partnership again was dissolved on July 15, 1957. All the assets were now left to Hariprasad. The other three partners retired. The same business was being carried on from that time onwards by Hariprasad under the name and style of B. Rajendra Oil Mills and Refinery. The further case of the petitioner is that he and his father had retired from the firm and it was the duty and obligation of the continuing partners to look after the tax proceedings. He and his father had faith in the erstwhile partners and so they did not keep themselves in touch with all details of the tax proceedings. Furthermore, a sum of Rs. 75,000 was set apart for payment of the sales tax in the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action became necessary is not known. The plea is one of law, which is vital to the case. The petitioner is advised it is a very substantial argumentnot a frivolous one. Even if it lacked substance, it was for the Tribunal to say so and not for counsel......... It was also not brought to the notice of the Tribunal that the assessee was a dissolved firm and so the assessment was bad in law. These submissions are being made only with a view to substantiate the plea of the petitioner that he has had a raw deal and the whole case was mismanaged. Subsequent to the Tribunal's judgment, revised assessment orders were passed on December 26, 1965. Even at that stage no notice was given to the petitioner." Then the petitioner goes on to indicate the points in support of the writ petition and they are: "1. That the assessments for 1953-54 and 1954-55 were made on October 28, 1959, after the period prescribed by law for making assessments and so the orders are barred by limitation and are accordingly void. No demand of tax could issue on the basis of such orders. The point is further elaborated by stating that the transactions occurred at a time when the Hyderabad General Sales Tax Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dismissed by the Assistant Commissioner; that the dealer thereafter preferred further appeals to the Sales Tax Appellate Tribunal and that the Tribunal by its order dated May 21, 1965, had allowed the appeals in part and given some substantial relief to the firm and that there is no illegality or irregularity in the procedure followed by the authorities constituted under the Act. It is further stated as regards the question of limitation that there is no time-limit for making assessments under the Hyderabad General Sales Tax Act, 1950, except in cases of escaped turnovers. The instant cases were not cases of escaped turnovers. It is further averred that the assessment proceedings were initiated in October, 1955, when the firm was in existence; therefore the making of the original assessment orders on October 28, 1959, was perfectly in order. Moreover the partners of the firm did not intimate the fact of dissolution to the assessing authority. It is also stated that the application of the provisions of the Andhra Pradesh General Sales Tax Act, 1957, to the assessments in question is saved by the provisions of section 41 of that Act. Further under rule 22 of the Andhra Pradesh G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded family or association has been dissolved, the assessing authority shall make an assessment of the turnover of the firm, Hindu undivided family or association, as the case may be, as if no such discontinuance or dissolution had taken place and all the provisions of this Act, including the provisions relating to the levy of a penalty or any other sum chargeable under any provision of this Act, shall, so far as may be, apply to such assessment. (2) Where such discontinuance or dissolution takes place after any proceeding in respect of an assessment for any year has commenced, the proceeding may be continued against every person who was, at the time of such discontinuance or dissolution, a partner of such firm or a member of such Hindu undivided family or association, as the case may be, or the legal representative of any such person who is deceased, from the stage at which the proceeding stood at the time of such discontinuance or dissolution, and all the provisions of this Act shall, so far as may be, apply accordingly." This provision was obviously enacted by the State Legislature with a view to meet the legal objection envisaged by the Supreme Court rulings referred to supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Acts or section shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken; and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act." The present cases are cases where assessment proceedings were started as early as 1954 in which year returns were filed. These are cases of original assessments with reference to the returns and the materials produced for check. For an original assessment there is no time-limit under the Hyderabad General Sales Tax Act, 1950. This substantial right of making an original assessment without time-limit under the Hyderabad General Sales Tax Act, viewed from the point of view of the revenue, or a liability already i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was done or action was taken." Then, after noting the rival contentions and referring to the cases cited before them, the learned judges summed up their conclusion thus: "In the present case, it is abundantly clear that the assessment proceedings had commenced before the advent of the Andhra Pradesh General Sales Tax Act (see Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax[1963] 14 S.T.C. 976; A.I.R. 1964 S.C. 766.). By the time the new Act came into force the petitioner had already submitted his monthly returns. The order of assessment was, however, made subsequently. He was assessed to the same tax as was due under the terms of the Hyderabad General Sales Tax Act. Under the terms of the same Act, a competent authority could suo motu, in exercise of the powers of revision, reassess him at any time subject to the conditions prescribed. The petitioner cannot successfully set up the provisions of the repealing Act to evade this liability which in point of fact was in terms saved by the said Act." We respectfully agree with the reasoning and conclusion of the learned judges in the above decision. The controversy is really set at rest and the matter is no longer re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions with the firm, the assessment in question and the demands are against the principles of natural justice. There is no substance in this contention either. Beyond doubt or dispute the dealer in the instant case at all material times was the firm of M/s. Kishanlal Oil Mills. The returns for the two years were submitted by the partner who was in charge of the affairs of the firm and in the course of the proceedings, notices were admittedly served on him and he submitted the returns. He made representations to the authorities at the stage of assessment, and at the stages of first appeal and second appeal raised contentions against the legality and validity of the assessment proceedings, and his representations were duly considered by the authorities and the firm got some substantial relief in the end. The assertion of Mohanlal, the petitioner in these writ petitions, that the fact of dissolution of the firm had been intimated to the authorities, has been stoutly denied in the counter-affidavit filed on behalf of the respondent. That being so, and the liability to tax being joint and several in the case of a partnership firm, it is neither good law nor good sense to require that e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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