- (1.) THIS is a revision petition filed by the State against the order of the Deputy Commissioner, Excise and Taxation, Appeals, Jaipur dated 12-3-63.
(2.) THE brief facts of the case are that the non-petitioner firm has been assessed for sales tax for the year 1959-60 by the Assistant Sales Tax Officer, Beawar on 28-2-62. THE petitioner went in appeal before the Deputy Commissioner, Excise and Taxation Jaipur alleging that the non-petitioner firm was closed on 19-2-58, hence the assessment done by the Assistant Sales Tax Officer for the year 1959-60 is illegal. THE Deputy Commissioner allowed the appeal and ordered to refund the tax if recovered. Aggrieved by this order the State has come up in revision before the Board of Revenue. The counsel for the State has argued that the learned Deputy Commissioner has erred in holding that the non-petitioner was not liable to assessment after dissolution and has argued that even after dissolution of the firm the partners were jointly and severally responsible in respect of the past dealings for the liability incurred during the time of existence of the firm. The main contention of the Government Advocate is that there is no evidence on record to show that when the non-petitioner firm was dissolved and no notice was given to the assessing authority informing that the said firm has been dissolved. Hence the Assessing Authority has rightly assessed the non-petitioner firm. In support of his contention he has cited following rulings: S. T. C. 1960 page 80 according to which the Madras High Court has held that although the Madras General Sales Tax Act, 1939, and the Rules framed there under make no separate provision for assessing the turnover or for the recovery of taxes due by a dissolved firm, the firm being a dealer as defined in sec. 2 (b) upto the date of its dissolution, could be assessed to sales tax even after dissolution and the tax could be recovered from the partners of the dissolved firm. S. T. C. 1962 page 556 according to which the Madras High Court has held notwithstanding the dissolution of a partnership, the responsibility for the tax is joint and several on every partner. An assessment made in the name of the partnership, even though it may be dissolved, has only the effect of an assessment made on each and every one of the individual partners, as the firm, though an assessable entity is not a legal entity and must be regarded as representing in a compendious fashion all the partners of the partnership. S. T. C. 1962 page 796 according to which the High Court of Mysore has held that if a partnership firm was in existence during these assessment years, the partners of the firm are clearly liable to pay the sales tax in respect of the turnover of that firm and they cannot repudiate that liability on the ground that at the time the assessment is made the partnership has disappeared by reason of its dissolution. S. T. C. 1963 page 46 according to which High Court of Orissa held that where a partnership was dissolved and the business was closed but no notice of dissolution was given to the sales tax authorities required by sec. 18 (b) of the Act read with R. 14 of the Orissa Sales Tax Rules, 1947, the assessment proceedings might be continued as if the partnership had not been dissolved. S. T. C. 1964 page 165 according to which a D. B. of Punjab High Court has held that in view of the facts that no intimation was given about the dissolution of the firm as required under the Act and the Rules, the firm continued to be liable to be assessed and that in any case proceedings having been initiated long before the actual dissolution, order of assessment could properly be made notwithstanding the subsequent dissolution of the firm. The counsel for the non-petitioner firm has argued that the assessment is for the year subsequent to dissolution of the firm of partnership which was a partnership at will and which could be dissolved at any time after giving notice of the intention to dissolve the partnership to the other partner. He has argued that the firm was dissolved on 19-2-58 and as such no assessment can be made on the firm for the year 1959-60. He has conceded that the assessment may be made against Shri Chiman Singh Lodha for that year who is the sole proprietor since 20-2-1958 and the partnership firm had no existence on that day. He has also cited S. T. C. 1957 Alld. , p. 459 according to which Allahabad High Court has held that an assessment order cannot be made under the U. P. Sales Tax Act, 1938 on a firm after it is dissolved and has discontinued business on the ground that the firm as a unit of assessment has ceased to exist. I have heard both the counsel for the parties and have gone through the entire record. There is no express provision in the Rajasthan Sales Tax Act which makes it mandatory on a registered firm to inform the Assessing Authority of their intention to dissolve the firm. The contention of the firm that it was dissolved on 19-2-1958 and which has not been seriously challenged by the opposite party will therefore have to be accepted. From the careful perusal of some of the rulings cited by the Government Advocate it is clear that in those cases the firm was assessed when it was not actually dissolved, but was dissolved subsequently. In the present case the dissolved firm has been assessed when it was actually not in existence. As such some of the rulings cited by the learned Advocate are not applicable to the facts of the present case. From the careful perusal of sec. 9 of the Rajasthan Sales Tax Act 1954, it is amply clear that the tax is payable by transferee of business. I, therefore, uphold the decision of the learned Deputy Commissioner, Sales Tax, to the extent that the dissolved firm cannot be assessed, but the sole proprietor Shri Chiman Singh Lodha may be held liable to assessment after dissolution of the partnership firm, if he is the transferee of business. . ;