DEVASSY Vs. ADDL SALES TAX OFFICER

JUDGEMENT

(1.) THE petitioner's son died in a scooter accident on 14-7-1974. THE son was a dealer under the Kerala General Sales-tax Act. THE father, on the death of the son, being his legal representative, is deemed to be a dealer by virtue of S. 20 of the kerala General Sales-Tax Act, 1963 ('the Act' ). In that capacity the father was treated as a defaulter in respect of the amounts due from the deceased son and in respect of which notices of demand had been issued to the latter. THE amount due as per the demand notices was Rs. 3186. 56 in respect of the final assessment for the years 1971-72 and 1972-73 and provisional assessment for the year 1973-74. This amount was collected from the father on 29-10-1975. Subsequently assessment for the year 1973-74 was finalised and Ext. P3 dated 25-10-1976 was passed showing the balance due from the assessee as nil.

(2.) NEVERTHELESS the petitioner has approached this Court for a writ of certiorari to quash Exts. P1 to P3 notices and Ext. P5 final order of assessment for the year 1973-74 issued to the petitioner in his capacity as the legal representative. It is contended that the tax liability of the deceased could not validily be fastened on the father. The petitioner further seeks a writ of prohibition to restrain the respondents from proceeding against the petitioner for realisation of any arrears which might be due from the deceased son and for a writ of mandamus directing the respondents to pay back to the petitioner the sum of Rs 3186. 56 paid by him towards the liabilities of his deceased son.

(3.) S. 23 (1) reads: "the tax assessed or any other amount demanded under this Act shall be paid in such manner and in such instalments if any, and within such time, as may be specified in the notice of demand, not being less than twenty-one days from the date of service of the notice. If default is made in paying according to the notice of demand, the whole of the amount outstanding on the date of the default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax or other amount under this Act:" The effect of this provision is that a person becomes a defaulter and liable to be proceeded against only when he has failed to comply with a notice of demand. Until then, although liable to pay, he is not a defaulter and cannot therefore be proceeded against for recovery. In the present case it is not disputed that notices of demand had been served upon the son both in respect of the two final assessments for the years 1971-72 and 1972-73 and the provisional assessment for the year 1973-74. The son was thus a defaulter when he died. Proceedings for recovery could have been taken against the son during his life. The question is whether, without separate notice of demand, the father himself is liable to be proceeded against. This question would have to be answered in the negative if counsel were right in his contentions based on the observation of the Mysore High Court in (1968) 69 ITR. 401. With great respect, I am of the view that that decision turns on the interpretation of a section which is not pari materia and is therefore not applicable to the petitioner's case which is governed by the provisions of S. 20 of our Act which reads: "20. Assessment of legal representatives. Where a dealer dies his executor, administrator, or other legal representative shall be deemed to be the dealer for the purposes of this Act, and the provisions of this Act shall apply to him in respect of the business of the said deceased dealer, provided that, in respect of any tax. fee or other amount assessed as payable by any such dealer or levied on him or any tax, fee or other amount which would have been payable by him under this Act if he had not died, the executor, administrator or other legal representative shall be liable only to the extent of the assets of the deceased in his hands "