ABU Vs. STO BADAGARA
LAWS(KER)-1968-9-14
HIGH COURT OF KERALA
Decided on September 24,1968

ABU Appellant
VERSUS
STO, BADAGARA Respondents

JUDGEMENT

- (1.) A person who is sought to be assessed to sales tax for 1959-60 under the General Sales Tax Act of 1125 seeks to quash Ext. P5, a preassessment notice issued by the Sales Tax Officer, Badagara.
(2.) The petitioner and five others constituted a firm under the firm name Madeena Oil Mills and Industries; and the firm was assessed to sales tax for 1959-60 in February 1961. The turnover was worked out from the quantity of electric current consumed by the mill for crushing copra. The firm filed O.P. No. 1176 of 1961 questioning the correctness of this; and the writ petition was allowed by this Court (vide Ext. P2) holding that the basis adopted was wrong and that the Sales Tax Officer should have effected a test crushing to find out the quantity of electric energy consumed for crushin one ton of copra. Though the petition was disposed of on 28th June 1962, the Sales Tax Officer did not take any steps for effecting a reassessment until he issued Ext. P3 on 5th September 1966 calling upon the firm to remit Rs. 80/- towards the expenses of a test crushing. The petitioner replied under Ext. P4 that a test crushing after such long lapse of time would not give a correct idea regarding the consumption of electric current during the relevant year (1959-60), since the machinery became very old. He also stated that in December 1963 the firm was dissolved by a deed of dissolution and another firm was constituted by the petitioner and two others; and that in 1965 one of the three partners died and thus the second partnership also got dissolved. The further allegation in Ext. P4 was that the petitioner and the remaining partner assigned their rights to a third party, who was thereafter running the concern as the sole proprietor thereof. There were one or two other objections also in Ext. P4 like that the assessment became barred, etc. Ext. P4 was dated 15th September 1966 within ten days of Ext. P3. The Sales Tax Officer remained silent for about two years more, and on 24th August 1968 issued Ext. P5, the preassessment notice now sought to be quashed. In the notice nothing was stated about the dissolution of the firm or the transfer of the business to a third party. Ext. P5 dealt with only the question as to how far the accounts submitted by the petitioner could be relied upon for making the assessment. The Sales Tax Officer rejected the accounts and said that he proposed to make a best of judgment assessment as indicated in Ext. P5. The papers produced before me show that the petitioner filed another objection to Ext. P5 as well.
(3.) The contention seriously urged before me is that the Sales Tax Officer has no power to assess a firm after it is dissolved, as there is no provision in the General Sales Tax Act of 1125 authorising such a levy. The Government Pleader opposes this contention saying that under Ext. P5 the Sales Tax Officer has asked the petitioner to file his objections, if any, to the proposals contained in Ext. P5, so that this Court need not interfere under Art.226 of the Constitution at this stage. The answer of the counsel of the petitioner is that, if the firm as such is not in existence the same having been dissolved and if under the Sales Tax Act the Sales Tax Officer has no jurisdiction to assess a dissolved firm, this Court need not wait for the assessment to be completed, because the lack of jurisdiction of the Sales Tax Officer goes to the very root of the assessment and this Court may, in such a case, quash even the preassessment notice. If, as contended by the petitioner's counsel, the firm has already been dissolved and in such a case the Sales Tax Officer has no power to assess the dissolved firm, there is no point in allowing the assessment to be completed and asking the petitioner to come by way of another writ petition, when alone this Court will exercise its jurisdiction under Art.226. Therefore, the only questions to be considered in this case are whether the original partnership which existed during the relevant time (1959-60) exists now when the assessment is sought to be completed; and whether under the General Sales Tax Act there is power vested in the Sales Tax Officer to assess a dissolved partnership.;


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