BOSE, J. - (1.) THIS is an application under Article 226 of the Constitution for writs in the nature of mandamus, prohibition or certiorari for cancelling or quashing a requisition calling upon the petitioner to produce books of accounts and records for the purpose of assessment of sales tax in respect of certain periods mentioned in the petitioner.
(2.) THE petitioner is a company having its registered office at 25, Zakaria Street, Calcutta. The company was registered on the 28th May, 1948, and obtained certificate of commencement of its business on the 31st May, 1948, and got itself registered as a dealer under the Bengal Finance Sales Tax Act, 1941, on the 21st July, 1948. The petitioner has acquired and taken over as a going concern the business of Major Soap Company which was a proprietary concern including the stock-in-trade, machinery, furniture and goodwill etc. but neither the assets nor the liabilities and states that it is not a "transferee" within the meaning of Section 17 of the Bengal Sales Tax Act nor is it a "dealer" within the meaning of the definition in the Act, and it has been registered as a dealer and transferee under a misapprehension as to its correct status. The company asserts that it is not a transferee as the assets and liabilities of Major Soap Company have not been transferred to it. On the 12th April, 1950, the Commercial Tax Officer, Colootola Charge, required the petitioner to produce books of accounts and records for the purpose of assessment of sales tax in respect of four quarters ending 31st March, 1948, and four quarters ending 31st March, 1949. It appears that Section 18 of the Sales Tax Act, 1941, has been repealed by an Ordinance promulgated by the Government of West Bengal being Ordinance X of 1950. On the 14th September, 1950, the Assistant Commissioner of Commercial Taxes, Calcutta (South) by a requisition fixed the 2nd November, 1950, for assessment of taxes for four quarters ending 31st March, 1948, and for four quarters ending 31st March, 1949.
(3.) THE petitioner charges that these acts are without jurisdiction and ultra vires. It is contended by Mr. Meyer the learned counsel for the petitioner that as the assets and liabilities of the business have not been transferred he is not a transferee of the business. This contention is fallacious and cannot be accepted. A business is a mercantile pursuit or a trading concern. A dealer as defined in Section 2(c) of the Act is a person engaged in the business of selling or supplying goods. When the full rights in that business of selling or supplying goods is transferred to another person the latter becomes a transferee within the meaning of Section 17 of the Act. It appears that the petitioner company has acquired by virtue of the transfer the right to carry on the business, the stock-in-trade, machinery, furniture and goodwill etc. In fact everything that is comprised in the connotation of a business has been assigned to the petitioner and the words "etcetra" bring in, any other thing in relation to the business that may not have been specifically mentioned, excluding of course anything that is expressly excluded from the operation or scope of the transfer. The expression "neither the assets not the liabilities of the proprietor" has the effect of keeping out assets such as book debts due to the transferor or cash at the Bank and also all liabilities. But the whole of the undertaking or enterprise has been transferred and because a portion of the assets of the liabilities are excluded from the scope of the transfer that does not prevent the ownership of the business passing and divesting the transferor of its ownership therein. I hold that the petitioner is a transferee within the meaning of Section 17 of the Act and as such a "dealer" within the meaning of the Act.;