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TMI Blog2002 (7) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the liability to pay tax by the petitioner to the Commercial Tax Department. 3.. Under form F.L. 24 retail licence for the sale of all kinds of Indian liquors, foreign liquors and beer was issued by the Excise Superintendent, Adilabad District, on payment of fee of Rs. 28,750 under License No. 4/92-97 in the name of M/s. Sri Sai Wines, Luxettipet, being the licensee. The licence, so applied, is in the name of M/s. Sri Sai Wines. In the licence form, the person who obtained the licence is shown as V. Suresh, son of Ramakoteshwar r/o. Luxettipet. In the licence, the premises bearing No. 5-78 and its boundaries are also shown. The licence was issued on September 29, 1992 for a period of five years, i.e., till the end of the excise year 1997. 4.. It appears, according to the material placed before us, the said licensee fell in arrears of sales tax under the Andhra Pradesh General Sales Tax Act, 1957, for the assessment year 1993-94 to the tune of Rs. 20,554 and for the assessment year 1994-95 to the tune of Rs. 90,730 totalling to Rs. 1,11,284. 5.. In order to recover the arrears of tax, the third respondent in the writ petition, issued a notice in Rc. G.F. No. 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash was the guarantor for the A.P.G.S.T. licence. The petitioner states that he is surprised as to how the third respondent could demand amount from him when the licensee is M/s. Sri Sai Wines, the proprietor being N. Suresh, son of Ramakoteswar of Luxettipet. The petitioner also states that without making any enquiry, the third respondent issued the impugned notice demanding certain sums as if he is due to the department. He pleaded, in the circumstances, he invoked the jurisdiction under article 226 of the Constitution of India seeking appropriate direction as indicated above. 8.. The writ petition fell for consideration before a learned division Bench of this Court on August 17, 2001 and in W.P.M.P. No. 23008 of 2001 the learned division Bench granted interim suspension of the notice. The matter, thereafter, fell before another learned division Bench for consideration and the learned division Bench granted time to the Special Government Pleader for Taxes, for filing counter on behalf of the respondents and placing the entire record enabling this Court to pass appropriate orders. Thus the matter has fallen for consideration today. The Government Pleader as required, has placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the business in addition to the petitioner's active involvement in the firm. According to the respondents, as the liability of a partner is unlimited, joint and several, the petitioner being the first partner having the highest shares, a notice was issued to him on June 29, 2001 demanding to pay the arrears of tax. The third respondent has further clarified that a reply to the notice got issued by the petitioner, has been sent to him under registered post with acknowledgement due. 12.. In the light of this counter, we desired to verify the record relating to the arrears of tax from M/s. Sri Sai Wines. The learned Special Government Pleader for Taxes has placed few papers kept in a brown colour paper folder informing the court that these papers are the records. This Court collected the same to verify as to whether any enquiry has been made by the third respondent to connect the petitioner with M/s. Sri Sai Wines or whether the third respondent obtained any registered document which indicates that the firm in question is a registered firm and that the petitioner is one of the partners of the said firm. We have verified the record placed by the Government Pleader and those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1993-94 the writ petitioner and few others joined the partnership firm and they are doing business of selling liquor. 15.. From the record placed before us, another letter written to the third respondent by Sri V. Ramakoteshwar, is also found by us at page No. 5 of the file and we have marked this letter at page No. 5 as exhibit C.3. This letter/statement said to have been given to the 3rd respondent by the proprietor of M/s. Sri Sai Wines indicates that on October 25, 2000 an amount of Rs. 10,000 was paid to the department and the remaining tax relating to his share would be paid by October 30, 2000. It is also indicated in exhibit C.3 that the writ petitioner B. Sudhakar, contractor, Luxettipet, is due to pay the 50 per cent of the liability and this Ramakoteshwar requested the third respondent to recover 50 per cent of the tax from the petitioner. 16.. The sole contention raised on behalf of the respondents to fasten the liability on the petitioner is based on the version that M/s. Sri Sai Wines is a partnership firm and was floated by several persons and there was an understanding between them and that the petitioner being one of the partners, having 16 per cent of shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit filed by the third respondent, nowhere it is stated that an enquiry has been made by the department giving an opportunity to the petitioner to set forth his case and in that enquiry it was established that the petitioner is a partner of M/s. Sri Sai Wines. There is no record placed before us probabilising the association of the petitioner with M/s. Sri Sai Wines, except the documents marked as exhibits C.1 to C.3, which we have discussed elaborately in the foregoing paras. From these documents it is difficult for us to assume that the petitioner is associated with M/s. Sri Sai Wines and is also liable under the terms of the partnership, to pay the amounts due to the Government by M/s. Sri Sai Wines. Form F.L. 24 retail licence issued by the department is out and out in the name of M/s. Sri Sai Wines of Luxettipet and Sri V. Suresh, son of Ramakoteshwar is shown as proprietor of the firm, who obtained license No. 4/92-97, dated September 29, 1992 from the Excise Superintendent, Adilabad District, for doing business in selling wines on payment of Rs. 28,750 towards licence fee. In the distraint order, which is at page No. 3 of the material record filed by the Special Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the writ petition is allowed. 21.. In normal circumstances, we would have allowed the writ petition without imposing any costs. However, the manner in which the third respondent has initiated the proceedings and the demand made against the petitioner for recovery of arrears without giving any opportunity to the petitioner or without there being any documentary evidence satisfying himself, which has led the petitioner to approach this Court engaging an advocate in this Court resulting in expenditure, apart from causing mental agony to him, would warrant imposing costs on the third respondent. For all these reasons, we impose exemplary costs of Rs. 15,000 on the third respondent, which shall be recovered from him. We direct this amount of Rs. 15,000 shall be recovered from the salary of the third respondent in three equal monthly instalments, i.e., Rs. 5,000 for each month from the monthly salary of February, March, and April, 2002 payable in the months of March, April and May, 2002 respectively and the same shall be paid to the petitioner by way of demand drafts. The Commissioner, Commercial Taxes Department, Government of A.P. shall issue necessary instructions to all co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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