M. VENKATACHALAPATHI Vs. THE DY. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THE petitioner submits that he is the eldest son of 3rd wife of one M. Laxmaiah. Petitioner got younger brother namely Kasi Viswanath. Father of the petitioner died in the year 1973. He executed a registered Will in the year 1972, bequeathing the property to his son. In terms of the Will, 1/3rd portion of house in Door No. 10/317 was bequeathed to the petitioner and 2/3rd was given to other brothers including step -brothers of the petitioner. House in Door No. 11/124 was given to the petitioner and houses in Door Nos. 11/125 and 11/126 were bequeathed to the younger brother of petitioner. After the death of the father of petitioner, the petitioner, his younger brother and his mother were residing together. In the year 1979, a partnership Firm was formed in the name of "M/s. Hampinath & Company'. The partners of the Firm were, Muthyala Hampinath Gupta, who was the Managing Parmer, Muthyala Adi Lakshmamma and Muthyala Ratnamma. The petitioner was added as a minor partner and according to the terms and conditions, the petitioner, who was the minor partner, was entitled to 20% profits of the Firm. Petitioner had no knowledge about the inclusion of his name in the above partnership firm. Other partners were closely related to the petitioner, therefore it appears that the petitioner's name was added as minor partner to give him benefits of the Firm. The mother of the petitioner was in ill -health and she died in 1982. She also did not have any knowledge about the inclusion of her name in the partnership firm.

(2.) THE firm was dealing with sale in goods and was also carrying on some commission business. The firm was discontinued in the year 1984. The partners of the firm obtained loans from various persons and they did not pay them. Some of the creditors approached the petitioner in January, 1987 and demanded to discharge the debts of the Firm. Then only the petitioner came to know about the inclusion of his name in the Firm. After enquiry, the petitioner came to know that his name was included as 4th partner in the Firm. Firm was not continued after 1984. The petitioner was entitled to profits of 20% according to the terms and conditions of the Partnership Deed and the petitioner filed a suit being O.S. No. 154 of 1987 on the file of District Munsif, Guntakal in February, 1987 for dissolution of the partnership Firm and to produce the accounts. This suit was decreed on 20th April, 1988. Other partners did not submit the accounts. The petitioner filed I.A. No. 282 of 1988 in O.S. No. 154 of 1987 to appoint a Commissioner and pass preliminary decree. Same was allowed and the Commissioner seized the account books from the business premises and the application is still pending.

(3.) PETITIONER submitted that creditors of the Firm had filed I.P. No. 8 of 1987 against other three partners of the Firm, before Sub -Court, Gooty. The petitioner came to know that the sale notice was issued by the respondent in Anantapur District Gazette on 25.02.1992 and the Gazette was communicated to the Secretary, Kirana Dealers Association, Uravakonda. Petitioner came to know about the notification through the Association, only on 08.05.1992. He secured a copy of the notification and challenged it in the Writ Petition. In the notification, it is stated that on 14th June, 1989, the landed property of the petitioner has been attached and taken under management under Section 28 of Act II of 1964 and the Assistant Commercial Tax Officer, Guntakal was appointed as agent to have charge of it. The impugned notice states that the property had to be auctioned on 19.05.1992 for recovery of the taxes of Rs. 21,35,739 -52 Ps. In the notification, it is mentioned that the petitioner is one of the partners of 'M/s. Hampinath & Company', Guntakal. Door Numbers 11/125 and 11/126 belong to the petitioner, who was not a partner in the Firm and the petitioner has no share in those houses, therefore it is stated that the respondent could not attach the properties put for auction. House in Door No. 10/317 (1/3rd portion) and house in door No. 11/124 belong to the petitioner and are being subjected to auction. It is contended that the respondent has no power or jurisdiction to attach and auction the properties of a person who was a minor and was only included as a partner to have a share in the benefits of the Firm.