MIRZAMUL PRABHU DAYAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) In Miscellaneous Judicial Case No. 411 of 1952 the assessment of sales tax upon the petitioner is for the period from the 1st of April, 1946, to the 31st of March, 1947, and in Miscellaneous Judicial Case No. 412 of 1952 the assessment of sales tax is for the period from the 1st of April, 1947, to the 31st of March, 1948. It is said that the petitioner Mirzamul Prabhu Dayal was carrying on a large business at Barh and that the business was not registered under Section 7 of the 1944 Act. An officer of the Sales Tax Department made a surprise visit to the petitioner's shop at Barh on the 7th of February, 1948, and seized a number of account books and other papers. In spite of several opportunities given to the petitioner, all the relevant account books were not produced and so the Sales Tax Officer made an assessment to the best of his judgment for both the assessment periods in question. A penalty under Section 10 (5) was imposed upon the petitioner in Miscellaneous Judicial Case NO. 411 of 1952 and a penalty was imposed under the corresponding section of the 1947 Act upon the petitioner in Miscellaneous Judicial Case No. 412 of 1952. As directed by the High Court, the Board of Revenue has stated a case upon the following questions of law in Miscellaneous Judicial Case No. 411 of 1952 :-

(2.) In Miscellaneous Judicial Case No. 412 of 1952 the Board of Revenue has stated a case upon the following question of law :- Whether in the circumstances of the case the assessment of tax upon the petitioner under Section 13 (5) of the 1947 Act is legal and valid?

(3.) We shall, in the first place, deal with the reference in Miscellaneous Judicial Case No. 411 of 1952. As regards the first question, the argument on behalf of the petitioner is that the assessment should have been made under Section 10 (5) of the Act upon the firm of Mirzamul Ram Pratap, located at Jamui, and not upon the firm of Mirzamul Prabhu Dayal, who is the petitioner in this case. It was pointed out on behalf of the petitioner that the Board of Revenue has found that the Barh business of Mirzamul Prabhu Dayal was not an independent business as the petitioner contended, but that the Barh business was financed by the Hindu joint family who also owned the Jamui business carried on in the name of Mirzamul Ram Pratap. It has been observed by the Board of Revenue that the Barh business was "an extension of the Jamui business." The argument of the petitioner is based upon this finding of fact recorded by the Board of Revenue. It was contended that the dealer was the Jamui firm of Mirzamul Ram Pratap and the assessment should be made upon that firm and not upon the petitioner. We are unable to accept this argument as correct. It is the admitted position that the Hindu joint family was carrying on the Jamui business and also the business at Barh. The Hindu joint family consisted of the father, Babu Mirzamul, and his two sons, Prabhu Dayal and Ram Pratap. It is true that the business at Jamui was registered by the Sales Tax Authorities under the name of Mirzamul Ram Pratap. It was contended on petitioner's behalf that the name of the business at Barh was different, namely, Mirzamul Prabhu Dayal but it is not disputed that the Hindu joint family was the owner of both the Jamui business and the Barh business and, therefore, the Hindu joint family was the dealer carrying on both the businesses within the meaning of Section 2(c) of the Bihar Sales Tax Act, 1944. Under this section, a "dealer" means "any person who carries on the business of selling or supplying goods in Bihar whether for commission, remuneration or otherwise and includes any firm or a Hindu joint family and any society, club or association which sells or supplies goods to its members". It is not contended by the petitioner in this case that there are two different partnerships under the Partnership Act, carrying on the business at Jamui and at Barh. On the contrary, it is admitted that the businesses at Jamui and Barh were Hindu family businesses and that the owner of both the businesses was the same Hindu joint family consisting of Mirzamul and his two sons Prabhu Dayal and Ram Pratap. We are, therefore, satisfied that the dealer of the Jamui business is identical with the dealer of the Barh business and the assessment under Section 10(5) has been validly made upon the petitioner in this case. It was then argued that the provisions of Section 10 (5) would not be applicable because the firm at Jamui had been registered in the name of Mirzamul Ram Pratap and the provisions of Section 10 (5) would apply only in the case of an unregistered firm. We do not accept this argument as correct. Rule 6 at page an of the Bihar Commercial Taxes Manual, Volume II, is in the following terms :-