9911796707
Advanced Search 
TMI Blog1993 (4) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... esh was registered as a dealer under the Kerala General Sales Tax Act, 1963 ("the Act" for short) on April 1, 1986 and is doing its business in Thrissur in the same name and style of City Jewellery. 2.. The erstwhile firm of Vasudevan and Anto owed a substantial amount of Rs. 2,75,345.70 by way of sales tax, surcharge and penal interest for the two years 1972-73 and 1973-74, the payment of which had been defaulted. The assessing authority therefore initiated proceedings for recovery of the amount under section 23(2) of the Act and the Revenue Divisional Officer, Thrissur, issued notice calling upon the City Jewellery to make payment of the amount due. The amount not having been paid, the jewellery items in the shop, City Jewellery, were at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings against Vasudevan, that all the jewellery items in the new firm, City Jewellery were seized and taken away, and proclaimed for sale. The amount sought to be recovered is due only from the partners of the erstwhile firm, including Vasudevan. The question is whether the movable properties of the new firm are liable to be attached, seized and removed for recovery of the dues of one of its partners. 5.. The liability of Vasudevan for the arrears of tax of the old firm of City Jewellery cannot be disputed, in the light of section 21A of the Act. The only question is whether the modus operandi adopted for the realisation of the dues, by seizure and removal of the movables of the new firm is legally permissible. 6.. In Addanki Narayana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous that during the subsistence of the firm, no partner can predicate that he has got a particular definite share in any asset of the firm. While the partners are co-owners or joint owners of the assets of the firm, that does not mean that each of them has got a definite predicated share in each of the assets. Much will also depend upon the state of accounts between the partners. In many cases, it may be impossible to say what the share of the partner is at a given point of time, whether the firm is indebted to him or whether he is indebted to the firm [Jagannath Raghunathdas v. Emperor AIR 1932 Born 57, Bhuban Mohan Das v. Surendra Mohan Das AIR 1951 Cal 69 (FB)]. When a partner has thus no definite assignable interest in any item of partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment of the partner's share in the partnership property. The proper procedure to follow for realisation of a person's dues by proceeding against the property of a firm of which he is a partner is as laid down in Order 21, rule 49(2) of the Code of Civil Procedure, or in rule 32 of Schedule II of the Income-tax Act, 1961. 7.. A similar situation arose in Mohamed Sulaiman & Co. v. State of Madras [1965] 16 STC 571, where it was held by the High Court of Madras that, where a person happens to be a common partner in two firms, the State, while realising the arrears of sales tax due from one of the firms or from him as a partner thereof, was not entitled to seize the movable properties of the other firm, of which also he was a partner, because ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
