STATE OF ANDHRA PRADESH Vs. PACHIPULUSU VENKATA SUBBA RAO AND CO
HIGH COURT OF ANDHRA PRADESH
STATE OF ANDHRA PRADESH
PACHIPULUSU VENKATA SUBBA RAO AND CO
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GOPAL RAO EKBOTE,J. -
(1.)THIS sales tax revision is directed against the order of the Sales Tax Appellate Tribunal made in Tribunal Appeal No. 1018 of 1963 on 16th April, 1965, whereby the Tribunal allowed the appeal and held that the assessment order passed on Messrs Pachipulusu Venkata Subba Rao and Co. is illegal and cannot be enforced.
(2.)THE material facts in order to appreciate the contention raised before us are that Messrs Pachipulusu Venkata Subba Rao and Co. is a firm transacting business in cloth at Vijayawada. Pachipulusu Venkata Subba Rao, who is one of the partners of the said firm, also has his personal business which he carries in the name and style of Messrs Pachipulusu Venkata Subba Rao. Messrs Pachipulusu Venkata Subba Rao and Co. , the firm, filed a return in regard to their turnover for the assessment year 1956-57. According to this return the turnover was Rs. 5,82,828-10-0.
Since the Commercial Tax Officer was not satisfied with the correctness or completeness of this turnover, he issued a notice under rule 12 calling upon the assessee to produce the account a books on 28th March, 1961. This notice was issued in the name of Messrs Pachipulusu Venkata Subba Rao and not in the name of Pachipulusu Venkata Subba Rao and Co. which was the firm and the assessee. The notice was tendered to a person who was found working in the shop of the said firm. He refused to accept and, therefore, it was returned. The Commercial Tax Officer treating that refusal as sufficient proceeded to pass the assessment order according to the best of judgment under section 14 (1) read with rule 17 (6) and held, by his order of assessment dated 31st March, 1961, the turnover to be of the order of Rs. 7,34,252-8-6. The order on the face of it seems to have been passed only against Messrs Pachipulusu Venkata Subba Rao proprietary concern and not against the firm which as stated above is Pachipulusu Venkata Subba Rao and Co. After the said order was passed, he issued form B3 notice. This notice was issued in the name of Messrs Pachipulusu Venkata Subba Rao and Co. It was, however, served on Pachipulusu Venkata Subba Rao, who was one of the partners of the firm.
(3.)AGGRIEVED by that order, Pachipulusu Venkata Subba Rao on whom the notice was served, preferred the appeal under the name and style of Messrs Pachipulusu Venkata Subba Rao. The Assistant Commissioner of Commercial Taxes rejected the appeal holding that the non-mention of the words "and Co. " is only an error and does not vitiate the proceedings. Dissatisfied with that order of the Assistant Commissioner of Commercial Taxes, Messrs Pachipulusu Venkata Subba Rao carried the matter in appeal to the Sales Tax Appellate Tribunal. The Tribunal by its order under revision accepted the contention of the appellant that no notice was served upon the firm and, therefore, the order of the Commercial Tax Officer dated 31st March, 1961, is illegal and cannot be enforced against the firm. It is this view that is now assailed in this revision by the department. The principal contention of the learned Government Pleader is that the notice was properly issued and validly served. The Commercial Tax Officer's order, therefore, cannot be said to be illegal or unenforceable.
In order to appreciate the implications of this contention, it is necessary to mention that the notice under rule 12, which was issued not in the name of the firm but in the name of the proprietary concern, was tendered to a person who has not been named but who was found working in the shop of the firm. As the person to whom the notice was tendered refused to accept it, it was returned with an endorsement. The endorsement does not disclose as to who that person was. It is also silent as to whether the person was the manager or the agent of the firm. Admittedly he was not a partner of the firm.
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