TMI Blog1970 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... m?" Sri Sampat Ram, the assessee in this case, was a partner of the firm which carried on business in the name and style of M/s. Mangal Sen Sita Ram. The firm was dissolved on 21st December, 1964. In respect of the assessment years 1961-62 to 1964-65 the firm was assessed to sales tax which was in arrears. Proceedings for the recovery of the arrears were initiated and tax was sought to be recovered from the assessee by serving upon him a warrant of arrest by the kurk-amin. The assessee made a representation to the Sales Tax Officer to withdraw the recovery proceedings against him but this request of the assessee was refused. Thereupon the assessee filed a revision under section 10 and contended before the Judge (Revisions) that no recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax of a dissolved firm, etc.-(1) Where a dealer is a firm or association of persons or a joint Hindu family, and such firm, association or family has discontinued business- (a) tax including penalty, if any, payable under this Act by such firm, association or family upto the date of such discontinuance may be assessed and determined as if no such discontinuance had taken place; and (b) every person who was at the time of such discontinuance a partner of such firm or a member of such association or family shall, notwithstanding such discontinuance, be liable severally and jointly for the payment of the tax assessed and penalty imposed and payable by such firm, association or family whether such assessment is made or penalty is imposed pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry partner of a dissolved firm has to be treated to be a dealer, a fresh notice of demand should be served upon a partner before taking proceedings against him for the recovery of the tax under section 8. The Judge (Revisions) has not properly understood the import of the legal fiction according to which every partner shall be treated to be a dealer. It does not mean that every partner is to be treated to be a dealer distinct and apart from the firm which in fact is the dealer liable to pay the tax. The true intention behind clause (b) appears to be to treat every partner to be a dealer so that if the tax liability of a dissolved firm is not paid, every partner shall be deemed to be in default and can be proceeded against without any fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. The Supreme Court repelled that contention by saying that "the phrase 'other person liable to pay' in section 29 should be construed as 'other person liable to pay under the Income-tax Act' and the liability cannot, therefore, be construed with reference to the Partnership Act or any other statute. A partner of an unregistered firm does not fall within the language of section 29 of the Act, for the liability of the partner to pay is not imposed on account of any provision of the Income-tax Act itself." It is difficult to understand as to what assistance the learned counsel derives from that case which was decided with reference to the particular provisions of the Income-tax Act under which an unregistered partnership is a separate asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deceased. There is no legal fiction under which the legal representative can be treated to be an assessee in default automatically. It is under these circumstances that a Division Bench of this court held that before a recovery proceeding could be launched against a legal representative of a deceased person, a notice of demand is necessary to be served upon him so as to enable him to pay up the dues in accordance with the notice of demand. That case is, therefore, clearly distinguishable. For all these reasons we answer the question in the negative in favour of the Commissioner of Sales Tax and against the assessee. The Commissioner of Sales Tax is entitled to the costs which we assess at Rs. 100. The counsel's fee is also assessed at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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