TaxTMI 
TaxTMI 
TaxTMI 
2000 (4) TMI 36
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...., costs, charges and expenses by a date to be fixed for redemption, to sell the suit schedule properties to recover the amount and, in the event the sale proceeds are found to be inadequate to discharge the decretal liability, to recover the balance personally from defendants 2 to 7. 2.. We may point out here that respondents 1 to 18 in this appeal were defendants 1 to 18 in the suit. Respondents 5 and 7, who were defendants 5 and 7 in the suit, died during the pendency of the suit. The legal representatives of respondent 5 were brought on record. They are respondents 8 to 12. Respondent 8 is the widow of respondent 5 and respondents 9 to 12 are the children. Respondent 13 is the State. Respondents 14 and 15 are impleaded on the death of respondent 7 in addition to respondents 2 to 4 and 6, as the legal representatives of respondent 7. Respondents 16 to 18 who were defendants 16 to 18 in the suit have been impleaded because they are the tenants in possession of a part of the property over which equitable mortgage is created in favour of the plaintiff bank. The State of Karnataka came to be impleaded because it tried to sell the mortgaged properties in recovery of the sales tax arr....
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....s of continuity and confirmation of defendants 1 to 6 referred to in the plaint bind the 7th defendant. (11) What is the correct amount due by defendants 1 to 6. (12) Whether the plaintiff is entitled to recover any amount from the defendants 1 to 7 personally and on the charge of the plaint B schedule properties and their income. (13) Whether the plaintiff has given credit to all the realisation by the sale of supari. (14) Whether the interest claimed is excessive and the amount claimed is liable to be reduced. (15) Whether the plaintiff is entitled to any decree against the 7th defendant. (16) To what reliefs are the parties entitled. Additional issues framed on August 5, 1972: (17) Whether defendants 1 to 6 are entitled for credit of any amount under E.C. and G.C. Policy as pleaded in para 1 of the additional statement. (18) Whether the defendants 1 to 6 are entitled for the credit of any amount on Insurance Policy of hypothecation of goods as pleaded in para 4 of the additional written statement. (19) Whether defendants 1 to 6 are entitled for the credit of value of 10 bags of supari covered by the Burglory Policy and a sum of Rs. 742.34 received by him by way ....
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....ice under section 80, C.P.C. to the 13th defendant. 4.. In support of the claim of the plaintiff, it examined two witnesses as P.Ws. 1 and 2 who were working as managers in the bank during the relevant time. The plaintiff has also produced as many as 149 documents which were marked as exhibits P1 to P149. Defendant 6 examined himself as D.W. 1 and the partner of the 16th defendant firm, a tenant examined as D.W. 2 and an accountant of the 16th defendant firm was also examined as D.W. 3. Similarly, an accountant in the 17th defendant-firm was examined as D.W. 4. A tenant under the 7th defendant was also examined as D.W. 5. In addition to this 5 more witnesses also were examined as D.Ws. 6 to 10 by the State of Karnataka. The defendants also produced 724 documents, which were marked as exhibits D-1 to D-724. 5.. After hearing both the sides and on appreciating the evidence on record the learned trial Judge answered issues 1, 6, 8, 13, 19, 22 (first part) 29, 30, 31, 33 and 34 in the affirmative. The remaining issues were answered as per the findings recorded in the course of the judgment. We may also point out that though the learned trial Judge answered issue No. 34 in the negativ....
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....nd on behalf of the plaintiff-bank. The learned Advocate-General for the State does not object to the application. As the power of attorney is very relevant to the issue as to whether the suit filed by R.A. Mehta on behalf of the bank is competent or not. In fact, the trial court has answered that issue against the appellant- plaintiff only on the ground that the power of attorney has not been produced. We are of the view that the power of attorney produced along with the application is quite relevant and necessary for the purpose of deciding one of the material controversies involved between the parties as to maintainability of the suit filed by R.A. Mehta on behalf of the plaintiff- bank. Therefore, the application is allowed. The power of attorney is permitted to be produced. The genuineness, execution and validity of the power of attorney is not disputed by the respondents. Accordingly, we admit the power of attorney and mark it as exhibit P-150. 9.. With these preliminary facts we now proceed to raise the following points that arise for consideration in this appeal: (i) Whether Sri R.A. Mehta was empowered to file the present plaint for and on behalf of the plaintiff-bank fo....
