The assessment proceedings may be continued against a dissolved partnership firm as if it had not been dissolved.

JUDGMENT

NARASIMHAM, C.J. - The points of law involved in these three applications are the same and hence they are dealt with in one judgment.

2. Under section 24(2) of the Orissa Sales Tax Act, 1947, this Court directed the Member, Sales Tax Tribunal, to refer the following two questions of law :-

"(i) Whether in the facts and circumstances of the case the Tribunal is right in entering into the merits of the assessment while sitting in judgment over the orders of the first appellate rejecting first appeals summarily.

(ii) Whether in the facts and circumstances of the case the Tribunal is right in holding that the notice in the instant case issued in the firm's name and served on one partner only after the dissolution of the partnership is illegal so as to vitiate the assessments made in pursuance of such notice".

3. The relevant facts are as follows : The opposite party was a firm consisting of three partners, namely, R. K. Upadhyaya, B. C. Patnaik and S. K. Sen, dealing in motor car spare parts and accessories. The firm was a registered dealer bearing registration number 2135. The firm has been assessed to sales tax for the three quarters ending the 30th June, 30th September and 30th December, 1955, under section 12(4) of the Orissa Sales Tax Act. It appears that the firm was dissolved and the business was closed down sometime towards the end of the calendar year 1955 but no notice of dissolution was given to the Sales Tax Authorities as required by section 18(b) of the Act read with rule 14 of the Sales Tax Rules. Hence the Sales Tax Authorities continued the assessment in the name of the firm and served demand notice on Shri B. C. Patnaik, one of the partners. The assessment is in respect of the periods preceding the dissolution of the partnership and the discontinuance of the business.

4. The opposite party appealed before the Assistant Commissioner but the appeal was dismissed summarily under rule 49 of the Sales Tax Rules for failure to remove defects within a reasonable time. On second appeal the learned Member, Sales Tax Tribunal, dealt with the case at great length both on facts and on law. The first question referred to this Court relates to the right of the Tribunal to enter into the merits of the assessment while sitting in judgment over the order of the first appellate authority (viz., the Assistant Commissioner) rejecting the appeal summarily. This question is concluded by a judgment of the Supreme Court reported in Mela Ram and Sons v. Commissioner of Income-tax, Punjab ([1956] 29 I.T.R. 607; A.I.R. 1956 S.C. 367), which has been followed in Commissioner of Sales Tax, Orissa v. Ramkaran Agarwalla ([1962] 13 S.T.C. 407; I.L.R. (1961) Cut. 585). There it was held that even a summary dismissal of a first appeal would amount to an appeal within the meaning of sub-section (2) of section 23 of the Orissa Tax Act and a second appeal before the Tribunal would lie. Once a second appeal lies before the Tribunal, that authority has full powers to enter into facts and law as authorised by clause (c) of sub-section (3) of section 23 of the Orissa Sales Tax Act. The first question is therefore answered in the affirmative.

5. So far as the second question is concerned the learned Member, Sales Tax Tribunal, has relied on some observations in the judgments of a Calcutta High Court reported in Manindra Lal Goswami v. Income-tax Officer ([1956] 30 I.T.R. 550) and R. N. Bose v. Manindra Lal Goswami ([1958] 33 I.T.R. 435) dealing with section 44 of the Indian Income-tax Act on the observations of the Allahabad High Court in Jagat Behari Tandon v. Sales Tax Officer, Etawah ([1957] 8 S.T.C. 459), dealing with the interpretation of similar provisions of the U.P. Sales Tax Act, 1948. But there are several later decisions of many other High Courts in which a contrary view has been taken : See Lalji v. Assistant Commissioner, Sales Tax, Raipur ([1958] 9 S.T.C. 571); R. Ponnuswami Gramani v. Collector of Chingleput District ([1960] 11 S.