9911796707
TMI Blog1985 (10) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... pa Ghodke and Ramachandra son of Fakirappa Ghodke, who died on 6th September, 1974, and 16th February, 1974, respectively. Though it is asserted in the petition that those two partners constituted the partnership firm, according to the statement of objections, it consisted of three partners, viz., Fakirappa Devendrappa Ghodke, Basappa Devendrappa Ghodke and Gangappa Mallappa Ghodke. 3.. By order dated 14th August, 1985, 1 recalled the order dictated earlier on 16th July, 1985, and the learned Government Pleader was directed to explain this inconsistency as to the constitution of partnership. On further hearing and on a perusal of the records produced by the Government Pleader, it was seen that Gangappa Mallappa Ghodke and Ramachandra Faki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i for Rs. 60,000. The said sum was deposited by the auction purchaser and by order dated 1st October, 1981, the auction purchaser has been impleaded as a party to this writ petition. This Court also stayed the confirmation of the sale in respect of the said property pending disposal of the writ petition. A further direction was issued to deposit Rs. 60,000 in a nationalised bank for a period of one year in the first instance subject to renewal periodically till the writ petition is finally disposed of. The petitioner's contention in this writ petition is that after the death of Ramachandrappa Fakirappa Ghodke on 16th February, 1974, no notice was issued under section 13 of the Karnataka Sales Tax Act to the L. Rs. of the deceased partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commercial Tax Officer, Gangavali [1971] 28 STC 306 (Mys.) this Court has held that recovery proceedings under section 13(3)(b) of the Mysore Sales Tax Act, 1957, should be taken against all the legal heirs of the deceased assessee. The deceased assessee had left behind him three sons, two daughters and a widow in that case. For recovering the tax due from the deceased assessee, notices of demand were served only on three sons of the deceased and thereafter recovery was initiated by filing application under section 13(3)(b) of the Act before the Magistrate who issued warrant of attachment of the movables of all the sons. Dealing with section 16 of the Act it was held that the liability to pay the tax due from the deceased assessee is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother Division Bench decision of this Court reported in S.M. Suligavi v. judicial Magistrate, Court First Class [1980] 46 STC 335; [1980] 2 Kar LJ 141, this Court has laid down that the recovery proceedings taken against an ex-partner without service of notice of demand on him under section 13 of the Karnataka Sales Tax Act are not lawful. Elaborate rules are prescribed under the Act providing for notice to the assessee in default. Part V-B of the Rules prescribes the procedure for recovery of tax. Certificate of recovery is issued as required under rule 38-D of the Rules. "Certificate" means certificate received by the Tax Recovery Officer under rule 38-D. "Defaulter" is defined under rule 38-C and means the assessee or dealer or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tax Recovery Officer in form No. 41 and the proclamation of sale issued in form No. 47, the names of all the legal representatives of R.F. Ghodke are mentioned. At the same time it is not disputed that no notices as required under section 13 of the Act were issued to the widow and her sons before the property was brought to sale. Since I have come to the conclusion that the entire proceedings for recovery, which terminated in the auction sale held on 11th October, 1979, are illegal, the said sale has to be set aside. In the result, the writ petition is allowed and the sale conducted by the second respondent in respect of item 2 in the schedule to the proclamation of sale, i.e., CTS No. 3527, Ward No. 1 in Maratha Gally, Hubli, is set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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