CHATURVEDI, J. - (1.) THIS is a petition under Article 226 of the Constitution. Firm Bansgopal Amarnath was constituted in the year 1948 and it used to deal in bullion and ornaments. The petitioner was a partner in this firm having a one third share. The other two-third was owned by Amarnath and Kedar Nath in the proportion of one half each. The firm was registered under section 8A of the U.P. Sales Tax Act, 1948, as a registered dealer. The firm elected to submit quarterly returns of its turnover, as provided by rule 39(1) of the rules framed under the Act. Amarnath subsequently left the firm on the 16th July, 1950, and the other two partners, namely, Kedar Nath and the petitioner them became owners of this firm in the proportion of half and half. The firm was subsequently assessed to sales tax by an order dated the 19th July, 1952. The reconstituted firm was known as Bansgopal Amarnath and this firm was also dissolved on the 18th April, 1952. The assessment was, however, made on this firm for the year 1951-52 on the 17th March, 1953. The taxes were not paid and the papers were sent to the Collector for realising the amounts assessed by both the orders, mentioned above, as arrears of land revenue. The petitioner filed an appeal against the second assessment order before the Judge (Appeals) Sales Tax, Kanpur Range, and that appeal is still pending. Before sending the papers for the realisation of the tax as arrears of revenue, a notice was issued in the name of the firm, which was served on the petitioner, and the petitioner filed certain objection to the assessment and recovery of this tax. His objections were overruled and the papers were then sent to the Collector for the recovery of the tax.
(2.) IN the present petition it is prayed that a writ in the nature of certiorari be issued quashing the assessment orders dated the 19th July, 1952, and the 17th March, 1953, and a writ in the nature of mandamus be issued directing the respondent No. 1, namely, the Sales Tax Officer, to withdraw the certificate under section 8 of the U.P. Sales Tax Act, which was for recovery of both the taxes. It is also prayed that a writ in the nature of mandamus be issued directing the District Magistrate and Collector of Etawah not to collect the taxes from the petitioner assessed under the two orders, mentioned above. In support of the petition the learned counsel for petitioner has submitted two points. His first contention is that under the U.P. Sales Tax Act an order of assessment cannot be passed on a firm after it has been dissolved, and the second is that the previous partner of the firm cannot be proceeded against for the recovery of the taxes after the dissolution of the firm. Both the points may be considered together.
(3.) THE learned counsel for the petitioner referred me to the definition of the word "dealer", as defined in section 2(c) of the Act. In this sub-section "dealer" has been defined as meaning any person or association of persons carrying on the business of buying or selling and supplying goods in the United Provinces, and it includes any firm or Hindu joint family and any society, club or association, which sells or supplies goods to its members; but it does not include any department of the State Government or the Indian Government. The argument of the learned counsel is that the word "dealer" includes a firm also and in the present case, the firms were assessed to tax and not the individual partners and the money, therefore, could not be realised from the petitioner. I am unable to accept the contention, because, in my opinion, the word "dealer" includes not only the firm but also the partners of that firm, as they were also persons who were doing the business of buying and selling bullion. The word "dealer" would include not only the firm but also the individual partners of that firm, and the definition of the word, as given in section 2(c) of the Act, does not help the petitioner. Section 3 is the charging section and it says that, subject to the provisions of the Act, every dealer shall pay on turnover in each assessment year a tax at a particular rate. The word used in the section is "dealer", and if that word includes the partners of the firm as well, then these partners also must be taken to have been assessed and are liable to pay the tax. The only rule about the registration of dealers is contained in section 8A of the Act. The section says that any dealer may get himself registered under the section, and the registration enables the registered dealer to realise sales tax from the purchasers.;