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1978 Supreme(Mad) 50
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
N.R. Kudoor, J.
Fakirchand …..Appellant(s)
Versus
Commercial Tax Officer, II Circle, Raichur …..Respondent(s)
Crl.R.P.Nos. 209 to 214 of 1977.
Decided On : 24 January 1978
M.M. Jagirdar, for Petitioner.
A.B. Patil, High Court Government Pleader, for Respondent.
The court held that the Magistrate failed to follow the procedure prescribed under Section 421(1) of the Code of Criminal Procedure, 1973 for recovery of the tax due.
Headnote:
SALES TAX - RECOVERY OF TAX - ISSUE OF DISTRAINT WARRANT - PROCEDURE - SECTION 421 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - INTERPRETATION - COURT HELD THAT THE MAGISTRATE FAILED TO FOLLOW THE PROCEDURE PRESCRIBED UNDER SECTION 421(1) OF THE CODE FOR RECOVERY OF THE TAX DUE.
Fact of the Case:
The petitioner, a partner in two firms, challenged the orders of the Magistrate directing the issue of distraint warrant against him for recovery of sales tax due from the firms. The petitioner contended that the action against him alone was unsustainable as all partners should have been made parties, and that the orders were not in conformity with Section 421 of the Code of Criminal Procedure, 1973.
Finding of the Court:
The court held that the respondent's action in proceeding against the petitioner alone was justified as the liability of partners for payment of tax assessed against the firm is joint and several. However, the court found that the Magistrate failed to follow the procedure prescribed under Section 421(1) of the Code for recovery of the tax due.
Issues: 1. Whether the action against the petitioner alone for recovery of sales tax due from the firms was sustainable. 2. Whether the orders of the Magistrate directing the issue of distraint warrant were in conformity with Section 421 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: 1. The court held that the respondent's action in proceeding against the petitioner alone was justified as the liability of partners for payment of tax assessed against the firm is joint and several. 2. The court held that the Magistrate failed to follow the procedure prescribed under Section 421(1) of the Code for recovery of the tax due, and therefore, the impugned orders were liable to be set aside.
Final Decision: The court allowed the revision petitions and set aside the impugned orders of the Magistrate directing the issue of distraint warrant against the petitioner.
2. The few facts relevant for the disposal of these petitions are these:
The revision petitioner is a partner of two firms Messrs. Jesraj Amarchand and Messrs. Dalichand Jesraj. The respondent-Commercial Tax Officer has assessed both the firms for sales tax for different years. The assessee failed to pay the assessment in spite of issue of notice of final assessment and demand. So, the respondent approached the Magistrate under section 13(3)(b) of the Act for recovery of the sales tax due as if it were a fine imposed by the Magistrate. Some of the partners of the firms have filed two suits O.S.Nos. 18 and 20 of 1977 on the file of the Civil Judge at Raichur and obtained an interim injunction against the respondent and the State of Karnataka from proceeding with recovery of the sales tax due from them till the disposal of the respective suits under the assessment order made against the firm. The petitioner herein who is common in all the petitions, is also made a defendant in both the suits. After the interim injunction order was made by the learned Civil Judge, the respondent herein made an application to the Magistrate requesting him to recover the arrears of sales tax from the petitioner who is, admittedly, one of the partners of both the firms. The petitioner filed objections opposing the relief sought against him. The learned Magistrate, after hearing both sides, made the impugned orders overruling the objections raised. The petitioner has come up with these revision petitions challenging the correctness of the order of even date 18th July, 1977 made by the learned Magistrate.
3. Since the question involved in all these criminal revision petitions being the same, I shall proceed to dispose them by this common order.
4. Shri M.M. Jagirdar, learned Advocate appearing for the revision petitioner, has raised several contentions. His first contention was that since the assessees are the firms, all the partners of the firms should have been made parties to the petitions filed by the respondent for recovery of the arrears of sales tax, and therefore, the action of the respondent in proceeding against the petitioner alone is unsustainable in law. This contention is not tenable for the simple reason that the respondent has filed the application before the Magistrate against the firm as well as all the partners thereof in the first instance. In view of the fact that some of the partners of the firm approached the civil Court and obtained interim injunction restraining the respondent from proceeding against them for the recovery of the tax assessed, the respondent has filed one more petition on 25th June, 1977 requesting the Magistrate to recover the arrears of sales tax from the petitioner herein stating the reasons therefor. It cannot be said that this petition is an independent petition filed under section 13(3)(b) of the Act, for the recovery of the tax due from the petitioner alone. It is only -a continuation of the original petition bringing to the notice of the Court below the change in the circumstances that made the respondent to restrict his claim for the recovery of the tax due from the petitioner alone as the liability of the partners for payment of tax assessed against the firm is joint and several.
5. The second contention urged by Shri M.M. Jagirdar, for the petitioner was that the order of issue of distraint warrant against the petitioner is not in conformity with section 421 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) as it is the provision under which the Magistrate
