TMI Blog2021 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... hile proprietary concerned by name M/s.Gomukhi Charma Kendra - It clearly shows that there was a transfer of business in favour of the partnership concerned. Therefore, there can be no question that the petitioners not being made liable to pay for arrears of tax of the proprietary concern of Mr.K.Y.Gaitonde. However, they are liable only to the extent of the assets that were transferred on the date of execution of the partnership deed dated 29.03.2002 as it is evident from a reading of Section 27 of the TNGST Act, 1959 - it was incumbent on the part of the respondents to particularize the extent of liability to which they can be exposed while issuing notice under Section 27 of the TNGST Act, 1959. These writ petitions stand allowed with liberty to the respondents to initiate appropriate proceedings against the petitioners to the extent of assets that were transferred to the partnership firm on 29.03.2002. - W.P. Nos. 6125, 6126, 6141 & 6142 of 2006 And W.M.P. Nos. 6613, 6614, 6627 & 6628 of 2006 - - - Dated:- 9-3-2021 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.N.Inbarajan For the Respondents : Mr.M.Hariharan Additional Government Pleader CO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Y.GAITONDE 8.33% Mr. V.R.GAITONDE 50.00% Mrs. SUMAN S.JADHAV 41.67% 6. To recover tax arrears of the proprietary concern of the said proprietor Mr.K.Y.Gaitonde, the impugned notice dated 26.12.2005, have been issued to both the petitioners along with Mr.K.Y.Gaitonde. Apart from these three persons, notice has been issued to one Mrs.V.R.Gaitonde, the wife of the writ petitioner in W.P.Nos.6141 6142 of 2006. 7. The relevant portion of the impugned notice in the respective writ petitioner reads as under:- It is seen from the assessment records of Tvl.M/s.Gomuki Charma Kendra (Partnership Concern) that all the Assets and Liabilities including closing stock of the proprietary concern held by Thiru.V.R.Gaitonde, were taken over by the partnership concern on 29.03.2002. Thus the present partners of the firm Tvl.Gomuki Charma Kendra, are liabe for clearing of arrears due by the proprietary concern as they have taken the Assets Liabilities. ......... Therefore the partners of Tvl.Gomuki Charma Kendra are requested to pay the entire Arrears of Tax immediately alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that the impugned communication dated 26.12.2005 was not mere notice but an order and therefore was susceptible to revision under section 33 of the TNGST Act, 1959. 12. In any event, these recovery proceedings can be subject to a revision petition before the Deputy Commissioner under Section 33 of the TNGST Act, 1959 inasmuch as, the powers have vested with the Deputy Commissioner to not revise not only an order passed but also proceedings under the Act. It is further submitted that the petitioners, even if they had taken over the assets and liability of the erstwhile proprietary concern of the said Mr.K.Y.Gaitonde, the liability, if any, can be restricted only on the proportionate value of assets due to business transfer. 13. It is submitted that the impugned communications have not particularized the value of the assets to the extent of which, the liability can be fastened on the petitioners. The learned counsel for the petitioner further submits that as per the decision of the Hon'ble Supreme Court in State of Karnataka Vs Shreyas Paper Private Limited , 2006 (144) STC 331, while dealing with Section 15(1) of the Karnataka Sales Tax Act, 1957, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly rejected vide impugned orders dated 07.02.2006 referred to supra. 18. I have considered the arguments advanced by the learned counsel for the petitioner and the respondents. 19. There is no dispute that there was a transfer of ownership of business of the proprietary concern of Mr.K.Y.Gaitonde to the newly constituted partnership firm. The proprietary concern also which also took over the name M/s.Gomukhi Charma Kendra of the proprietary concern of Mr.K.Y.Gaitonde. Thus, all the assets including good will of the erstwhile proprietary concern of Mr.K.Y.Gaitonde was taken over by the partnership firm, which consisted of three partners namely Mr.K.Y.Gaitonde and the 2 petitioners. The respective petitioners held 50% and 41.67% of the shares in the profit and loss of the business of the partnership firm based on the credit standing in their name in the books of accounts with the proprietary concern of Mr.K.Y.Gaitonde of the erstwhile proprietary concerned by name M/s.Gomukhi Charma Kendra. It clearly shows that there was a transfer of business in favour of the partnership concerned. 20. Therefore, there can be no question that the petitioners not being made liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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