JEEYAKANWAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution by Mst. Jeeyakanwar and six others who are the heirs and legal representatives of one Shri Mahaveer Singh Dadha and by it they seek to challenge the recovery proceedings taken by the Sales Tax Officer, Jodhpur, in respect of an assessment of the firm Messrs Modern Shoe Mart, Haidar Building, Jodhpur. The relevant facts necessary for the disposal of this matter are as follows :- There was a partnership-firm working under the name and style of Messrs Modern Shoe Mart at Haidar Building, Jodhpur. The firm carried on business in the sale of shoes. It consisted of two partners, namely, late Shri Mahaveer Singh Dadha and Mst. Shanti Devi Kackar. According to the petitioner the firm continued its business till 23rd October, 1956, and thereafter the proprietorship of the firm was transferred to one of the partners, namely, Mst. Shanti Devi Kackar. The Sales Tax Officer, Jodhpur, according to the petitioners, issued notices to the firm as also to both the partners thereof in respect of the assessment year 1956-57. It may be mentioned that the accounting period corresponding to this assessment year was 15th November, 1955, to 23rd October, 1956. The grievance of the petitioners is that even though the Sales Tax Officer was informed that the aforesaid firm stood dissolved with effect from 23rd October, 1956, he proceeded to pass an assessment order and eventually created a demand for a sum of Rs. 3,328.38 nP. against the firm. It was contended by the petitioners that the Sales Tax Officer was not competent to make an assessment against a dissolved firm. When the predecessor of the petitioners, namely, Shri Mahaveer Singh Dadha, received a notice of demand for the said sum, he filed an appeal against the order of assessment before the Deputy Commissioner, Sales Tax (Appeals), Jodhpur, but as Shri Mahaveer Singh Dadha could not deposit the amount required to be deposited by him, the Deputy Commissioner rejected the appeal. It seems that after the rejection of the appeal Shri Mahaveer Singh Dadha expired and, therefore, the petitioners as his legal representatives filed a revision petition before the Board of Revenue, Ajmer, against the order of rejection of the appeal. The Board of Revenue, however, did not entertain the revision petition as, according to it, the same was not competent on the ground that no appeal had been filed against the order of the Sales Tax Officer, Jodhpur. It is in these circumstances that the petitioners have filed this writ petition. Their main contention before us is that the Sales Tax Officer could not have assessed the dissolved firm of which late Mahaveer Singh Dadha was a partner after it was dissolved in the year 1956. We ought to mention that this assessment order was passed by the Sales Tax Officer, Jodhpur, on 6th March, 1961.

(2.) THE writ petition has been opposed by the respondents. It is contended on their behalf that we should not entertain this writ petition under Article 226 of the Constitution as the petitioners had not availed of the statutory remedy of an appeal and by not depositing the amount of tax they had themselves failed to avail of it. It was next contended that as by the Rajasthan Taxation Laws (Amendment) Act (No. 13 of 1964), section 9 of the Rajasthan Sales Tax Act, 1954 (hereinafter to be referred as the "Act"), under which the assessment was made had been amended with retrospective effect, the Sales Tax Officer could have proceeded against the individual partners of the dissolved firm.