D.P.GUPTA, J. - (1.) THE petitioner seeks to challenge the order of attachment dated February 13, 1974 and the notice for sale of immovable property dated October 1, 1974 on the ground that the amount which is sought to be realised was not due against the petitioner firm but the sum represented the dues relating to sales -tax against M/s Hanumandas Harikishan, which was a different firm.
(2.) M /s Hanumandas Harikishan (hereinafter called 'the firm') was a partnership firm registered under the Indian Partnership Act, with Hanumandas and his son Harikishan as partners. The arrears of sales tax were due against the aforesaid, firm as the demands raised by the Commercial Taxes Officer, Ganganagar were not satisfied by the firm Hanumandas Han Kishan. The aforesaid firm was dissolved in the Samwat Year 2025 -26 according to the statement of Gaurishanker. A sum of Rs. 21,527.91 were sought to be realised from. Hanumandas or M/s Hanunidndas Harikishan by way of sale of immovable property viz. 'noliara' No. 11, situated in Bijaynagar, District Ganganagar, inclusive of land and factory run under the name and style of M/s Ratan Rice Flour and Oil Mills (hereinafter called 'the Mills'). An objection was filed on behalf of the Mills before the Commercial Taxes Officer, Shri Ganganagar that the 'nohra'and the factory which had been attached and were sought to be sold by public auction belonged to the mills. It was stated in the objection petition filed by M/s. Ratan Rice, Flour and Oil Mills, Sri Bijaynagar, through its partner Gaurishanker that the demand, against M/s. Hanumandas Harikishan had nothing to do with the Mills and that the Mills were not responsible for payment of dues outstanding against the firm, as the Mills had no concern whatsoever with the firm The Commercial Taxes Officer, Sri Ganganagar on receipt of the aforesaid objection, issued a notice to the Mills on March 16, 1974 calling upon it IO produce the account books of M/s Ratan Rice, Flour and Oil Mills since its establishment. Gaurishanker, son of Hanumandas, appeared on behalf of the Mills before the Commercial Taxes Officer on May 8, 1974 and produced the account books. The Commercial Taxes Officer recorded the statement of Gaurishanker on September 23, 1974, a copy of which has been produced on the record as Ex. R. 1. It was deposed by Gaurishanker in his aforesaid statement that the land of the 'nohra' in which the building of the Mills is situated, was given by means of gift by Hanumandas and that he had executed a gift deed in respect of the land in question. Gaurishanker was thereupon required by the Commercial Taxes Officer, to appear before him on September 30, 1974 and produce the alleged gift deed, but Gaurishanker neither appeared nor produced the gift deed said to have been executed by his father Hanumandas. It is not known nor it appears from the record as to whether Hanumandas gifted the 'nohra' to Gaurishanker or to the Mills or to any other person. The Commercial Taxes Officer rejected the objection petition filed by the Mills on account of the fact that no body appeared before him on September 30, 1974 on behalf of the Mills and directed that a proclamation for sale of the attached property be issued in case the amount for which the demand was issued was not paid upto October 14, 1974. A notice was also issued by the Commercial. Taxes Officer on October 1, 1974 to the Mills that in case the amount of the outstanding demand against M/s Hanumandas Harikishan was not paid or deposited upto October 13, 1974 then the attached property shall be sold by public auction. The demand outstanding against the firm in respect of sales tax dues was sought to be realised as arrears of land revenue, under the provisions of the Rajasthan Land Revenue Act.
(3.) THE petitioner in this writ petition has stated that the Mills is a separate partnership concern, in which there were three partners viz. Gaurishanker son of Hanumandas, Bhanwari Devi wife of Hari Kishan, who is also son of Hanumandas and Shiv Ratan, who is another son of Hanumandas. Thus two sons of Hanumandas and a third son's wife constitute the new partnership concern. A copy of the entry relating to the firm in the office of Registrar of Firms, Rajasthan, shows that the application for registration of the firm was filed on June 11, 1971, although the aforesaid persons are said to have joined to constitute the firm on July 5, 1968. Gaurishanker, one of the partners, who appeared before the Commercial Taxes Officer on behalf of the Mills, deposed in his statement that the plot of land over which the factory of the mills was constructed was gifted by Hanumandas. He also admitted that a sum of Rs. 11,663.92 were spent by the firm for purchasing machinery etc. out of which substantial amounts were transferred from firm M/s Hanumandas Harikishan. The Mills failed to produce a copy of the alleged gift deed in respect of plot of land, either before the Commercial Taxes Officer or even in this Court in these proceedings. The Commercial Taxes Officer, on the basis of the material produced before him on behalf of the Mills, was of the view that the immoveable property viz. the land and factory belonged to the firm Hanumandas Harikishan and that transfer of the assets of the firm to the new partnership concern was merely a benami transaction as the Mills had taken over the business of the old firm. It was in these circumstances that the Commercial Taxes Officer proceeded to direct that the immoveable property in question be sold by public auction in order to realise the arrears of sales tax outstanding against M/s Hanumandas Hari Kishan.;