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1980 DIGILAW 73 (KAR)

M. M. BELGAUMKAR v. COMMISSIONER OF COMMERCIAL TAXES IN MYSORE, BANGALORE

1980-03-12

G.N.SABHAHIT, M.K.SRINIVASA IYENGAR

body1980
SRINIVASA IYENGAR, J. ( 1 ) THIS is an appeal preferred against the order dated 6th December, 1974, dismissing the Writ petition No. 3572 of 1973. ( 2 ) THE petitioner is a firm represented by three major partners and another who is a minor admitted to the benefits of partnership. There was a partnership agreement entered into in the first instance by a deed dated 15th November, 1966, and as some of the partners and persons admitted to the benefits of partnership retired from the firm another deed was executed on 13th november, 1970. The firm had been granted a certificate of recognition under rule 25b of the karnataka Sales Tax Rules, 1957 (hereinafter referred to as the Rules), on the ground that the firm was a bona fide producer of products of village industry referred to in the Fifth Schedule and entitled to exemption from payment of sales tax on 19th May, 1967. After some of the partners retired and the business was continued by virtue of the deed dated 13th November, 1970, it appears an application was filed to continue the recognition and the Commissioner continued such recognition by his order dated 23rd June, 1971. ( 3 ) THE firm as constituted under the deed dated 13th November, 1970, consisted of Maniram kisandas Belgaumkar, Maniklal Maniram Belgaumkar, Hiralal Maniram Belgaumkar, Smt. Sundarabai, w/o Maniram Belgaumkar, and a minor, Master Shantilal S. Belgaumkar, had been admitted to the benefits of partnership. It transpires that Maniram Kisandas Belgaumkar voluntarily retired from the partnership on 6th November, 1972, and the business was continued by the remaining partners, and another deed of partnership was executed on 28th November, 1972. It transpires that the firm applied for the continuance of the recognition, but the commissioner issued an endorsement rejecting the prayer and also cancelling the earlier endorsement issued on 23rd June, 1971, continuing the recognition. This endorsement was dated 10th September, 1973. ( 4 ) CHALLENGING this action, the writ petition was filed contending that the action was illegal and unwarranted by the provisions of the Act and the Rules and praying for quashing of the same and to continue the recognition. This endorsement was dated 10th September, 1973. ( 4 ) CHALLENGING this action, the writ petition was filed contending that the action was illegal and unwarranted by the provisions of the Act and the Rules and praying for quashing of the same and to continue the recognition. ( 5 ) THE writ petition was dismissed on the ground that a new firm had been constituted and it had commenced to do business from 7th November, 1972, and it was not open to the partners who are common to the new and the old firm to contend that the two firms were one and the same and therefore could not depend upon the recognition issued earlier to claim exemption from payment of sales tax. ( 6 ) IT is contended that the firm has been registered under the Sales Tax Act as a dealer and this state of affairs continues and the certificate granted under rule 25b of the Rules would be valid until it is cancelled and could be cancelled only if the holder thereof ceased to be a bona fide producer or contravened any provisions of the Act or the Rules and no such contingency had occurred and the order of the Commissioner was unwarranted by law. It is argued that there was only a reconstitution of the firm and the old firm had continued and had at no time been dissolved and the recognition granted to the old firm would continue unless it became disentitled in terms of rule 25b (3 ). ( 7 ) IT is seen from the three deeds of partnership that there was an express provision that notwithstanding death or retirement of any partner, the firm shall not dissolve but shall continue its business as usual subject to the other provisions in the Partnership Act. Before the learned single Judge, a provision in the deed that the assets and liabilities of the firm had been taken over by the firm as constituted under the deed dated 28th November, 1972, was relied upon with a view to show that there was a continuity in the existence of the firm and its business. But the very clause was construed as not supporting the case of the petitioner but only destroying it. We are unable to agree with this conclusion. But the very clause was construed as not supporting the case of the petitioner but only destroying it. We are unable to agree with this conclusion. The particular clause only emphasises the fact that the integrity of the firm is unbroken and continues though there was a change in the members constituting the firm as one of them had retired and the remaining persons continued to be in the firm. ( 8 ) A firm can be a dealer and is entitled to be registered as such under the Act. In the application prescribed for obtaining registration as a dealer, namely, form No. 1, in the case of a firm, their names and addresses, etc. , have to be given. The certificate of registration also is granted on the basis of that application in form No. 2. Rule 10 of the Rules makes provision for the certificate of registration being amended in regard to any specific matters. The Act does not provide that if a partner retires a new registration certificate should be obtained or that the old registration certificate would not have any validity. Rule 41 makes provision for informing the authorities the discontinuance of the business or change of place of business and rule 40 also makes provision that if a partnership is dissolved a report should be made to the authority by every person who was a partner of the firm. From the recitals in the partnership deed, it is clear that there was no dissolution of the firm at any time. The registration as a dealer would continue and merely because there is change in the partnership, it does not mean that there is a dissolution of the firm as such and coming into existence of a new firm. The only effect of one of the partners retiring and a new partnership agreement having been entered into on 28th November, 1972, is that the firm had continued with a less number of partners than was the case earlier thereto. The provisions in rule 25b provide that the recognition could be cancelled only if the dealer ceased to be a bona fide producer of products of the village industry or contravened any provisions of the Act and the Rules. The provisions in rule 25b provide that the recognition could be cancelled only if the dealer ceased to be a bona fide producer of products of the village industry or contravened any provisions of the Act and the Rules. No such circumstance being in existence in the instant case, the commissioner was not justified in cancelling the recognition that had been granted by the endorsement dated 23rd June, 1971. In our opinion, the appellant was entitled to the reliefs as claimed by him. Accordingly the writ appeal is allowed. The order of the Commissioner of Commercial Taxes in mysore, Bangalore, dated 10th September, 1973, bearing No. Recg/6909/70-71 is quashed and a direction shall issue that he shall continue the recognition under rule 25b of the Rules which had been granted by the endorsement dated 23rd June, 1971. ( 9 ) PARTIES shall bear their own costs.