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....x cannot be recovered by the sale of personal properties of the partners. It is the contention of the plaintiff and the partners of the firm contesting respondents, that the arrears due from the partnership can be recovered only from the assets of the partnership and not from the personal properties of the partners; that as the B Schedule properties which are mortgaged to the appellant-bank are not the properties of the partnership and they are the personal properties of the partners, the same cannot at all be sold for recovery of sales tax arrears of the partnership firm. It is also submitted that the State also cannot have preference over the secured debt due to the plaintiff from the contesting respondents who are the firm and the partners of the firm. Under this point we are required to consider only whether the State will have a preference over the secured claim of the appellant and recover the amount by sale of B Schedule properties. The State has placed reliance on the provisions contained in the Karnataka Land Revenue Act, 1964 and the Karnataka Sales Tax Act, 1953, which will hereinafter be referred to as "the Land Revenue Act" and "the Sales Tax Act" respectively. 12.. T....
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................." 12.1. A reading together of the provisions contained in sections 158, 161 and 190(c) of the Land Revenue Act makes it clear that any money due to the State either under Chapter XIV of the Land Revenue Act or under any other law for the time being in force can be recovered as arrears of land revenue in precedence over any other debt, demand or claim whatsoever whether in respect of mortgage, judgment, decree, execution or attachment or otherwise howsoever, by attachment and sale of the defaulter's immovable property under sections 165 to 168 of the Land Revenue Act. In addition to this, section 13(3)(a) of the Sales Tax Act also provides that the tax and any other amount due under the Sales Tax Act can be collected without prejudice to any other mode of collection, as if it were an arrears of land revenue. Sub-section (2) of section 158 of the Land Revenue Act is not relevant for our purpose. Thus, in this regard, both the enactments supplement each other. In other words, they are complementary. 12.2. Section 161 of the Land Revenue Act provides for the processes of recovery of arrears. It provides that arrears can be recovered by forfeiture of the occupancy or ali....
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....a dealer or any other person may be recovered without prejudice to any other mode of collection as if it were arrears of land revenue. Therefore, the Sales Tax Act itself specifically provides for recovery of the dues under the Sales Tax Act as arrears of land revenue. Thus, in view of these aforesaid specific provisions contained in Sales Tax Act and the Land Revenue Act, we do not consider it necessary to refer to the several decisions referred to by Sri Karanth, in support of his contention that sales tax arrears cannot be recovered as arrears of land revenue and cannot also have preference over the claim of the plaintiff. However, we only mention the decisions that are relied upon by the learned counsel for the appellant. They are Builders Supply Corporation v. Union of India AIR 1965 SC 1061 and Collector of Aurangabad v. Central Bank of India AIR 1967 SC 1831. We may also point out that in the case of Collector of Aurangabad AIR 1967 SC 1831, sections 14 and 104 of the Hyderabad Land Revenue Act did not provide for recovery of other taxes due as arrears of land revenue. Therefore their Lordships of the Supreme Court held that the other taxes due under any other law other than....
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....6; AIR 1966 SC 1295 and also in Govinddas v. Income-tax Officer AIR 1977 SC 552. 15.. On the contrary it is contended by the learned Advocate-General that the partners of the firm are personally liable for the sales tax arrears due from the firm to the State, in view of the clear provisions contained in section 25 of the Partnership Act and also the provisions contained in sub- section (2A) of section 15 of the Sales Tax Act. It is contended that there is no question of giving retrospective effect to sub-section (2A) of section 15 of the Sales Tax Act because it is applied and enforced only from the date it has come into effect; that as on the date sub-section (2A) of section 15 of the Act came into force there were arrears of sales tax due from the partnership (1st respondent) and the partners of the partnership firm have also become personally liable for those dues from the date sub-section (2A) of section 15 of the Act has come into force. It is contended that it does not amount to creating any new liability. Learned Advocate-General has placed reliance on the decisions in V. Lakkanna v. State of Mysore AIR 1970 Mys 198; 1969 (2) Mys. L.J. 517, Malabar Fisheries Co. v. Commissi....
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....assessing the firm which ceased to have a legal existence. Therefore, it was held that unless there was express provision no assessment could be made on a firm which had lost its character as an assessable entity. The Supreme Court also held that section 16 of the East Punjab General Sales Tax Act, 1948 did not expressly state that the dealer, if it happened to be a firm, continued to have legal existence even if it ceased to be a firm. The said section did not even by necessary implication have that effect. Therefore, in that case it was held that the High Court was right in holding that the assessment order on the dissolved firm could not be supported under the provisions of the East Punjab General Sales Tax Act, 1948. 17.. Based on the aforesaid proposition it is contended by Sri Karanth, learned counsel for the appellant, that sub-section (2A) of section 15 of the Sales Tax Act which came to be introduced long after the taxable event and also long after the passing of the orders of assessment cannot have the effect of making the partners personally liable for the arrears of the sales tax due from the partnership firm and it cannot also be interpreted to mean that. The learned ....
