MILAP CHANDRA,j. - (1.) THIS writ petition has been filed for quashing the notices dated June 27, 1978 (annexure 6), dated March 20, 1979 (annexure 7) and dated April 18, 1979 (annexure 8), attachment-memo dated June 13, 1979 (annexure 9) and proclamation of sale (annexure 10), issued by the Commercial Tax Officer, B Circle, Jodhpur (non-petitioner No. 3 ). The facts of the case giving rise to this writ petition may be summarised thus :
(2.) SRIKRISHNA Ladha was carrying on business of manufacturing and sale of lime in village Hariyadana (Bilara) under the name and style of M/s. Marudhara Lime Works in a kiln. He had immovable properties near it. He was a registered dealer under the Rajasthan Sales Tax Act, 1954 (hereinafter to be called "the Act') and Central Sales Tax Act, 1956. For the period from April 1, 1974 to March 31, 1975, he was assessed by the Assistant Commercial Taxes Officer, Circle B, Jodhpur (non-petitioner No. 4) and a demand of Rs. 15,685. 26 was raised as tax vide assessment order dated June 22, 1976. Certain amount was recovered from him and Rs. 17,945. 26 remained outstanding against him. The assessing authority (non-petitioner No. 4) moved the Commercial Taxes Officer, B Circle, Jodhpur (non-petitioner No. 3), exercising powers of the Collector under the Rajasthan Land Revenue Act, for the recovery of the said amount. During the recovery proceedings, the non-petitioner No. 3 was informed by the non-petitioner No. 4 that SRIKRISHNA had sold away the lime kiln and the building appurtenant thereto to the petitioner for Rs. 15,000 through a registered document of sale dated March 25, 1977. Thereon, the non-petitioner No. 3 sent notices annexures 6, 7 and 8 to the petitioner to show cause as to why the lime kiln and the building purchased by him be not attached and sold to recover the said amount outstanding against his vendor SRIKRISHNA. The petitioner filed his reply, annexure 3, raising several objections including that he was bona fide purchaser for consideration and without notice of the pendency of the recovery proceedings. The objections were not decided either by the non-petitioner No. 3 or by the non-petitioner No. 4. The non-petitioner No. 3 intimated the petitioner that under the provisions of section 9 of the Act the said amount could be recovered from the said properties purchased by him and also from his personal properties vide his notice dated April 19, 1979 (annexure 8 ). Thereafter, the non-petitioner No. 3 issued warrant of attachment for attaching his personal properties. In compliance thereof, his ancestral house situated in ward No. 4, Bilara, has been attached along with Usha fan and steel almirah vide attachment memo (annexure g ). Proclamation of sale (annexure 10) has also been issued. In the written reply, the non-petitioners have admitted almost all the facts averred in the writ petition. It has been averred that the petitioner is liable to pay the said amount and his properties have rightly been attached. It has been contended by the learned counsel for the petitioner that the assessee, Srikrishna, had simply transferred his lime kiln and the adjoining buildings, he did not transfer his business, the provisions of section 9 (1) of the Act are not attracted in this case, the non-petitioner No. 3 could proceed to recover the said amount from the petitioner only after a finding is recorded by the non-petitioner No. 4 to the effect that the petitioner is liable to pay the said amount under section 9 (1) of the Act and in the absence of any finding to this effect no action can be taken against him in connection with the recovery of any amount. He relied upon [1971] 27 STC 473 (SC) (Doma Sao Mohanlal v. State of Bihar), [1965] 16 STC 350 (MP) (Bajranglal Bajaj v. State of Madhya Pradesh) and [1975] 35 STC 217 (Pat.) (Sreemati Vasant Tanna v. State of Bihar ). In reply, it has been contended by the learned counsel for the non-petitioner that the entire business of the assessee, Srikrishna, was transferred to the petitioner, the non-petitioner No. 3 was exercising power of an assessing authority as well as of Collector under the Rajasthan Land Revenue Act for recovering the said amount, he had duly held that the petitioner is liable to pay the amount under section 9 (1) of the Act and accordingly he has jurisdiction to attach and auction the immovable properties belonging to the petitioner. It is not in dispute that Rs. 18,185. 26 were outstanding against the assessee, Srikrishna, proprietor, Marudhara Lime Works, Hariyadana as tax and interest, the petitioner purchased the lime kiln and adjoining buildings from him for Rs. 15,000 through a registered document dated, March 25, 1977 and this amount is being realised from him by attachment and sale of his personal properties.
