9911796707
TMI Blog1979 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... une, 1964, till 24th March, 1966, the petitioner and the fifth respondent carried on business in partnership in the name and style of M/s. Kashmir Palace in Bombay. This partnership was dissolved by a deed of dissolution dated 24th March, 1966, in terms whereof, inter alia, the accounts between the partners were settled and the fifth respondent took upon himself the entire responsibility of paying and discharging all the debts and liabilities of the firm, including sales tax liabilities, prior to 24th March, 1966. Thereafter, the petitioner has been carrying on his own business in Kashmir where he permanently resides. On 3rd August, 1972, the petitioner received a notice dated 31st July, 1972, from the fourth respondent stating that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pre-dissolution period, the petitioner could not be held to be liable unless he was personally made a party to the assessment proceedings and the notice of demand was served on him. Elaborating his first contention, Mr. Patil urged that it made no difference whatsoever whether or not the petitioner informed the sales tax authorities about the dissolution of the firm and that, even assuming that the petitioner had failed to do so, tax liability in respect of the post-dissolution period could not be fastened on the petitioner. On behalf of the petitioner it was conceded by Mr. Patil in the course of his arguments that the dissolution of the partnership between the petitioner and the fifth respondent had not been intimated by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished regarding change in business, etc., and states, in so far as is material for the purpose of this case, that where any dealer liable to pay tax under the Act is a firm and the firm is dissolved, every person, who was a partner thereof, shall inform the prescribed authority of such dissolution. Thus, the duty and the liability to give the requisite information is mandatory as is obvious from the word "shall" in section 30. Rule 18 of the Bombay Sales Tax Rules, 1959, inter alia, provides that the information under section 30 shall be given to the prescribed authority in writing within 60 days from the date of the occurrence of any of the events mentioned in that section, viz., dissolution, as in this case. The consequence of not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution as provided by section 63(1)(g) of the Bombay Act. In the circumstances, while it would be open to the authority to resort to the provisions of section 63(1)(g) of the Act, there is nothing in the Act to justify the issuance of the impugned assessment and penalty orders and the demand notice against the petitioner in respect of the amounts covered by the post-dissolution period. Under the Bombay Act, as it stands, that liability cannot be foisted on the petitioner by reason of his failure to bring to the notice of the concerned authority the fact of dissolution of the partnership. At the highest, he would be liable to prosecution as provided by section 63(1)(g) and that is all. It would be open to the authority to proceed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of this petition before exhausting the remedies provided by the Act. The short answer to this contention is, as has been laid down times out of number by the several High Courts as well as the Supreme Court, that it is open to a party to come directly by way of writ proceedings if pursuing the remedies available under the Act would be an exercise in futility. In this case, as several letters and interviews yielded no result whatsoever, the petitioner was justified in coming to the conclusion that the result, even after resorting to the remedies under the Act, would be a foregone conclusion. Hence, it was open to the petitioner to approach this Court directly by way of writ jurisdiction. In the circumstances, in respect of the post-di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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