The legal representative is liable to pay tax and penalty out of the deceased's property as per the provisions of the Bihar Finance Act, 1981.

S.K.Katriar, J.

1. The petitioner has preferred, this writ petition with the prayer to quash the order dated 28.10.94 (Annexure-3), passed by the learned Deputy Commissioner of Commercial Taxes, Muzaffarpur, whereby penalty in terms of Section 20(1) of the Bihar Finance Act, 1981 (hereinafter referred to as the Act), read with Bihar Sales Tax Rules, 1983 (hereinafter referred to as the Rules) has been imposed for submitting incorrect returns.

2. According to the writ petition, it is with respect to the period 1992-93. Basudeo Prasad, the petitioners late husband, was the owner and sole proprietor of a business which was run in the name and style of Shiv Shakti Dal & Oil Mills, Imamganj, Muzaffarpur, and was registered as a dealer under the Act and the Rules. Basudeo Prasad died on 17.6.94, leaving behind the petitioner, the widow, as his heir and legal representative. It is further stated in the writ petition that the petitioner had forwarded her communication dated 22.9.94, to the Deputy Commissioner, Commercial Taxes, Muzaffarpur Circle, informing him that the business of the petitioners husband had been closed, and the registration certificate was surrendered. This was followed by receipt of notice dated 1.10.94 (Annexure-1), calling her upon to show cause as to why the returns submitted by the noticee had not disclosed the purchase made from Amrit Vanaspati Company Limited, Ghaziabad, and its sale, and tax under the Act, and penalty in terms of Section 20(1) of the Act, be not imposed on her. She had shown cause by her petition accompanied with the affidavit marked Annexure-2 to the writ petition, wherein the stand was taken that the business had been closed on 1.9.94, and the registration certificate had been surrendered. It was further stated in the application that her husband had informed her while he was alive, that he had not received any such consignment from Amrit Vanaspati. On a consideration of the materials before him, the learned Deputy Commissioner passed the impugned order imposing penalty of Rs. 50,040/- in terms of Section 20(1 )(A) of the Act. Hence this writ petition.

3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that there was no notice to the petitioner and, therefore, the impugned order should not have been passed against her. He further submits that, after the death of her husband followed by surrender of the registration certificate, no penalty can be imposed on her. After demise of the owner, no order in assessment proceeding could be passed, against the deceased owner, nor the widow can be proceeded against. He relies on the provisions of Sections 20 and 38 of the Act. He also relies on the following judgments of Division Bench of the Bombay High Court:

(i) Kishenchand Tolaram V/s. Ghanekar (1961)12 STC 562

(ii) Commissioner of Sales Tax V/s. Modern Mercantile Works (1976)38 STC 372

4. Learned Government Counsel has supported the impugned order. He submits that the petitioners late husband was the sole owner of the business and she is the heir and legal representative. Therefore, she is liable to pay in terms of Section 38 of the Act. He also submits that tax is the first charge in terms of Section 29 of the Act. He also relies on Rules 19 and 20 of the Rules. He further relies on the judgment of the Full Bench of Andhra Pradesh High Court in State of Andhra Pradesh V/s. Godavarthi Kasiviswanadham [(1970)25 STC 1].

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioners late husband was the sole owner and the proprietor of Shiv Shakti Dal & Oil Mills, and the petitioner is the heir and the legal representative in the capacity of the widow. It relates to the period 1992-93, prior to the death of her husband. It is further the admitted position that he had filed returns in his lifetime and was pending considering on the date of his demise. T