TMI Blog1961 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned assessments were made, there was no Hindu joint family in existence and the fact that no such family existed on the date of the assessments is what is urged before us in support of the contention that the Commercial Tax Officer could not have made any assessments upon anyone when he made them. That the dealer K.S. Subbarayappa and Sons was considered to be a joint Hindu family and treated as such during the time the transactions constituting the taxable turnover took place, is clear from the impugned orders of assessments. It is also obvious that the Commercial Tax Officer, when he made the assessments was aware of the fact that in that family there had been a partition and that the members of that family had after winding up the family business, commenced a partnership business under the same name and style under which the family was carrying on its business. But, he found no impediment in the making of assessments on the dealer who had carried on the transactions constituting the turnover. It is urged on behalf of the petitioner, which does not state in its affidavit whether it has presented this application in its capacity as a firm which was created by the quon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority.- (1) Every dealer whose turnover 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. (2) (a) 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. (b) If no return is submitted by the dealer under sub-section (1) before the date prescribed or specified in that behalf or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall assess the dealer to the best of his judgment: Provided that before taking action under this clause the dealer shall be given a reasonable opportunity of proving the correctness and completeness of the return submitted by him." It seems to me that the argument presented that a dealer upon whom an assessment may be made under section 12 should be one who continues to carry on the business of buying or selling goods at the time when the order of assessment is made on him, does not rest on firm foundation. The words "carries on" occurring in sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade his assessments, the dealer which carried on the business during the assessment year had disappeared or had ceased to exist, and that therefore, there was no one upon whom the Commercial Tax Officer could make an assessment? In support of the view that that contention is available to the quondam members of that Hindu joint family, Mr. Srinivasan submitted that the Hindu joint family which was the dealer in this case was a distinct legal entity from its members, and that that entity disappeared with the partition made between its members. He has asked our attention to the analogy which exists between a case where an assessee under the Income-tax Act dies before his income is assessed, in which case, as pointed out by their Lordships of the High Court of Bombay in Commissioner of Income-tax v. Ellis C. ReidA.I.R. 1931 Bom. 335., no assessment could be made upon the legal representatives of the deceased assessee. I find it difficult to accede to the contention that if a Hindu joint family carries on the business of buying and selling goods and is therefore a dealer as defined by section 2(d) of the Act, a partition in that family can bring into existence a situation in which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e persons who are or were its members. It is a well recognised rule of Hindu law that the liability of a Hindu joint family to pay its debts is unaffected by a partition between its members and if that is the correct principle, it is difficult to understand how the liability of a Hindu joint family to pay sales tax in respect of its turnover can be brought to an end by a partition made after the liability is incurred and before an assessment is made by the Commercial Tax Officer. Section 3 of the Sales Tax Act which imposes sales tax on the turnover of a dealer makes a joint family liable to pay tax if it is the dealer, and the members of that family cannot, by bringing about a partition as between themselves before an assessment is made, escape from that liability to pay the tax due from the family. In the case of a Hindu joint family, which is a dealer under the Sales Tax Act, its members are the real dealers and at the stage of assessment, whether the family exists without there being disruption of the family status or whether a partition has taken place in that family, it is, in my opinion, within the competence of the Commercial Tax Officer to make an assessment under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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