(3.) THE question for consideration is whether the petitioner is liable to pay the amount outstanding against the transferor, Srikrishna, as tax and interest. THE case of the non-petitioners is that they are entitled. To recover the same from the petitioner under section 9 (1) of the Act. It runs as under : " 9. Liability on transfer of business or on discontinuance or dissolution of business of a firm, etc.- (1) When the ownership of the business of a dealer liable to pay the tax is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer, shall be payable by the transferee, as if he were the dealer liable to pay such tax; and the transferee shall also be liable to pay tax on the sale or purchase of goods effected by him with effect from the date of such transfer and shall within thirty days of the transfer, apply for registration unless he already holds a certificate of registration. " THE non-petitioners have clearly stated at page 9, para 16 (viii), of their reply dated July 30, 1990, that the entire landed property of the dealer, i. e. , M/s. Marudhara Lime Works, Hariyadana, was sold to the petitioner and, therefore, he was liable to pay the said amount. It is not their case that the ownership of the business of the dealer, M/s. Marudhara Lime Works, Hariyadana, was entirely transferred. THE transfer-deed, annexure 12, also does not show that running business of the lime kiln, i. e. , stock-in-trade, business assets, goodwill and its credits and debits were transferred. It is clear from the above quoted provisions of section 9 (1) of the Act that the transferee is liable to pay the tax payable in respect of the business of the transferor and remaining unpaid by him if the ownership of the business is entirely transferor and not otherwise. It is further clear from the provisions of sub-section (2) of section 9 that the transferee is not liable if the ownership of a part of the business is transferred by the assessee. It is also not the case of the non-petitioners that the said lime kiln and the adjoining buildings were purchased by the petitioner from the assessee, Srikrishna, without consideration and with notice of the pendency of the recovery proceedings. The transfer-deed, annexure 12, was executed and registered on March 25, 1977 and notice, annexure 1, was issued to the petitioner for the first time on July 16, 1977. The expression "without notice of pendency of proceedings under the Act" appearing in the proviso of section 11aaa refers to the dealer (transferor) and not to the transferee. As such the said transfer cannot be said to be void within the meaning of section 11aaa of the Act. Section 11aaa of the Act runs as under. " 11aaa. Transfer to defraud revenue void.- Where during the pendency of any proceedings under this Act, any dealer creates a charge on or parts with the possession by way of sale, mortgage, exchange, or any other mode of transfer whatsoever, of his immovable property in favour of any other person with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable under this Act by the dealer as a result of the completion of the said proceedings : Provided that such charge or transfer shall not be void if made for valuable consideration and without notice of the pendency of proceedings under this Act. " On August 22, 1977, the petitioner filed his reply, annexure 3, raising various objections. It is stated in paras Nos. 8 and 10 of the reply dated July 30, 1990, that the objections were rejected by order dated January 24, 1978. It is very much doubtful that such an order was passed. Firstly, no copy of this order has been filed. Secondly, it has been stated in para 16 (ix) of the reply that a show cause notice was issued to the petitioner under section 9 of the Act on April 19, 1979, he refused to take it and, therefore, the non-petitioner No. 4 had no alternative but to proceed against the petitioner. When the objections had already been decided on January 24, 1978, there was no question of again issuing show cause notice, annexure 8/r2, on April 18, 1979. Thirdly, there is no reference of the order dated January 24, 1978 in the show cause notices, annexure 4 dated February 13, 1978, annexure 5 dated January 27, 1978, annexure 6 dated June 27, 1978 and annexure 7 dated March 20, 1979. Fourthly, it would not have been stated in the notice, annexure 8/r2, that the petitioner's counsel Shri Bilam Chand Mehta, Advocate, was satisfied on April 6, 1979, during "cross-examination" that the petitioner was liable to pay the said amount outstanding against the transferor, Srikrishna. If the order would have been passed on January 24, 1978, there was no question of satisfying Shri Mehta on April 6, 1979. It can thus he said that the objections of the petitioner were not decided and no finding was recorded either by the non-petitioner No. 3 or the non-petitioner No. 4 that the petitioner is liable to pay the said amount before issuing warrant for the attachment of his personal movable and immovable properties. In the absence of such a finding, no action against the petitioner could he taken in connection with the recovery of the said amount. It has been observed in Doma Sao Mohanlal v. State of Bihar [1971] 27 STC 473 (SC) at page 476 as follows : " Without deciding that the business in respect of which the liability to pay tax arose was entirely transferred to the appellant, the liability to pay tax assessed against Doma Sao Kishun Lall could not be enforced against the appellant. " Reference of Sreemati Vasant Tanna v. State of Bihar [1975] 35 STC 217 (Pat.) and Bajranglal Bajaj v. Stage of Madhya Pradesh [1965] 16 STC 350 (MP) may also be made here. The provisions of section 24 (1) of the Bihar Sales Tax Act, 1959 and section 33 (1), M. P. General Sales Tax Act, 1958, are similar to the provisions of section 9 (1) of the Rajasthan Sales Tax Act, 1954. ;