9911796707
TMI Blog1979 (7) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Taxes (Appeals II), Jaipur, by Shri Badri Prasad, one of the partners, on behalf of the firm which was partly allowed by the order dated 19th November, 1971. A revision petition preferred to the Board of Revenue was also partly allowed by a learned single Member of the Board of Revenue by his order dated 17th January, 1974. A special appeal preferred by the assessing authority before a Division Bench of the Board of Revenue was dismissed on 11th April, 1975. Thereafter, the assessing authority filed an application for making a reference before the Board of Revenue under section 15(1) of the Act, but the same was not disposed of within the statutory period and so the present reference application under section 15(3A) has been presented before this Court by the assessing authority. In this case, an objection has been raised on behalf of the ex-partners of the firm that the aforesaid firm was dissolved with effect from 1st April, 1967, and in support of this submission a photostat copy of the order of assessment passed by the assessing authority on 11th February, 1974, in respect of the assessment years 1966-67 and 1967-68, has been produced, wherein it has been held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a statutory provision permitting the assessment of a dissolved firm. There could be no assessment of a firm after its dissolution, as it ceases to have any legal existence. It was also held in the aforesaid case that there can be no distinction between an assessment made on a firm under a proceeding initiated before its dissolution and one made in a proceeding initiated after the dissolution of the firm. The view which their Lordships of the Supreme Court took was that unless there was an express provision, it could not be held by necessary intendment that an assessment could be made on a firm which has lost its character as an assessable entity and if the firm was dissolved before the order of assessment was passed yet there could be no order of assessment after the dissolution of the firm. The aforesaid decision in the Jullundur Vegetables Syndicate's case[1966] 17 S.T.C. 326 (S.C.). was followed by their Lordships of the Supreme Court in Khushi Ram Behari Lal Co. v. Assessing Authority, Sangrur[1967] 19 S.T.C. 381 (S.C.)., and in Additional Tahsildar, Raipur v. Gendalal[1968] 21 S.T.C. 263 (S.C.). In the last mentioned case, Ramaswami, J., speaking for the court, observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness nor a provision imposing a joint and several liability on the dealer and its partners for the payment of tax, penalty or any amount due under the Act or the Rules made thereunder, includes within its ambit a case of the dissolution of a firm or the assessment of a dissolved firm. (e) The court cannot proceed to make good the deficiencies in a fiscal statute and while interpreting its provisions the court is bound to interpret the statute as it stands and the language of the taxing law cannot be strained in order to hold a subject liable to tax. In the Murarilal Mahabir Prasad's case[1976] 37 S.T.C. 77 (S.C.)., their Lordships of the Supreme Court distinguished the Jullundur Vegetables Syndicate's case[1966] 17 S.T.C. 326 (S.C.). on account of the specific provisions contained in the Bombay Sales Tax Act, 1953, and in the Bombay Sales Tax Act, 1959. Sections 5(3), 15(1) and 26(1), (2) and (3) of the Bombay Act of 1953 were relied upon by their Lordships of the Supreme Court to come to the conclusion that a dissolved firm could be assessed in respect of its pre-dissolution turnover under the Bombay Act. Under sub-section (3) of section 5 of the Bombay Act, it was observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in section 6A and provisional registration as contained in section 6B. So far as section 15(1) of the Bombay Act is concerned, it relates to reassessment and there is a corresponding provision in the Rajasthan Act contained in section 12(1), but reassessment can only be made in respect of a dealer whose income has escaped in part or whole. In case a dissolved firm could not be assessed after its dissolution, the question of reassessment thereof could not arise. The learned counsel, appearing for the assessing authority, drew our attention to the provisions of section 9(3) of the Act and argued that they are similar to the provisions of section 26(3) of the Bombay Act. So far as the provisions of clause (a) of sub-section (3) of section 9 of the Act are concerned, they are no doubt similar to section 26(3) of the Bombay Act but they are limited to the extent of the liability to pay tax on the goods allotted to any partner on dissolution of such firm, as if the goods were sold to such partner. This provision only envisages assessment of the dissolved firm for the limited purpose inasmuch as the goods allotted at the time of dissolution to a partner of the dissolved firm shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under the Bombay Act the partners of a dissolved firm are made jointly and severally liable to pay tax, to the extent to which he is liable under section 18 of that Act up to the time of dissolution of the firm, whether such tax has been assessed before such dissolution but remains unpaid or is assessed after such dissolution. On the other hand, under the Rajasthan Act, the liability of the expartners of the dissolved firm are joint and several, not only for payment of tax but for assessment also and there is no such provision which might envisage the assessment of a dissolved firm. On the other hand, the provisions of clause (b) of sub-section (3) of section 9 make it clear that after the dissolution of a firm, the liability for assessment and payment of tax is to continue as joint and several upon the partners thereof. Thus, the partners of the dissolved firm are to be assessed to tax after its dissolution and not the dissolved firm itself. The two decisions of their Lordships of the Supreme Court in the Jullundur Vegetables Syndicate's case[1966] 17 S.T.C. 326 (S.C.). and the Murarilal Mahabir Prasad's case[1976] 37 S.T.C. 77 (S.C.). were referred to by the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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