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TMI Blog1997 (8) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... he legal representatives before initiating recovery proceedings against them? The questions arise in the following background: 2.. M/s. Prabhath Engineering, Bangalore, was a partnership concern for the assessment period 1977-78 to 1981-82. For the period 1982-83 and 198384, the said concern was a sole proprietory concern of which Mr. K.V.V. Setty, the husband of the petitioner in the present writ petition was the sole proprietor. Assessment proceedings for the period 1977-78 to 1982-83 were completed in which the deceased Sri Setty had participated leading to the determination of a total tax liability of Rs. 1,39,544.42. For the assessment period 1983-84, however, the deceased assessee was assessed ex parte on best judgment basis on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eft behind by the deceased assessee and that so long as the assessing authority did not determine the extent of the estate that had fallen in the hands of the legal representatives of the deceased assessee, it was not possible for the former to initiate or effect any recovery from them. 3.. I have given my anxious consideration to the submissions made at the Bar. Section 16 of the Act provides that where a dealer dies, his executor, administrator or other legal representative shall be deemed to be the dealer for the purposes of the Act and the provisions of the Act shall apply to him in respect of the business of the deceased dealer, provided that, in respect of any tax, penalty or fee assessed as payable by any such dealer or any tax, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of being heard in the matter by the authority concerned. In the absence of such determination it is not permissible for the assessing authority or the agency to whom the recovery proceedings are transferred to initiate proceedings for recovery of the outstanding tax dues against any one of the legal representatives. Any reference made by the assessing authority for effecting recovery from any one of such legal representatives is bound to be tentative in nature. To the same effect is a Division Bench decision of this Court in H.R. Jayadeva v. Assistant Commercial Tax Officer, Hospet [1975] 36 STC 222 where this Court held that if the assessment had been made when the deceased assessee was alive, it was the duty of the assessing autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner were minors at the time of the filing of these petitions but have since attained majority. The assessing authority has not issued any notice determining the extent of the estate left behind by the deceased and if the same had been shared by them the extent of the estate that had fallen to the share of each before initiating recovery proceedings against the petitioner. Such proceedings as observed earlier were maintainable only to the extent of the estate that is inherited by the legal representatives from the deceased. The determination of the legal representatives and the extent of the estate that has fallen to their hands therefore assumes great significance. In the absence of such a determination, it was not permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the institution of the recovery proceedings. Although Government Pleader appearing for the respondent argued that for the assessment period 1983-84 a demand notice had been served upon her by affixture on the last known place of business, it appears that the business premises of the deceased assessee had been put to auction by the Karnataka State Financial Corporation in the year 1983 itself for recovery of the amount outstanding against the assessee. Be that as it may, since a demand notice could be validly issued against the legal representative only after the assessing authority had determined the extent of any such legal representative s liability by reference to the estate that had fallen in his or her hands, any demand raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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