GANESHA NARAYANA HEGDE Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) These are three criminal revision petitions presumably under S.13(4) of the Karnataka Sales Tax Act (hereinafter to be referred as the 'Act') against the order of the J.M.F.C, Siddapur, issuing a distress warrant to the Deputy Commissioner, North Kanara, Karwar, to recover the amount as arrears of land revenue.

(2.) Since a common question of law and fact arises, these three petitions can be disposed of by a single order.

(3.) The uncontroverted facts are, that M/s.Vigneshwara Company is a registered partnership firm, and it is a dealer as such liable to pay sales tax. The petitioners as well as some of the respondents are the partners of the firm. The Commercial Tax Officer passed an assessment order against the firm and the proceedings under S.13(3)(b) of the Act for recovery are being initiated against the partners of that firm. In view of the S.421 of the Code of Criminal Procedure, for which a complaint was filed by the Commercial Tax Officer before a Magistrate, a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue, could be issued. The learned Magistrate has done so and an objection is taken that the said warrant is likely to result in the recovery of amount as arrears of land revenue from the personal assets of the partners as distinguished from the assets that may be held by them on behalf of the firm. The learned Counsel for the petitioners pointed out with reference to State of Punjab v. Jullundur Vegetables Syndicate AIR. 1966 SC. 1295. that for the purpose of realisation of Sales tax, although the firm could be treated a legal entity, none-the-less, the provisions of the Indian Partnership Act regulating the relationship between the partners and their liability to third parties, have, except in so far as those provisions are expressly or by necessary implication incorporated in the provisions of the Act, no relevance in the proceedings. The learned Magistrate has availed of the provision of that Act contained in S.25 and has held that the partners are jointly and severally liable to pay the tax meaning thereby, that the personal property of the partners is also liable. The learned Magistrate draws that inference from S.25 and says that every partner is liable with all the other partners and also severally for all acts of the firm done while he is a partner. In view of the observation of their Lordships in the State of Punjab case (1) supra, the view taken by the learned Magistrate cannot be sustained. Only such a provision contained in the Partnership Act will be amenable to the proceeding, if the said provision can be construed to be incorporated in the provisions of the Act either expressly or by necessary implication. Only to that extent, in my opinion, the principle, that the firm acts through its partners and that the proceedings can be initiated against the partners in the name of the firm, is to be incorporated in the Act. That being so, the complaint filed by the Commercial Tax Officer against the partners for and on behalf of the firm, will be considered a valid complaint. After all, it was only a matter of detail that either the firm's name was mentioned in the title head of the complaint in the beginning and thereafter its partners were described or in the title head first the partners were described and thereafter it was recited that they were being proceeded for and on behalf of the firm. As such the objection of the learned Counsel with reference to the title head of the complaint may not be very material.