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TMI Blog1991 (10) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... e was served on two partners, but they did not respond. The assessing authority therefore assessed the firm on a total and taxable turnover of Rs. 88,568.21 and Rs. 73,132.46 for the assessment year 1974-75, which order was passed on July, 15, 1976. A penalty of Rs. 639 was imposed under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act"). 2.. Against the said two orders of assessments the petitioner herein namely, N.N. Subramaniam filed two appeals before the Appellate Assistant Commissioner. There was a delay of 2,428 days in filing the appeal against the assessment order dated February 21, 1975 (1973-74) and a delay of 1883 days in filing the appeal against the assessment order dated July 15, 1976 (1974-75). The petitioner filed two petitions, M.P. Nos. 262 and 263 of 1981, for condonation of the delay in filing the appeals. The appellate authority dismissed these petitions and rejected the appeals as time barred. Second appeals were therefore filed before the Tamil Nadu Sales Tax Appellate Tribunal and they were dismissed by the Tribunal on September 4, 1982. These two tax revision cases are against the said common order of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding such dissolution, be jointly and severally liable for the payment of tax, penalty or other amount payable under the Act by the firm, whether the assessment was made prior to or after such dissolution. Rule 52(1) of the TNGST Rules provides for manner of service of any notice, summons or order under the Act. Rule 52(2) of the TNGST Rules with which we are concerned is as follows: "Where any Hindu undivided family, firm or other association of persons is partitioned, dissolved or discontinued, notice, summons or orders issued under the Act or these Rules may be served on any member of the Hindu undivided family, any person who was a partner (not being a minor) or member of the association, as the case may be, immediately before such partition, dissolution or discontinuance." 5.. We will now turn to the factual findings regarding service of notice on the firm and/or on the erstwhile partners of the firm. The firm, M/s. Ramakrishna and Company, had three partners, namely, the petitioner N.N. Subramaniam, one R. Angamuthu and one K. Jayaraman. It was dissolved on December 10, 1974. For the assessment year 1973-74 notice had been served on Angamuthu for the production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m income-tax is payable. Section 30(1) provides for the appeal to the Appellate Assistant Commissioner against an order of assessment. The proviso to section 30(1) of the Act is as follows: "Provided further that where the partners of a firm are individually assessable on their shares in the total income of the firm, any such partner may appeal to the Appellate Assistant Commissioner against any order of an Income-tax Officer determining the amount of the total income or the loss of the firm or the apportionment thereof between the several partners, but in respect of matters which are determined by such order may not appeal against the assessment of his own total income:" Section 44 of the Act provides for assessment of the erstwhile partners after dissolution and their joint and several liability for the tax payable under the Act. Section 25(6) equivalent to the present section 284 is more or less akin to rule 52(2) of the present Tamil Nadu General Sales Tax Rules. Section 247 of the Income-tax Act, 1961, equivalent to second proviso to section 30(1) of the Income-tax Act, 1922, is a provision which requires special attention and we have already extracted the same. With this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even necessary to go to that extent because, admittedly, no other partner had filed an appeal and the only appeal against the assessment of the firm had been preferred by the petitioner herein. The only question before us is whether this appeal is barred by limitation or not. 7.. In Chief Inspector of Mines v. Karam Chand Thapar AIR 1961 SC 838; [1962] 1 SCR 9 the question related to the prosecution of the directors of a company for offences under section 73 and 74 of the Mines Act, 1952. Section 76 of the Mines Act, 1952, provides for the prosecution of "any of the directors". The contention was that prosecution of all the directors was not permitted under the Act. It is in this context that the Supreme Court held that the expression "any of the directors" meant "everyone of the directors". The Supreme Court itself pointed out that the intention of the Legislature had to be decided by the courts on a consideration of the context in which the words appear and in particular, the scheme and object of the legislation. We do not think that the context in which rule 52(2) of the TNGST Rules, uses the words that the assessment orders may be served on "any person who was a partner" sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1922. It was also held that the regular procedure for the purpose of assessment was applicable in respect of a dissolved association also, as if it had continued. What is more, the Apex Court laid down that a notice to the appropriate person under the Act would be sufficient to enable the authority to assess the dissolved association. The plea of the other member who had not been served personally that he could not be held to be liable to pay the tax assessed, failed. In a K.L. Parvathamma v. Income-tax Officer [1974] 93 ITR 138 (Mys) an assessment was made on a dissolved firm after notice to one of the quondam partners. It was argued that the words "any person" found in sub-section (2) of section 283 of the Income-tax Act, 1961, should be construed to mean "all persons" who were the partners of the firm. It was held that the notice in such a case could be served on any one member of the firm. The contention that it should be served on all the members was rejected. In Indira Chemical Agency v. Commissioner of Income-tax [1979] 119 ITR 569 (Mad.) the very same section 283(2) of the Income-tax Act, 1961, was interpreted to mean that service on one of the members of the dissolve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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