D.N.Sinha, J. - (1.) The facts in this case are briefly as follows: The petitioner Bama Charan De, and one Hrisikesh De carried on busniess, in partnership, as follows:- 1. Under the trade name of Co-operative 'Book Depot at 54 College Street, Calcutta, as 'Booksellers and Publishers. 2. Under the trade name of Abhoy Charan De and Brother at 20 Maharsht Debendra Road, Calcutta, in hardware materials. On or about the last day of September, 1955, the partnerships were dissolved and Hrisikesh became the sole owner of the Co-operative Book Depot and Bama Charan De became sote owner of Abhoy Charan De and Brother. This dissolution was effected by a registered Deed of Dissolution dated the Ist September, 1955. In this case, we are concerned with the Co-operative Book Depot only.
(2.) After the dissolution, Hrisikesh continued to cany on the said business, but no public notice of dissolution was given as contemplated by Section 45 of the Partnership Act. Hrisikesh died on the 10th February, 1957 leaving a will by which he bequeathed the said business to his son Ramendra Nath De. who became its sole proprietor and carried on the business. No intimation of the dissolution of the said partnership and the change of ownership was given to the Commercial Tax authorities, as is contemplated under Section 16 of the Bengal Finance (Sales Tax) Act 1941 (hereinafter referred to as the 'said Act'), at the relevant time.
(3.) The said Co-operative Book Depot' was assessed to sales tax under the said Act for the year 1956-57 (1363 B. S.) and 1957-58 (1364 B. S.). In both these cases, the assessments were completed on estimate, to the best of the judu-ment of the assessing authority who rejected the. a3mitted figures and imposed a penalty of Rs. 2000/- for each assessment period, for non-furnishing of returns within the due dates. It was Ramendra who appeared in the proceedings and preferred an appeal before the Assistant Commissioner, who upheld the ex parte assessments but reduced the estimates for the gross and taxable turn-overs and the penalty was also reduced to Rs. 500/- for each year of assessment. From this order Ramendra appealed in revision before the Additional Commissioner Commercial Taxes. On or about 12th November, 1959 the Commercial Tax Officer, Sealdah charge sent to the Certificate Officer, 24-Parganas, two applications under Rule 56. of the Bengal Sales Tax Rules for recovery of arrears of sales tax and penalty in respect of the. assessments above mentioned of Co-operative Book Depot, under the Bengal Public Demands Recovery Act (hereinafter referred to as the "P. D, R. Act"). On the strength , of these two applications two certificates being No. 143 S. T. (SL) of 1959-60 and No. 144 S.T. (SL) of 1959-60 were issued by the Certificate Officer, 24-Parganas on 25th November, 1959, Notices under Section 7 of the P. D. R. Act were issued and Ramendra Nath De describing imself as, "the son of late Hrisikesh De, proprietor of the said Co-operative Book Depot," filed an objection denying liability, under-Section 9 of the P. D. R. Act. Subsequently, he also filed an objection petition under Section 37 of the P. D. R. Act. In all these applications, he claimed that Hrishikesh De had become the sole proprietor of the said business but that he had died on roth February 1957 after which Ramendra became the sole proprietor. His objection was that the certificates were issued in the name of Co-operative Book Depot (Partners, Hrisikesh De and others--and he claimed that this amount ed to issuing, a certificate against a dead man and therefore, the Certificate Officer had no jurisdiction to issue the certificates, which were void. He also disputed the quantum, claiming that certain payments were not credited. The Certificate Officer sent for a report from the Commercial Tax Officer, Sealdah charge. On 3Oth February, 1960 the Commerical Tax Officer sent replies to the objection, stating inter alia that the business was originally a partnership business between Hrisikesh De and Bama Cbaran De and no intimation regarding the change of ownership or the death of Hrisikesh De had ever been received. According to him the certificates had been rightly issued and were perfectly valid. On 8th June, 1960, the Certificate Officer rejected the objection. Against this order, Ramendra filed an appeal before the Collector, 24-Parganas and the learned Additional District Magistrate who heard the appeal remanded the cases to the Certificate Officer with a direction to hold an enquiry on the point of the alleged dissolution of the partnership business, after giving due notices to both sides and requiring them to adduce evidence. This matter was heard by the Certificate Officer upon evidence and on the 7th July, 1961 he rejected the objection. Meanwhile, on the nth July, 1961 the revisional application made by Ramendra before the Additional Commissioner, Commercial Taxes, in respect of the main assessment itself, came to be heard and it was held that Ramendra was entirely liable for the dues. A. copy of the order is set out as annexure 'B' to the petition. The learned Additional Commissioner inter alia said as follows: "Evidently Hrisikesh De had bequeathed the business in favour of the petitioner and by virtue of the same he was the legal heir in respect of the business soon after the death of Hrisikesh De and by the probate of the Will the said fact was only confirmed and had seal and approval of the competent authority. It cannot be denied that even before obtaining the probate the petitioner had been enjoying the benefits of the asset and had been acting as the owner of the business ............ the petitioner has been held to be the owner of the business since after, the death of Hrisikesh De. It should be relevant to note here that in terms of the provision of Section II-A of the Bengal Finance (Sales Tax) Act 1941, completion of the proceed ings in the trade name of the business cannot be held to be illegal.";