COMMERCIAL TAXES OFFICER Vs. SUSHILKUMAR KAMALKANT

JUDGEMENT

(1.) THIS order will dispose of Sales Tax References Nos. 31/76 and 168/76.

(2.) THE Commercial Taxes Officer by an order of 16 -9 -65 made an assessment of the firm Messrs. Sushil Kumar Kamal Kant, Bhadra for the years 1961 -62, 1962 -63, 1963 64 under the Central Sales Tax Act and the Rajasthan Sales Tax Act, hereinafter to be called 'the Act'. B) the said assessments a demand of Rs. 24,739.58 was created on the firm. The lax now having been paid recovery proceedings were started against the petitioner Gulabchand Malpani, one of the partners of the said firm. In pursuance of the recovery proceedings the petitioner's property was attached. The petitioner appeared before the Commercial Taxes Officer and prayed that as the firm had been dissolved recovery proceedings should be dropped. This plea however was rejected by the Commercial Taxes Officer by his order dated 2 -12 -72 on the ground that no appeal or revision had been filed against the earlier assessment orders. The petitioner was aggrieved and filed a revision against the said order of 2 -12 -72 before the Board of Revenue along with a stay application. An ad interim stay order was given on 15 -1 -73. This ad interim stay was however vacated by the learned Member of the Board on 15 -2 -73 and the stay application was dismissed. A special appeal No. 40/73 under Section 14(4A) of the Act was filed by the petitioner but the same was rejected by a Division Bench of the Board by their order of 16 -10 -73, which affirmed the order of the single Member. The petitioner resisted and filed a rectification application under Section 17 of the Act. In this he met with success and the Division Bench allowed the rectification application by its order dated 4 -10 -74 and set aside its earlier order of 16 -10 -73 and directed that the special Appeal No. 49/73 by restored to its original number and listed for regular hearing before the Division Bench. The Department apparently was dissatisfied with this order of 4 -10 -74 and filed an application under Section 15(1) of the Act on 5 -3 -75 requiring the Board of Revenue to refer the following question of law to the High Court: Whether in the facts and circumstances of the case, the Board was justified in holding on an application under Section 17 that the question of dissolution of firm can be considered even in recovery proceedings where no appeal or revision was filed against the assessment order?

(3.) LATER on the Special Appeal No. 40/73 came up for hearing before this Division Bench which allowed it on 11 -8 -75. By the said order the Division Bench of the Board set aside the order dated 15 -2 -73 of the single Member and gave directions to the assessing authority that he will make an inquiry as to whether the firm has been dissolved and, if so, proceedings under Section 9(3)(b) of the Act. The Commercial Taxes Officer again aggrieved moved an application under Section 15(1) on 5 -12 -75 asking the Board to refer the following questions of law to this Court: Whether under the facts and circumstances of the case the Board of Revenue was justified in remanding the cases for re -assessment under provisions of Section 9(3)(b) of the Rajasthan Sales Tax Act specially when the non -applicant assessee did not prefer any appeal or revision against the assessment orders dated 16 -9 -1966?