JAI DAYAL Vs. DEPUTY COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution praying for the issue of a writ in the nature of mandamus directing the Deputy Commercial Tax Officer, Osmanganj, Hyderabad, to forbear from further proceedings on the basis of a notice dated gth November, 1957, served by him on the petitioner. That notice was issued by the respondent under Rule 56 of the Andhra Pradesh General Sales Tax Rules, 1957, requiring the petitioner to appear in person and to produce or cause to produce all the books of account with relevant vouchers of Messrs Jaya Dayal Roshanlal, Osmanganj, for the years 1954-55 and 1955-56. The petitioner, it is not denied, carried on business in grains with one Kanhailal under the firm name of Jaya Dayal Roshanlal, dealers in grains and commission agents. But according to the petitioner, the firm which came into existence on 26th October, 1954, was dissolved on 18th May, 1956.

(2.) THE petitioner impeaches the validity of the proceedings initiated by the notice. In the first place, he challenges the right of the respondent to assess a dissolved firm. His contention is that when the firm was dissolved on 18th May, 1956, it ceased to exist as an entity for assessment and that there is no provision under the Hyderabad General Sales Tax Act (XIV of 1950) which provides for the assessment of a dissolved firm. He says that even the service of notice on him with reference to the business of a firm that ceased to exist is bad because he no longer represents the dissolved firm. He also contends that the attempted assessment is barred by time, that the goods in which the firm dealt were not liable to sales tax and that the rules under which the notice purports to be given are ultra vires. The grounds on which the several contentions are based will be mentioned later.

(3.) IN order to consider the soundness of these contentions, it is necessary first to summarise briefly some of the provisions of the Hyderabad General Sales Tax Act. By Clause (e) of Section 2 of the Act, a "dealer" is defined as meaning "any person. . . firm. . . or any association or associations of persons engaged in the business of buying, selling or supplying goods in the. . . . State whether for a commission, remuneration or otherwise. " Section 4 of the Act provides that for every year every dealer whose turnover for the year is not less than Rs. 7,500 shall, save as otherwise provided in the Act, pay a tax at a specified rate on so much of his turnover for the year as is attributable to transactions in goods other than exempted goods. "turnover" is defined as meaning "the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration. " Vide Clause (m) of Section 2. The points of sale at which the tax is leviable are stated in Section 5. Section 10 provides that "every dealer whose probable turnover. . . for any year of assessment referred to in Section 4 is not less than Rs. 5,000. . . shall be registered under this Act. " Section 11 provides that "no person who is not registered as a dealer" is entitled to collect any amount by way of tax. Section 12 deals with the procedure to be followed by the assessing authority. Sub-section (1) of the section enacts that "every dealer whose turnover in the period of assessment referred to in. . . . Section 4, is seven thousand five hundred rupees or more in a year shall submit such return or returns relating to his turnover in such manner and within such periods as may be prescribed. " Sub-section (2) of that section says that" if the assessing authority is satisfied that any return submitted under Sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. " Sub-section (3) provides that where no return submitted by the dealer appears to the assessing authority to be incorrect or incomplete, the assessing authority may assess the dealer to the best of his judgment. By Sub-section (4), provision is made enabling the assessing authority in the alternative to assess a dealer for any year subsequent to 1951-52" as if his transactions in that year had been the same as in the previous year. " Section 13 deals with the payment and recovery of tax and other dues payable under the Act and inter alia provides that the tax assessed shall be paid in such manner in such instalments, if any and within such1 time, not being less than 15 days from the date of service of notice of assessment, as may be specified in such notice. Sub-section (2) of that section provides for the imposition of a penalty. Section 26 enables the Government to make rules "to carry out the purposes of this Act" and in particular and without prejudice to the generality of that power, such rules may provide, inter alia, by Clause (c) for "the assessment to tax under this Act of businesses which are discontinued or the ownership of which has changed "; by Clause (f) "the assessment to tax under this Act of any turnover which has escaped assessment and the period within which such assessment may be made, provided that such period shall not exceed three years from the end of the year for which the turnover was assessable "; and by Clause (k) "generally regulating the procedure to be followed and the forms to be adopted in proceedings under this Act. " By Sub-section (5) of this section, "all rules made under this section shall be published in the Jareeda and upon such publication shall have effect as if enacted in this Act. "