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....the Sales Tax Act was inserted by Act No. 23 of 1983 with effect from November 18, 1983, the first respondent partnership firm was assessed to tax and the sales tax arrears of the firm were due to be paid to the State Government. The same partners continued to be the partners of the firm. Under section 25 of the Partnership Act every partner is liable jointly with all the other partners and also severally for all acts of the firm done while he is a partner. Therefore, every partner is liable for sales tax arrears due from the firm. 19.. In Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. K. Kelukutty [1985] 60 STC 7 (SC); AIR 1985 SC 1143 it is observed that the true solution has to be found not in the tax law but in the partnership law. Therefore if the Sales Tax Act contains specific provisions excluding the partners of the firm from the liability of the firm regarding arrears of tax due from the firm, the principles contained in section 25 of the Partnership Act cannot be made applicable. In the absence of such specific provision in the Sales Tax Act, as observed in para 8 (page 12 of STC) of the aforesaid decision, it does not confer a corporate personality ....
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....t was held that the liability created thereunder was a new liability. In para 6 of the judgment, their Lordships have stated thus: "6. Though several contentions were raised in the petition and also argued before the High Court, the petitioners at the hearing of the appeals before us confined their attack against the validity of the orders dated August 13, 1974 and September 3, 1974 to only one contention and that related to the applicability of sub-section (6) read with sub-section (7) of section 171 of the new Act. The petitioners sought to repel the applicability of sub-section (6) of section 171 of the new Act by a two-fold argument. In the first place, the petitioners contended that section 25A of the old Act did not impose any personal liability on the members for the tax assessed on the Hindu undivided family in case of partial partition. This liability was created for the first time by sub-section (6) of section 171 of the new Act and this sub-section could not, therefore, be construed to have retrospective effect so as to apply to assessments made on the Hindu undivided family for any assessment year prior to April 1, 1962 when the new Act came into force. The present cas....
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....sonally liable for any part of the tax, even though an order recording partition may have been passed after the assessment, since sub-section (4)(b) of section 171 would have no application in such a case. That was also the position under section 25A of the old Act with this difference that under that section the only partition which could be recorded was total partition and not partial partition. The Legislature, while enacting section 171 in the new Act, decided to introduce another radical departure from the old Act by providing in sub-section (6) that even where no claim of total or partial partition is made at the time of making assessment under section 143 or section 144 and hence no order recording partition is made in the course of assessment as contemplated under sub-sections (2) to (5), if it is found, after the completion of the assessment, that the family has already effected a partition, total or partial, all the members shall be jointly and severally liable for the tax assessed as payable by the joint family and the tax liability shall be apportioned among the members according to the portion of the joint family property allotted to each of them. Sub-section (6) of se....
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.... amicably to settle all their outstanding disputes in the above proceedings and prayed that a decree may be passed against them in terms of this compromise petition: 1.. In view of this compromise petition, the appeal shall continue only against defendant-respondent No. 13 (The State of Karnataka represented by its Deputy Commissioner, South Canara, Mangalore). 2.. The plaintiff-appellant gives up the defendant-respondent Nos. 16 to 18. 3.. The plaintiff-appellant and defendant-respondent Nos. 1 to 4, 6, 8 to 12, 14 and 15 having amicably settled the disputes in regard to the subject-matter of the suit, the judgment and decree of the lower court in so far as it is against the plaintiff-appellant on issue No. 9 set aside and the appeal may be allowed and a decree may be passed in terms set out herein below: (a) The defendant-respondent Nos. 1-4, 6, 8-12, 14 and 15 do hereby withdraw all the contentions raised by them including the plea that the suit is not properly instituted. The defendant-respondent Nos. 1-4, 6, 8-12, 14 and 15 admit the equitable mortgage of the plaint schedule property. (b) The suit be decreed in favour of the plaintiff-appellant against the defendant-respo....
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.... full and absolute owners. The plaintiff-appellant shall return all documents deposited within to the defendants-respondents. 4.. In consideration of the plaintiff-appellant agreeing to receive a lump-sum of Rs. 25 lakhs towards the decree claim, the defendant-respondent Nos. 1-4, 6, 8-12, 14 and 15 agree that the plaintiff-appellant shall be entitled to receive and withdraw from the court the entire rental and other income collected and deposited by the receiver appointed in the suit by the City Civil Court, Mangalore. The said sum and any other sums that may be collected and deposited by the receiver, until this compromise is made into a decree of court shall also be paid to and drawn by the plaintiff- appellant which shall be in addition to the sum of Rs. 25 lakhs referred to hereinbefore. The Receiver shall stand discharged on this compromise being made into a decree of court. 'Provided however that if the above defendants-respondents fail to make the payments within two years from the date of the decree as agreed, defendants-respondents 1-4, 6, 8-12, 14 and 15 agree that the plaintiff- appellant shall be entitled to move the court for the appointment of the receiver pending ....
