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TMI Blog1973 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... ict of Patna but outside Patna town. It appears, in or about the year 1932, the Hindu undivided family opened a shop at Muradpur in the town of Patna. The Bihar Sales Tax Act, 1944, came into force sometime in the year 1944, according to which a dealer was required to take out a sales tax registration certificate. The business of the Hindu undivided family was carried on under the name and style of Doma Sao Kishun Lal, both at Patna and Dinapore. But it appears, as I shall presently show hereinafter, that the firm had obtained two sales tax registration certificates, one for the Patna business bearing registration certificate No. PT-II-236, and another for the Dinapore business, the registration certificate of which bore the number PT-I-6. 3.. The assessment proceedings were started against the dealer, Doma Sao Kishun Lal, carrying on business at Patna for assessment of sales tax for six quarters, namely, the last two quarters of the financial year 1945-46 and the four quarters of 1946-47. A sum of rupees nine thousand and odd seems to have been assessed as tax payable by Doma Sao Kishun Lal. This sum, according to the petitioner's case, which does not seem to be in dispute, was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ application. This new partnership was constituted on and from 14th April, 1955, for which a formal partnership deed was executed on 18th April, 1956. 6.. It may be mentioned here that sales tax was assessed against Doma Sao Kishun Lal, partnership-firm carrying on business at Patna only, for the year 1949. Its dues were sought to be realised from the partnershipfirm Doma Sao Mohan Lal. Realisation of tax dues from Doma Sao Mohan Lal was challenged In M.J.C. No. 1157 of 1960. This application was dismissed by a Bench of this Court of which I was a member, by judgment and order dated 24th January, 1963. A copy of this judgment is annexure C to this writ application. In that case, It was held that so far as the Patna business was concerned, Doma Sao Mohan Lal was the transferee of the Patna business of partnership, Doma Sao Kishun Lal, within the meaning of section 20 of the Bihar Sales Tax Act, 1947. Reference to section 20 was made in that case, because the assessment against Doma Sao Kishun Lal was under the 1947 Act. 7.. For realisation of tax dues on the basis of the revised assessment when a certificate proceeding was started against the petitioner-firm, objection under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt did not hold an investigation in the present case whether the appellant was a transferee to whom the ownership of the entire business of the Hindu undivided family which was assessed to tax was entirely transferred. In the absence of such a finding, the judgment of the High Court cannot be sustained." In the light of the observations of the Supreme Court it has to be found out whether the petitioner is liable for payment of the sales tax dues in question. 9.. Section 17 of the Bihar Sales Tax Act, 1944, provides: "When the ownership of the business of a registered dealer is entirely transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee as If he were the registered dealer; and the transferee shall within thirty days of the transfer apply for registration under section 7." If the sales tax dues in this case related to the Patna (Muradpur) business and if the ownership of that business was entirely transferred to the petitioner-firm, then the dues will be payable by the transferee, namely, the petitioner. The mere fact that the revised assessment was made In the year 1962 will not obliterate the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PT-II-236 of Patna Urban Circle. 9.. That following in the wake of the separation, referred to above, the erstwhile coparceners, who became joint owners of the shop at Patna, formed themselves into a partnership-firm to carry on the business which was hitherto being carried on by the H.U.F. (since disrupted) in the same name and style of Messrs. Doma Sao Kishun Lal. A deed of partnership was accordingly executed on 26th September, 1946, which was later substituted by a registered deed of partnership dated 22nd April, 1947 (registered on 17th May, 1947), executed by (i) Mohan Lal as karta of his joint family consisting of himself and his two minor sons then existing, i.e., Bhola Nath and Gopalji, (ii) Ajodheya Prasad, son of Kishun Lal as karta of his joint family consisting of himself and his son, who were then minors and (iii) Lakshmi Prasad, son of Biri Lal. Jamuna Prasad, then a minor, was also admitted to the partnership." In paragraph 17 of the writ application the petitioner has stated: "That on 18th December, 1947, the H.U.F. firm of Messrs. Doma Sao Kishun Lal, referred to above, had been assessed to sales tax under section 10 of the Bihar Sales Tax Act, 1944, by Shri D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I have already disposed of, learned counsel for the petitioner endeavoured to attack the revised assessment order and the order of the Board of Revenue contained in annexure A1. I do not enter into the legality of these orders as they were not challenged in the writ petition and it is too late and not open to the petitioner to challenge them in argument. Learned counsel for the petitioner placed reliance on two decisions, namely, Jagadishchandra F. Modi v. Joint Commercial Tax Officer, Harbour Division II, Madras, and Others[1972] 29 S.T.C. 144. and Ammonia Supply Corporation v. Joint Commercial Tax Officer, Rattan Bazaar Division, Madras[1972] 29 S.T.C. 356. The former is not relevant at all as it concerns different kinds of provisions in respect of different points under the Income-tax Act as to the distribution of assets after dissolution of a partnership. The case of Ammonia Supply Corporation(2) is clearly distinguishable as there was no transfer of the ownership of the business in that case. Under section 27 of the Madras General Sales Tax Act, 1959, liability was sought to be fastened on the petitioner before the High Court on the ground that there was sufficient identity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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