9911796707
TMI Blog1973 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... of the business of Indian Oil Agencies (hereinafter referred to as the "Oil Agencies"), as contemplated under section 24 of the Act. Annexure 2 series are notices under section 21 of the Act issued to various parties. 2.. According to the case of the petitioners, Messrs. Bharat Gas and Oil Distributors (hereinafter referred to as the "Bharat Gas") are a partnership business carried on by petitioners Nos. 1 and 2. The partnership was entered into on 14th January, 1969. Prior to that date, the Oil Agencies were carrying on business in various commodities, including the sale of Indane gas as agents of the Indian Oil Corporation (hereinafter referred to as the "corporation"). Both these firms were registered under the Act. The Oil Agencies we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Whereas a sum of is payable by Bharat Gas and Oil Distributors, Bistupur (dealer) of who has failed to make payment of such amount and on account of S.T. dues against M/s. Indian Oil Agency, Bistupur...." Copies of such notices were sent to Bharat Gas, the memo portion stating "Copy to.........for information since you are treated as transferee of M/s. Indian Oil Agency, Bistupur." 4.. The petitioners, having thus come to know of the action taken by the sales tax authorities, filed an application on 5th January, 1970, under section 32 of the Act, for review of the order. The Assistant Superintendent of Commercial Taxes, Jamshedpur, after hearing the petitioners, passed the order contained in annexure 1, which is under challenge in this w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer of only a part of the business, namely, the business carried on in the sale of Indane gas, and thus section 24 of the Act was not applicable to the facts and the circumstances of the case. The sales tax authorities were, therefore, not right in treating the petitioners to be transferees under section 24. It was contended on behalf of the contesting respondents that section 24 is applicable even in cases where there is transfer of only a part of the business. In my view, the contention of the respondents is not correct. Section 24 may be read. It is as follows: "24. Liability to pay tax in case of transfer of business.-(1) When the ownership of the business of a dealer liable to pay tax under this Act is entirely transferred the transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar provisions are there in some other States' Acts also. I find that in section 33(1) of the Madhya Pradesh General Sales Tax Act the expression used is "when the ownership of the business of a dealer liable to pay tax is entirely transferred In the case of Bajranglal Bajaj v. State of Madhya Pradesh[1965] 16 S.T.C. 350., although there is no detailed discussion about the meaning of the expression quoted above, this case indicates that it was accepted that the section is applicable only where the ownership of the business of a dealer was entirely transferred. I also find that in Bombay, the provision in the Act of 1953 was similar to the provision in our Act. In that Act, the language used in section 26(1) was "where the ownership of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire business." (The underlining is mine.) 9.. I would, however, like to make it clear that I am not expressing any opinion as to what constitutes transfer of the entire business-whether it is sufficient if there is substantial identity in the nature and extent of the activities which were being carried on by the transferor or the transferee, or whether it would be necessary that the business of the transferor should substantially cease to exist. In the light of this discussion it would be clear that, in order to sustain the impugned order, it is necessary that there should be a specific finding that the entire business of the Oil Agencies was transferred to the Bharat Gas. As I read the order, I do not find any specific finding on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose circumstances and in view of the discussions made above, I think that the petitioners should not be prevented from getting relief in exercise of the powers of this court under article 226 of the Constitution. 11.. The learned counsel for Indian Tube Company (respondent No. 14) and the learned counsel for respondent No. 9 (TISCO) contended that they have been unnecessarily made parties to the writ application and they should, in any event, be awarded costs in this case. Having appreciated the facts and the circumstances of this case, it is not possible to accede to their contention. 12.. In the result, this writ application is allowed in part and the order contained in annexure 1 is quashed. The sales tax authorities will now proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