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....Advocate-General that the plaintiff be permitted to execute the decree within the specified period; that from and out of the amount recovered in execution, the sales tax amount due to the State be first discharged as it has priority and that out of the remaining amount the liability under the decree may be discharged. 21.1. While considering point No. 2, we have already held that the sales tax arrears due to the State from the first respondent-partnership, shall have preference over the plaintiff's claim. Therefore, we accept the compromise except clauses (7) and (8) and other terms which affect the preferential claim of the State to recover sales tax arrears by sale of the suit properties, and decree the suit of the plaintiff in terms of the compromise, subject to exception as stated above, and subject to the condition that the sales tax arrears including the penalty, if any, due under the Sales Tax Act from the first respondent and its partners shall have preference over the plaintiff's claim, and the plaintiff shall have to first pay the amount recovered during the course of execution to the State towards the sales tax arrears and the other amount due under the Sales Tax Act fr....
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....rship firm, namely, Bhikhabhai Prabhudas Parekh and Co., and its partners. The suit was based, inter alia, on a mortgage by deposit of title deeds made by the partnership firm and its partners on April 24, 1969. The suit sought for enforcement of the mortgage security. During the pendency of the suit some of the defendants expired and their legal representatives were brought on record. Three tenants in the mortgage property were also joined as parties to the suit so as to eliminate the possibility of their causing any hindrance in the enforcement of the charge created by the equitable mortgage of the property in favour of the bank. During the pendency of the suit the State of Karnataka tried to attach and sell the mortgaged properties for recovery of sales tax arrears due and payable by the partnership firm, the first defendant. The arrears of sales tax related to the assessment years 1957-58, 1966-67 to 1969-70 under the State Act and to the assessment years 1958-59 to 1964-65 and 1967-68 to 1969-70 under the Central Act. It appears that there was a court receiver appointed who tried to resist the State's attempt to attach and sell the mortgaged property by preferring objections b....
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....t was submitted that the right of the State to realise its arrears of tax could not take precedence over the right of the bank to enforce its security, it being a secured creditor. Secondly, it was submitted that the property mortgaged in favour of the bank was the property belonging to the partners while the arrears of sales tax related to the partnership firm which was assessed as a legal entity; the arrears of tax could be recovered from the assets of the partnership firm and not by proceeding against the property of the individual partners. Both the contentions were repelled by the High Court. While recording the compromise and passing a decree in terms thereof by its judgment dated August 3, 1992, the High Court has excluded clauses (7) and (8) aforesaid being illegal and not enforceable against the State. Accordingly the suit filed by the bank has been decreed by the High Court superseding the judgment and decree of the trial court. The operative part of the decree passed by the High Court reads as under : "21.1 . . . we have already held that the sales tax arrears due to the State from the first respondent-partnership, shall have preference over the plaintiff's claim. There....
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....uit and it is one of the respondents in this appeal. The trial court also has directed the parties to bear their own costs. Further, the State is benefited by getting its right of preference adjudicated in a suit filed by the bank. Under these circumstances, we order no costs in this appeal as far as the State is concerned." The bank has come up in appeal by special leave to this court feeling aggrieved by the decree of the High Court to the extent to which it recognises the right of the State to proceed against the suit property and that too in preference to the bank's right to proceed against the mortgaged property for realisation of its dues. We have heard learned counsel for the bank and learned counsel for the partnership firm and its partners, i.e., the borrowers. There has been no appearance on behalf of the State of Karnataka though served. Two questions arise for consideration. Firstly, whether the recovery of sales tax dues (amounting to Crown debt) shall have precedence over the right of the bank to proceed against the property of the borrowers mortgaged in favour of the bank. Secondly, whether property belonging to the partners can be proceeded against for recovery o....
