TMI Blog1959 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... d Co., to sales tax for the year 1950-51 in a sum of Rs. 2,551-8-5. Similarly on 26th March, 1955, he assessed the firm to sales tax for the year 1951-52 in a sum of Rs. 7,053-11-5. The petitioner represented to the Sales Tax Authorities that in view of the fact that the firm had been dissolved in 1952 sales tax should be assessed on and collected only from Kurshidulla Sahib. His objections however were overruled, and the appeal he preferred to the Special Commercial Tax Officer was dismissed. On 6th January, 1959, the Special Deputy Tahsildar for sales tax collections served a notice on the petitioner threatening to attach and sell his properties in case he failed to pay the arrears claimed within 3 days thereafter. The Village Munsif of Puzhal also served a notice on the petitioner the same day under the Madras Revenue Recovery Act, 1864. The petitioner has, therefore, come to this Court for the issue of an appropriate writ to prohibit the Collector of Chingleput, the Special Deputy Tahsildar and the Village Munsif from taking any steps to recover the amounts claimed from him. It should be added that out of the amounts claimed by the department, the petitioner has paid in all R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by dying, and I must confess that I do not myself see any intelligible reason why when tax is once charged upon a subject in respect of a period during which he was alive and enjoying the benefits of the proceeds of taxation, he should escape liability by dying before the tax has been assessed or paid. But one has to look at the rest of the Act to see whether there are any appropriate provisions for collecting tax from the estate of a deceased person..........These are, I think, the only material provisions of the Act. It is to be noticed that there is throughout the Act no reference to the decease of a person on whom the tax has been originally charged, and it is very difficult to suppose the omission to have been unintentional. It must have been present to the mind of the Legislature that whatever privileges the payment of income-tax may (1) [1951] 2 S.T.C. 53. (2) [1931] 5 I.T.C. 100. confer, the privilege of immortality is not amongst them. Every person liable to pay tax must necessarily die and, in practically every case, before the last instalment has been collected, and the Legislature has not chosen to make any provision expressly dealing with assessment of, or recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made, is one of general application." That principle was adopted (1) [1957] 32 I.T.R. 411. (2) [1950] 2 All E.R. 540 at page 548. in Recols (India) Ltd., In re(1), by a Bench of the Calcutta High Court. In the present case, therefore, there was no debt properly so called payable on account of general sales tax by the firm to the Government. (4) The Income-tax Act contains clear and express provisions to meet contingencies of this kind. Vide section 44, which enacts that where any business carried on by a firm or association of persons has been discontinued, or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partners of the firm shall be jointly and severally liable to assessment under Chapter IV. (5) No such provision has been made in the General Sales Tax Act. a lacuna clearly exists, and, as explained in Ellis C. Reid v. Commissioner of Income-tax, Bombay(2), in construing a taxing Act the Court is not justified in straining the language in order to hold a subject liable to tax. A Bench of the Allahabad High Court has ruled directly on this point. In Jagat Behari Tandon v. Sales Tax Officer, Etawah(3), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other mutual rights and obligations of the partners continue notwithstanding the dissolution so far as may be necessary to wind up the affairs of the firm. Now, ascertaining the liability of the firm and making arrangements to settle them is a necessary part of the various processes involved in winding up the firm. The liability to pay sales tax having already accrued, its quantification and payment can properly be regarded as part of the process of winding up of the firm. Kurshidulla Sahib who was a partner of the firm had the requisite authority to represent the petitioner for this purpose. The tax was therefore properly charged and the amount claimed by the Department is due. In Deputy Commissioner of Commercial Taxes v. Bakthavatsalam Naidu(1), a Bench of the Andhra High Court ruled: "Under the Madras General Sales Tax Act a firm is a 'dealer' and therefore in respect of a transaction done by a firm, which was in existence during the assessment year but was dissolved subsequently, it is the firm that is to be assessed to tax and not any of its partners in their individual capacity." Another decision that was cited before me is that reported as R.D. Fernandes, In re(2). In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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