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TMI Blog1995 (11) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... e jointly and severally liable for such payment. The question is as to whether there can be a legitimate resort to the said provision of section 21 of the State Act in the matter of recovery of sales tax which is clearly and purely a liability under the Central Sales Tax Act, 1956. 3.. The partnership in question is M/s. A. Pareed Pillai Brothers. It had three brothers as partners, namely, A. Pareed Pillai, A. Mohammed Pillai and A. Khader Pillai. For the assessment years 1958-59 up to 1962-63 the firm was doing business in coconut oil, predominantly by way of inter-State sales and there fore assessable to the tax under the provisions of the Central Sales Tax Act, 1956. The tax liability of the firm was assessed. The assessment was both under the State Act which was then the Travancore-Cochin General Sales Tax Act, 1956 and the Central Act. There is no dispute that the partnership firm was the registered dealer and the assessment liabilities under the then State Act was Rs. 1,124.29 on the one hand and under the Central Sales Tax Act it was Rs. 12,71,591.21. There was one additional liability of Rs. 1,680 due to the firm under the provisions of the Motor Vehicles Tax Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala v. Pareed Pillai [1991] 83 STC 377 (Ker). court has therefore to be reversed, it being vitiated by non-advertence to, and non-application of, the well-settled principles of law." 8.. The present petitioner was not a party to the proceedings of the said suit and therefore the present petition was separated for being dealt with independently. 9.. Even in this petition in paragraph 6 it is averred that respondents Nos. 2 and 3 did not take any further steps in furtherance or continuance of the sale notice, petitioner's brother Mohammed Pillai (the third brother) filed O.S. No. 485 of 1984 against respondents Nos. 1 and 2 for an injunction which is decreed by the trial court and in regard to which the appeal of the respondents, being Appeal No. 181 of 1987 is pending on the file of the Sub-Court, Parur. However, as a result of the decision of the second appeal, in view of the sale notice dated August 9, 1991, the present petition is filed, to contend that the recovery sought to be initiated is not possible in law in view of the fact that there cannot be any justifiable resort to section 21 of the Kerala General Sales Tax Act, 1963, in the matter of recovery by the State authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing get a safeguard by virtue of the provisions of section 61 of the State Act, by reason of the deeming provision in the matters dealing with the provisions of repeal under section 61 of the Act. In other words, the learned counsel urges that if under the existing law dealing with the question of liability, the partners cannot be made liable, and additionally even under the existing law relating to the liability-the Central Sales Tax Act, 1956, there is no provision for making the partner liable, in the matter of recovery resort to section 21 of the Kerala General Sales Tax Act, 1963, would be utterly unjustifiable in law. 14.. The learned counsel submitted that in the matter of taxation, what is relevant is the law relating to the liability during the period of assessment. In fact even the situation of law during the time of assessment in question does not empower enhancement of assessment at any future time thereafter. 15.. In this context submissions are made relating to the provisions of section 9 of the Central Sales Tax Act, 1956, relating to levy and collection of tax and penalties referable to the liability under the Central Sales Tax Act, 1956. 16.. To appreciate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1960-61. The matter was relating to five transactions which were inter-State sales as against remaining three intra-State sales. The Sales Tax Officer held two out of five transactions as inter-State sales and the matter went up in appeal to the Appellate Assistant Commissioner who held that all the five transactions were inter-State sales. However, the appellate authority rejected the contention of the assessee that the assessee was entitled to exemption and in the process enhanced the tax levied on the three transactions on the ground that the assessee had failed to produce the required "C" certificates. It is in this context the contentions were taken up for examination. It is observed in the context that the position was beyond dispute that the appellate authority could not enhance acting under the appellate powers because no such powers were available under the Madras General Sales Tax Act, 1939, for the purpose of dealing with the question of powers of the appellate authority. In other words, the power in question was not available in the State statute and the question was the question of assessment in question. Therefore in regard to the question of assessment, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of recovery, a plain reading of the section would have to be appreciated in regard to the function of the State authority under the Sales Tax Act as co-relative with function in the process of administration of a local provision. In my judgment the observations of the Supreme Court would have to be appreciated in the context of the situation and the context of the situation is the question as to whether the appellate authority could have enhanced the tax in regard to which the provision was absent with regard to the process of assessment. As against the said position in the matter of recovery which is undertaken years thereafter, the law relating to the recovery will have to be considered for application by the State authorities under the general sales tax law of the State. 21.. Therefore, apart from the present petitioner having sailed in the same boat as that of the petitioner in O.P. No. 9516 of 1991, it cannot be said that resort to the provisions of section 21 of the Kerala General Sales Tax Act would not be available in the matter of recovery of the tax due to the partnership firm from the partners as discussed above. 22.. Lastly, it stares in the face of the record that ..... 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