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....l functions and in order to be able to discharge such functions efficiently, it must be in possession of necessary funds and this consideration emphasises the necessity and the wisdom of conceding to the State, the right to claim priority in respect of its tax dues. (see Builders Supply Corporation v. Union of India [1965] 56 ITR 91 (SC) ; AIR 1965 SC 1061). In the same case the Constitution Bench has noticed a consensus of judicial opinion that the arrears of tax due to the State can claim priority over private debts and that this rule of common law amounts to law in force in the territory of British India at the relevant time within the meaning of article 372(1) of the Constitution of India and therefore continues to be in force thereafter. On the very principle on which the rule is founded, the priority would be available only to such debts as are incurred by the subjects of the Crown by reference to the State's sovereign power of compulsory exaction and would not extend to charges for commercial services or obligation incurred by the subjects to the State pursuant to commercial transactions. Having reviewed the available judicial pronouncements their Lordships have summed up th....
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.... the security of the goods cannot be extinguished even by lawful seizure of goods by making money available to other creditors of the pawnor without the claim of the pawnee being first fully satisfied. Rashbehary Ghose states in Law of Mortgage (T. L. L., seventh edition, page 386)-"It seems a Government debt in India is not entitled to precedence over a prior secured debt". The abovesaid being the position of law, the High Court has however proceeded to rely on certain provisions contained in Chapter XVI of the Karnataka Land Revenue Act, 1964, as also the provisions contained in sections 13 and 15 of the Karnataka Sales Tax Act, 1957, for holding that the arrears of sales tax would be entitled to preference even over the debt secured by mortgage in favour of the appellant bank. We would notice the relevant legal provisions. Chapter XVI of the Karnataka Land Revenue Act, 1964, is titled "Realisation of Land Revenue and other Public Demand". Sections 158, 190 and 2 (relevant parts thereof) are extracted and reproduced hereunder : "158. Claim of State Government to have precedence over all others.--(1) Claims of the State Government to any money recoverable under the provisions o....
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....so under the Karnataka Sales Tax Act the arrears of sales tax do not become arrears of land revenue ; they have been declared merely to be recoverable as arrears of land revenue. Relying on the observations of this court in Builders Supply Corporation's case [1965] 56 ITR 91 (SC) ; AIR 1965 SC 1061, vide para 28 (page 107 of ITR), learned counsel for the appellant submitted that the appellant being a secured creditor the arrears of sales tax could not have preference over the rights of the appellant, It is true that the Constitution Bench has in Builders Supply Corporation's case [1965] 56 ITR 91 (SC) ; AIR 1965 SC 1061 observed by reference to section 46(2) of the Indian Income-tax Act, 1922, that that provision does not deal with the doctrine of priority of Crown debts at all ; it merely provides for the recovery of the arrears of tax due from an assessee as if it were an arrear of land revenue which provision cannot be said to convert arrears of tax into arrears of land revenue either. The submission so made by learned counsel omits to take into consideration the impact of section 158(1) of the Karnataka Land Revenue Act which specifically provides that the claim of the State Go....
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....e amendment a retrospective operation. In Principles of Statutory Interpretation (by justice GP Singh, seventh edition, 1999, at page 369) it is stated : "The rule against retrospective construction is not applicable to I statute merely 'because a part of the requisites for its action is drawn from a time antecedent to its passing'. If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes. An amending Act is, therefore, not retrospective merely because it applies also to those to whom the pre-amended Act was applicable, if the amended Act has operation from the date of its amendment and not from an anterior date." There is, therefore, no question of sub-section (2A) of section 15 of the Karnataka Sales Tax Act being given a retrospective operation. It is prospective. However, it does not make any difference for the facts of the present case. The High Court has relied on section 25 of the Partnership Act, 1932, for the purpose of holding the partners as individuals liable to meet the tax liability of the firm. Section 25 provide....
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....d in the Karnataka Sales Tax Act as referred to here in above and that is why the partners of the borrower firm in the case before us cannot take shelter behind the law laid down by this court in Radhakisan's case [1979] 118 ITR 534 ; [19791 43 STC 4 ; AIR 1971) SC 1588,. Here we may also refer to a two-judge Bench decision of this court in Third ITO v. Arunagiri Chettiar [1996] 220 ITR 232 in which the provisions of section 188A of the Income-tax Act, 1961, have been noticed. Section 188A declares a partner and his legal representatives jointly and severally liable along with the firm to pay any tax, penalty or sum payable for the year in which he was a partner. It was observed that section 188A explicitly provides what was implicit hitherto. In the case at hand the partners are being held liable by reason of section 15(2A) of the Karnataka Sales Tax Act, 1957. Learned counsel for the appellant is right in submitting that on the day on which the State of Karnataka proceeded to attach and sell the property of the partners of the firm mortgaged with the bank, it could not have appropriated the sale proceeds to sales tax arrears payable by the firm and defeating the bank's security ....