- (1.) The State of Madras (the State of Andhra Pradesh was substituted by order dated 9/04/1954) filed a suit against six defendants (1) Messrs Hussain Bhoy Sons and Co. , Bombay ; (2) Yacoob hussain Bhoy by power of attorney agent Atlaf H. Laljee ; (3) Haroon h. A. Laljee ; (4) Abbas Bhoy Hussain Bhoy ; (5) Unisha Bhoy Hussain bhoy, known as Annes H. Laljee ; and (6) Fazal Hussain Bhoy known as Fazal H. Laljee, for the recovery of Rs. 72,273. 00 alleging, in brief, that this sum was due from the said defendants on the basis of an assessment order dated 31/03/1946' marked exhibit A-3 made by the Deputy Commercial Tax Officer, Guntur, under the Madras General sales Tax Act, 1939' in respect of the year 1944-45. Various pleas were taken in the written statement but as we propose to dispose of the appeal on one point, which will be presently stated, we mention only one plea. It was stated in the written statement that the orders of assessment and demand were illegal, ultra vires, arbitrary and void as ignition. Various reasons were given why it was alleged that the order of assessment was bad. Two issues were framed to cover this plea. "Issue No. 4-Whether the assessment of the sales tax in question is void and ultra vires Issue No. 5-Whether the assessment of sales tax was properly and validly made on the its defendant firm -
(2.) The Additional Subordinate Judge, Guntur, decreed the suit. On appeal by the defendants, the High Court reversed the decree on the ground that the assessment was bad in law as a notice under rule 17 (5) of the Madras General Sales Tax Rules, 19391 was a condition precedent to the making of an assessment, and the notice relied on by the State, exhibit A-r, dated 19/03/1946 was addressed to Hussain Bhai laiji, father of defendants two to five, and not to defendants two to five or defendant No. 1, the firm, constituted by the defendants two to five. The said Hussain Bhai Laiji was not even a partner in the said firm.
(3.) The High court granted a certificate under Article 1331 and now the appeal is before us. The learned counsel for the appellant addressed us on the point decided against the appellant by the High court. In reply, the learned counsel for the respondents raised the point that the whole basis of the suit was the assessment order dated 31/03/1946 but this was not an assessment order made against any of the defendants. He said that before a suit can be filed for the recovery of a tax levied or determined by an assessment order, that order must be passed against the persons sought to be made liable. The learned counsel for the appellant objected that this point had been raised for the first time and should not be allowed to be' raised at this stage. Before discussing the merits of the point, we may say that in the exceptional circumstances of this case the objection of the learned counsel for the appellant should not be sustained. In the written statement the general plea had been taken that the assessment order, A-3, was void etc. , and the point had been taken in para. 14 of the written statement that the order of assessment and demand was illegal, etc. It must, however, be admitted that the point now raised was not taken expressly. The judgment of the learned sub-Judge does not deal with it. But the point was taken in the grounds of Appeal, No. 4, which reads thus: "That the statutory form of notice (exhibit A-1) was, as a matter of fact, issued upon third party (Hussain Bhai Laiji) who was unconnected with the suit dealings and not upon the defendants. Consistently enough he was assessed by the assessing authorities in respect of the suit transaction and not the defendants. ";