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1988 DIGILAW 292 (KER)

OMAGA TYRE RE-Trading CO. v. SALES TAX OFFICER

1988-07-05

T.KOCHU THOMMEN

body1988
Judgment :- 1. Ext. P10 order was made by the District Collector pursuant to a direction of this Court in O.P. No. 2185 of 1984. This order is purported to have been made under S.24 of the Kerala Revenue Recovery Act, 1968. That Section reads: "Attachment of partnership property:- (1) Where the property to be attached consists of an interest of the defaulter, being a partner, in the partnership property, the Collector or the authorised officer may make an order charging the share of such partner in the partnership property and profits with payment of the amount due under the written demand and may, by the same or subsequent order, appoint a receiver of the share of such partner in the profits, whether already declared or accruing, and of any other money which may become due to him in respect of the Partnership, and direct accounts and enquiries and make an order for the sale of such interest or such other order as the circumstances of the case may require. (2) The other partner or partners shall be at liberty at anytime to redeem the interest charged or, in the case of a sale being directed, to purchase the same:" Sub-Section (1) of this Section which provides for the attachment of the interest of a partner has two aspects. The Collector may make an order charging the share of the partner in the partnership property and profits with payment of the amount due. This is the first part. To do this the Collector has to determine what is the share of the partner. Having determined that, that share shall remain charged with the amount due. By the impugned order, in the absence of any evidence, the Collector justifiably made an estimate and concluded that one-third of the investment shall remain charged. That was the share determined by the Collector and he ordered that that share shall remain charged. 2. The second aspect of the sub-section is that, having ordered a charge to the extent of the share of the defaulter, the Collector may, by the same order or by a subsequent order, appoint a receiver of that share. Profits of the firm, whether accrued or accruing, and any other money becoming due to the firm will be subject to the charge on the share. Profits of the firm, whether accrued or accruing, and any other money becoming due to the firm will be subject to the charge on the share. The receiver of the share will be the receiver of the money to the extent that it is due to the partner in respect of bis share. The account of the firm can be examined and the interest of the defaulter, which is the subject matter of the charge, can be sold and the proceeds can be adjusted against the amount in default. This means that the receiver is a receiver of only the share of the defaulting partner in the profits of the firm and monies becoming due to the firm. It is only by a sale of the charged interest in the firm can the amounts be utilised for payment of the arrears. 3. In the present case, by the impugned order, the Collector has acted according to the first limb of the sub-section. But he has yet to act according to the second limb of the sub-section. No receiver has been appointed. The assets of a running firm are the assets, not of any partner, but of the firm as such, and are, therefore, not liable to be attached and sold as a means of recovery of public revenue. What the Section contemplates is the attachment of the interest of the partner in the partnership property, and the consequent charge on his share. What the Collector can order to sell pursuant to the attachment of the interest and the consequent charge on the share is not the assets of the firm, but the interest of the partner in those assets and the monies due to the firm. Instead of sale of the interest, the Section permits the Collector to make any other order as the circumstances require, but such order has to be consistent with the nature and extent of the interest. All this is. of course, subject to the right of the other partners to redeem the interest charged as provided in sub-section (2) of S.24. 4. In the circumstances, the portion of the last paragraph of the District Collector's order attaching the movables belonging to the firm is invalid. It is set aside. All this is. of course, subject to the right of the other partners to redeem the interest charged as provided in sub-section (2) of S.24. 4. In the circumstances, the portion of the last paragraph of the District Collector's order attaching the movables belonging to the firm is invalid. It is set aside. It is open to the Collector to act according to the Section, as I have stated above, that is, by the appointment of a receiver and by sale of the interest of the partner in the assets of the firm. The movables already in the custody of the Collector shall be retained by the receiver to safeguard the charge to the extent of one-third interest in those movables. But such possession of the receiver shall be on behalf of the other partners to the extent of the remaining shares. 5. The Original Petition is allowed in the above terms. No costs.