JUDGMENT

GOSWAMI, J. :— These are two appeals on certificates by the High Court of Allahabad from the judgments and orders of March 17, 1970.

2. The facts may briefly be stated :

The appellant Homely Industries is registered under the Uttar Pradesh Sales Tax Act (briefly the Act), its sole proprietor was one Rashidul Hasan. He died on December 10, 1968, leaving behind three adult sons, namely, Syed Mohd. Ibrahim, Syed Mohd. Ismail and Syed Mohd. Ilias. The business was carried on by Rashidul Hasan under the name and style of Homely Industries. At the time of his death the assessment proceedings relating to the assessment years 1960-61 and 1961-62 were pending before the Sales Tax Officer on remand from the Assistant Commissioner (Judicial), Sales Tax, in pursuance of his order dated October 26, 1966.

3. It is said that after the death of Rashidul Hasan the business was continued by the sons by forming a partnership and Nazir Husain continued as the munim and also appeared before the Sales Tax Officer in the pending proceedings.

4. On December 10, 1968,Syed Mohd. Ibrahim, as legal heir and partner, sent an application through Nazir Husain informing the Sales Tax Officer, Kanpur, in connection with the two assessment proceedings that his father had expired on December 10, 1968 and that it was not possible for them to proceed with the case on that day.

5. It appears that the Sales Tax Officer during the lifetime of Rashidul Hasan had addressed a notice to Homely Industries calling upon it to appear in person or through pleader, or authorised representative on November 29, 1968 and to produce all books of accounts, cash memos, bills, receipts, bank pass-books, statement of income and expenditure and other documents which it may desire to produce in connection with the assessment. This notice was served on November 20, 1968 on the son ofthe proprietor of Homely Industries.

6. It appears that a number of adjournments were taken after the death of Rashidul Hasan. Sometimes on the application of the munim and once even on the application of the son. SyedMohd. Ismail, to enable the assessee to make an effective representation. While as many as six adjournments were granted on the application of Nazir Husan and once of the son of the deceased between19-12-1968 and 16-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex parte order of assessment was made on April 28, 1969.

7. The Sales Tax Officer initiated recovery proceedings in pursuance of the assessment orders and the demand was sought to be realised from the sons of the deceased proprietor by coercive measures. That led to two writ applications before the High Court of Allahabad. challenging the assessmentorders and the recovery certificates issued under Section 8 of the Act. The High Court rejected the applications and granted certificates under Article 133 (1) (a) of the Constitution.

8. It is contended by Mr. Manchanda on behalf of the appellant that the assessment orders are invalid as they were made against a dead person. Secondly, he submits that a proper and valid service of a demand notice is a condition precedent for fixing liability on the from whom the tax is sought to be recovered and in this case there was no service of notice on the heirs and legal representatives prior to the attempt of recovery through a coercive process.

9. With regard to the first submission, the learned counsel draws our attention to Section 7C of the Act which reads as follows :-

"7C (1) Where a person dies, his executor, administrator other legal representative shall be liable to pay out of the estate of the deceased person, to the extent to which the estate is capable of meeting the charge, the tax assessed as payable by such person, or any penalty which would have been payable by him under this Act, if he had not died.

(2) Where a person dies before the service upon him of the notice, if any, issued in pursuance of Section 7, his