COMMISSIONER OF SALES TAX Vs. ROWE AND ROWE

JUDGEMENT

(1.) The facts which have given rise to the above four References are that one B.R. Rowe was, prior to February, 12, 1963, carrying on business under the trade name and style of Messrs Rowe and Rowe, as the sole proprietor thereof. For the assessment periods April 1, 1954 to March 31, 1955, April 1, 1955 to March 31, 1956, April 1, 1956 to March 31, 1957 and April 1,1957 to March 31, On March 25, 1963 a notice was served upon the said Rowe to show cause why his assessment for the period April 1, 1954 to March 31, 1955 should not be revoked. On December 2, 1963 the saied Rowe entered into an agreement with one P. G. Bhuleskar, an employee of his, to carry on the said business of Messrs Rowe and Rowe in partnership with him. On January 9, 1964 the said Rowe died, and information of his death was given by the said Bhuleskar to the Sales Tax Officer by his letter dated January 28, 1964. After the death of the said Rowe a notice was served upon the said Bhuleskar on March 2, 1964 to show cause why the assessment made against the said proprietary concern of Messrs Rowe and Rowe should not be reopened for the period April 1, 1955 to March 31, 1956. On July 3, 1964 two notices were served upon the said Bhuleskar to show cause why the said assessments made against the proprietary concern of Messrs Rowe and Rowe for the periods April 1, 1956 to March 31, 1957 and April 1, 1957 to March 31m 1958 should not be reopened. On July 31, 1964 the Sales Tax Officer passed an order reassessing the amount of tax due from the said proprietary concern of Messrs Rowe and Rowe for the period April 1, 1954 to March 31, 1955. Orders of reassessment in respect of the three subsequent periods were passed by the said Sales Tax Officer on November 20, 1964. Against these orders of reassessment appeals were filed to the Assistant Commissioner of Sales Tax, which appeals failed. Against the orders dismissing the appeals revision applications were filed before the Deputy Commissioner of Sales Tax, which too failed, and thereupon the Respondents went in further revision to the Tribunal.

(2.) At the hearing before the Tribunal the Respondents applied to be allowed to raise an additional ground that as on the date of the orders of reassessment the sole proprietor of the said Messrs Rowe and Rowe was dead, no order of reassessment could be passed, inasmuch as the Bombay Sales Tax Act, 1953, did not contain any machinery for assessment of tax due from a dead person. The application for raising this additional ground was allowed by the Tribunal. On behalf of the Department reliance was placed on the provisions of S. 19(1) of the Bombay Sales Tax Act, 1959 as authorizing the Department to reassess the tax due from the said Rowe. The tribunal held that the provisions of the Bombay Sales Tax Act, 1953 applied to the reassessment in respect of the said four periods by reason of the saving sections in the Bombay Sales Tax Act, 1959 namely, S. 77 and 78 and that S. 19 of the Bombay Sales Tax Act, 1959 was not an enabling provision with respect to proceedings arising under the Bombay Sales Tax Act, 1953, in so far as they were not specifically saved by S. 77 of the 1959 Act. It further held that the phrase "earlier law" used in clause (a) of sub-S. (1) of S. 19 only referred to the liability of a person who continued the business of a dead dealer where the liability of the deceased dealer had already accrued under an earlier Act.

(3.) Arising out of this judgment and orders of the Tribunal, the following question of law has been referred to us for our determination in each of the above References. "Whether the Tribunal was correct in law in holding that the Respondents' case was not governed by the provisions of S. 19 of the Bombay Sales Tax Act, 1959, notwithstanding the fact that the deceased dealer, liable to pay tax under the Bombay Sales Tax Act, 1959, died on January 9, 1964, that is after the Bombay Sales Tax Act, 1959, came into force ?" Sales Tax Reference No. 64 of 1976 is in respect of the period April 1, 1954 to March 31, 1955, Sales Tax Reference No. 7 of 1974 is in respect of the period April 1, 1955 to March 31, 1956, Sales Tax Reference No. 8 of 1974 is in respect of the period April 1, 1956 to March 31, 1957, and Sales Tax Reference No. 9 of 1974 is in respect of the period April 1, 1957 to March 31, 1958.