BIBHASH CHANDRA GON Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revision case raises important questions as to the construction and validity of Section 17 of the Bengal Finance (Sales Tax) Act, 1941. One Jogesh Chandra Gon during his life time carried on a business in the name and style of "Messrs. Jogesh Chandra Gon" at 57 Clive Street, Calcutta. He was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941 and was granted a certificate of registration in Form IIA of the Bengal Sales Tax Rules. Jogesh died intestate on March 2, 1955 corresponding to the 18th Falgun, 1362 B.S. Upon his death the petitioners who are his three sons succeeded to the business. On July 5, 1956 petitioner Bibhas sent a letter to the Commercial Tax Officer intimating that Jogesh had died and upon his death the three petitioners had become the partners of the business. The Commercial Tax Officer received another letter dated November 6, 1956 signed by all the petitioners stating that as sons of Jogesh they were the only proprietors of the properties left by him. After necessary enquiries the change of ownership of the business was recorded by the Commercial Tax Officer on November 11, 1956 and the certificate of registration was amended accordingly. Before his death Jogesh in his business of Jogesh Chandra Gon became liable to pay sales tax for four quarters ending Chaitra 1361 B.S. He tiled returns after the expiry of the prescribed time. After his death the petitioners filed a revised return. By his order dated September 25, 1957 the Commercial Tax Officer assessed the amount of tax due from the dealer Messrs. Jogesh Chandra Gon and also directed the dealer to pay a penalty of Rs. 750/- for non-submission of return within time. An appeal from this order was dismissed by the Assistant Commissioner of Commercial Taxes, Burabazar Circle, by his order dated July 9, 1950 and a petition of revision under Section 20 (3) was dismissed by the Additional Commissioner, 'Commercial Taxes, West Bengal by his order dated July 17, 1959. The petitioners have moved this High Court against this order and have obtained this rule under Article 227 of the Constitution of India.

(2.) Mr. Pal appearing on behalf of the petitioners contended that the assessment was made upon a dead person and as such was a nullity. There is no substance in this contention. This point was not taken in the tribunals below and ought not to be allowed to be raised in this Court for the first time. The records of the assessment proceedings show that the petitioners in their firm name of Jogesh Chandra Gon filed a revised return of sales tax for the period of assessment, appeared before the Commercial Tax Officer, filed an appeal before the Assistant Commissioner and a revision petition before the Commissioner. The petitioners appeared at all stages of the proceedings in their business name and style of Messrs. Jogesh Chandra Gon. The assessment was made upon the petitioners in their business name and not upon the deceased Jogesh Chandra Gon.

(3.) The petitioners next contended that they are not liable to pay any sales tax or penalty in respect of the business for the year ending Chaitra 1361 B.S. during which their father Jogesh Chandra Gon alone carried on the business. The tribunals below have held that on true construction of Section 17 of the Bengal Finance (Sales Tax) Act, 1941 and the circumstances which have happened, the petitioners are liable to be assessed to the tax and penalty as if they were the registered dealer carrying on the business of Messrs. Jogesh Chandra Gon during the period in question.