A. v. RAJASHEKARAPPA VS COMMERCIAL TAX OFFICER, HUBLI
1974-02-08
VENKATACHALAIAH
body1974
DigiLaw.ai
( 1 ) THREE orders of assessment under the provisions of the Central Sales tax Act were passed on a dissolved firm which was carrying on business under the name and style ' Makanur Malleshappa A. Onkarappa and Co in respect of the assessment years 1960-61, 1961-62 and 1962-63. The petitioner is an ex-partner of the said firm. The said orders of assessment were challenged before this Court in three writ petitions, WPs. 1252, 1253 and 1256 of 1967, on the 'ground that there was no provision in the Karnataka sales Tax Act the provisions of which had been adopted by the Parliament in sc far as the procedure for levy and collection o,f Central Sales tax was concerned, for assessing and collecting the Central Sales Tax from a dissolved firm, and, therefore the assessments were bad and were liable to be quashed. The said plea was accepted by this Court and the orders of assessment were quashed. Later on, the Central Sales Tax Act was amended by Central Act 28 of 1969. By S. 9 of the said amending Act, all orders of assessment passed in respect of the Central Sales Tax which had been passed before 9-6-1969 were validated. Some time thereafter, the Karnataka sales Tax Act was amended by Act 5 of 1972 substituting a new section for S. 15 of that Act authorising the passing of an order of assessment on a. dissolved firm with effect from the date on which the principal Act i. e Kamataka Sales Tax Act came into force. Thereafter on 11-1-1973 the Commercial Tax Officer issued notices to the petitioner calling upon him to pay the Central Sales. Tax as per the orders of assessment. Aggrieved by the said notices, the petitioner has filed these petitions. ( 2 ) SUB-SEC, ( 2) of Section 15, after the amendment, reads as follows : when a firm liable to pay the tax or penalty is dissolved, the assessment of the tax and imposition of penalty shall be made as if no dissolution of the firm had taken place and every person who was at the time of dissolution a partner of the firm and the legal representative of any such person who is deceased, shall be jointly and severally liable to pay the tax or penalty assessed or imposed.
( 3 ) THE new S. 15 was given retrospective effect from the date on which the the principal Act came into force viz. , 1-10,1957. Hence it has to be held that it must be deemed to have been in force on the dates on which the orders of assessment for the years. 1960-61, 1961-62 and 1962-63 were passed. In view of the provision relating to validation of assessments found in Central Act 28 of 1969 and the amendment of Sec. 15 of the Karnataka sales Tax Act 1957 with retrospective effect by Karnataka Act 5 of 1972 the orders of assessment passed in respect of the years 1960-61, 1961-62 and 1962 -. 63 which were set aside in WPs. 1252, 1253 and ,1256 of 1967 revived and became operative as the ground on which they had been set aside no longer existed. Consequently all the persons who were partners of the dissolved firm at the time of dissolution became liable to pay the sum due under the. orders of assessment. The sbove view is supported by the, Full bench decision of this Court in Gill and Co. (P) Ltd. v. CTO 31 STC. 336- (l973) 1 Mys. L. J. 45-1973 Kar. L. J. 3, FB. . According to the above decision, there is no necessity to pass any fresh orders of assessment against, the ex-partner of the dissolved firm in order to recover from him the tax held to be due under the orders of assessment referred to above. ( 4 ) SRI K. Srinivasan, learned Counsel for the petitioner, however, contended that the substitution of Sec. 15 of the Karnataka, Sales Tax Act by a new section in the year 1972 by the Karnataka State Legislature cannot ba relied upon by the State Government in the instant case because the new Sec. 15 was not on the statute book either an the date when Sec. 9 of the Central Sales Tax Act by which the Parliament adopted the procedure for levy and collection of sales tax found in the State Act for the purpose of levy and collection of Central Sales Tax was enacted in the year 1956' or on the date when the said section was substituted by a new section by centra] Act 38 of 1969.
Elaborating his submission, Sri Srinivasan argued that the Parliament must be deemed to have adopted when it enacted S. 9 (2) of the Central Sales Tax Act in the year 1956, only those procedural provisions available in the general sales tax law of the State as they stood at the commencement of the Central Sales Tax Act and must be deemed to have adopted only those procedural provisions in the, general sales tax law of the State which were in existence when it amended S. 9 (2) of the Central sales Tax Act by 28 of 1969 and any future amendment to the general sales tax law of the State made by the State Legislature though with retrospective effect could not be considered as having been adopted by the parliament. According to Mr. Srinivasan, the acceptance f the contention of the State Government that even the future amendments made by the State Legislature must be deemed to have been adopted by the Parliament, would lead to the upholding of an Act of Parliament amounting to abdication of its essential legislative powers. He, therefore, urged that the ground on which the said orders of assessment were set aside by this court, namely, absence of power to assess a dissolved firm continued to. persist notwithstanding the amendment of S. 15 of the State Act. In this connection pay attention was drawn by Mr. Srinivasan to the decision of the Supreme Court in State of Tamil Nadu v. K. A, Ramudu Cehttiar and co. 31 STC. 470. in which the Supreme Court, while referring to a similar contention urged before it, left the question undecided. But so far as this Court is concerned I arn concluded by the decision of a Divn. Bench of this Court in Mysore Elecl. Indsusts. Ltd. v. CTO 27 STC. 559- (l970) 2 Mys. L. J. 263. in which it was observed that by enacting S. 9 of the Central Sales Tax Act, the Parliament not merely adopted the procedural part of the general sales tax laws of the States as in force on the date on which the said provision was enacted but also all future amendments made to that part from time to time by the appropriate legislatures.
It was also observed in the said case that by adopting such future amendments which related to procedural matters only the parliament had not abdicated its essential legislative function. In view of the decision of this Court in Mysore Electrical Industries Ltd. (3) I am of the opinion that Sec. 15 (2) which authorises the passing of an order of assessment on a dissolved firm and which has been given retrospective effeect must be deemed as being available to the assessing authority when the orders of assessment were passed. I, therefore hold that there has been legal validation of the assessment parsed in respect of the assessment years 19619-61, 1961-62 and 1962-63 which are questioned here and that they can be enforced against the petitioner without passing any fresh orders in that regard. ( 5 ) IN the result, these petitions fail and they are dismissed There will be no order as to costs. --- *** --- .