SRI LAKSHMI NARAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) D. S. SINHA, J. Heard Sri Rakesh Kumar Agarwal, learned counsel for the petitioner and Sri A. C. Tripathi, learned Special Counsel representing the respondents. An amount of Rs. 1,19,200 by way of sales tax for the assessment year 1982-83 payable by M/s. Gurjar Transport Company, Agra, hereinafter called "the company", under section 28b of the U. P. Sales Tax Act, 1948, hereinafter called "the Act", is sought to be recovered from the petitioner. The petitioner was served with the notice dated February 19, 1988 calling upon him to pay the said amount. A copy of the aforesaid notice is annexure 4 to the petition. The petitioner has filed this petition impugning the aforesaid recovery from the petitioner. The case of the petitioner, as set out in the petition, is that he is the owner of trucks Nos. URT 2675 and RJD 7945 and gave these trucks to the company on hire. Further pleading of the petitioner is that he is neither the owner nor partner of the company. He had only, given his trucks on hire to the company and apart from that he had no concern with the company, whatsoever. The petitioner contends that no assessment order has been passed against him. He also asserts that no demand notice was ever served on him. On the aforesaid pleadings, the petitioner submits that impugned recovery cannot be effected against the petitioner. The suggestion on behalf of the respondents made in counter-affidavits is that the petitioner is partner of the company and against the company there is an assessment order dated March 28, 1987, a photostat copy of the certified copy whereof is annexure 1 to the petition. On the basis of this suggestion the learned special counsel of the respondents contends that the petitioner is liable to pay the amount sought to be recovered from him. It cannot be gainsaid that in the absence of any assessment order against the petitioner, under section 7 of the Act, no tax can be recovered from the petitioner but if the petitioner is proved to be a partner of the company, as asserted by the respondents, he would be liable to pay the tax sought to be recovered from him. The question as to whether the petitioner is, in fact, a partner of the company, cannot be decided by us in the proceedings under article 226 of the Constitution of India. It can better be decided by the Sales Tax Officer, Sector-2, Agra, the respondent No. 3 on the basis of the evidence already available before him or further produced by the petitioner. We find that upon the receipt of the notice dated February 26, 1988 the petitioner filed an objection supported by an affidavit before the respondent No. 3 contending that, inter-alia, he was not the owner or partner of the company. He had no concern with the company whatsoever except the fact that he had given his trucks to the company on hire, therefore, he was not liable to pay the tax payable by the company. There is no material before us to suggest that the objection filed by the petitioner has been disposed of either way. We, therefore, presume that the objection filed by the petitioner is still pending before the respondent No. 3. On the facts and circumstances stated hereinbefore, we are of the view that it would be appropriate to direct the respondent No. 3 to decide the objection of the petitioner after permitting him to produce such evidence as he may desire within 4 months from the date of production of a certified copy of this judgment before him and it is so ordered. In the meantime the impugned recovery against the petitioner shall remain stayed. The petition is disposed of accordingly. .