Commissioner Of Sales Tax v. Allimullah Haji Salamat

Vimadalal, J.:— This is a reference by the Commissioner of Sales Tax under section 34(1) of the Bombay Sales Tax Act, 1953, referring the following two questions for the decision of this Court:—

“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the respondent could not be held liable to pay tax as a legal heir in respect of the business conducted by his father?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the respondent could not be held as a transferee within the meaning of section 26(1) of the Bombay Sales Tax Act, 1953, and as such not liable to pay tax in respect of the business conducted by his father?”

2. The facts necessary for the purpose of this reference are that the respondent's father used to carry on business in old bailing hoops, bardaua etc., till his death on the 6th of February, 1957. After his death, the respondent succeeded to the business, and carried on the same in his own name. The respondent has been sought to be assessed for the period 1st April, 1954, to 31st March, 1957, which would be almost entirely a period prior to the death of his father. The Sales Tax Officer assessed the respondent on the turnover of his father's business during the said period by his order dated 30th November, 1957.

3. On appeal to the Deputy Commissioner of Sales Tax, the respondent's liability to pay tax on his father's turnover for the said period was confirmed, though the quantum thereof was somewhat reduced. The matter was taken up to the Sales Tax Tribunal in revision, and the Sales Tax Tribunal, by its order dated 31st October, 1963, allowed the revision application and set aside the orders of the lower authorities. At the instance of the Commissioner of Sales Tax, the present reference has thereafter been made to this Court.

4. As far as the first question referred to us is concerned, namely, the question whether the respondent should be held liable to tax as the legal heir of his deceased father in respect of the business conducted by his father, the matter is concluded by judgments of this Court, and has been fully considered by the Tribunal in its own judgment, but, before we go to those decisions, it may be convenient to state, as has been pointed out by the Tribunal, that the legal representative of a deceased person does not fall within the definition of “dealer” contained in section 2(6) of the Bombay Sales Tax Act, 1953. It may also be pointed out that there was no provision in the said Act corresponding to the provision that is now to be found in section 19 of the Bombay Sales Tax Act, 1959, by which the legal representative of a deceased person who carried on business has been made liable, in the circumstances and to the extent specified therein. It is, therefore, clear that there is no statutory provision under which the respondent can be made liable in respect of the tax dues of his father, and unless there is a specific statutory provision which makes him liable, no person would be liable to pay tax to the State.

5. Turning to the authorities on the point, the first is a case under the Income-tax Act, namely, the case of Ellis C. Reid v. Commissioner of Income-tax, Bombay 1930 5 I.T.C 100., in which the facts were that a person served with a notice under section 22(2) of the Income-tax Act, 1922, failed to make a return, and died after the expiration of the period specified in that notice. It was held that no assessment could be made on him after his death. Beaumont, C.J, in delivering judgment observed that, throughout the Income-tax Act, 1922, there was no reference to the decease of a person on whom the tax had been originally charged, and that it was very difficult to suppose that the omission was unintentional, for it must have been present to the mind of the Legislature that, whatever privileges the payment of income-tax might confer, the privilege of immortality was not amongst them. He then proceeded to observe that, in construing a taxing Act, the Court was not justified in straining the language in order to hold a subject liable to tax, and that if the Legislature intends to assess the estate of a deceased person to tax charged on the deceased in his lifetime, the Legislature must provide proper machinery, and not leave it to the Court to endeavour to extract the appropriate machinery out of the very unsuitable language of the statute. The learned Chief Justice made it clear that they were not concerned with the case which may arise on the death of a person after assessment but before payment. Barlee, J., in agreeing with the learned Chief Justice, rejected the contention that was sought to be advanced on behalf of the State that when the Legislature speaks of an assessee, it impliedly means an assessee or, in the case of his death, his legal representative, and observed that there was no principle by which such an interpretation could be justified. As has been pointed out by the Tribunal in the present case, it was in order to get over the difficulty caused by the decision in Ellis Reid's case that section 24-B was enacted in the Income-tax Act of 1922. Though this is a very old decision, in our opinion, it represents correctly the law on the point, and we are in respectful agreement with the same. It is no doubt a decision on the Income-tax Act, but it is equally applicable to the construction of the Bombay Sales Tax Act, 1953, in which also there is no specific provision which would make the legal representative of a deceased person liable to tax incurred by the deceased during his lifetime in respect of which the deceased had not yet been assessed. There is a decision of this Court on the Bombay Sales Tax Act, 1953, itself, which is also of assistance in deciding the first question posed on the present reference, and that is the decision in the case of Kishenchand Tolaram v. A.B Ghanekar. The facts of that case were that, prior to 23rd May, 1957, the father of the appellant in that case carried on business in Bombay. After the death of the father on 23rd May, 1957, certain notices, including a notice under section 15 of the Bombay Sales Tax Act, 1953, were sought to be served upon the appellant himself in respect of a period prior to the death of his father, it being common ground that, even during the lifetime of his father, the appellant was managing his father's business. The service of those notices was sought to be justified also on the ground that the appellant was the heir of his father. After considering the relevant sections of the Bombay Sales Tax Act, 1953, it was held (at pages 566-67) that it was the appellant's father who was a registered dealer and was liable to pay the tax, and that a notice under section 15 of the said Act could have been issued against him and him alone. It was further held that since he died on 23rd May, 1957, no notice under section 15 could be issued to any one in respect of the turnover which had escaped assessment.

6. From these decisions, it is clear that no assessment proceedings can be initiated against a person as the legal representative of the deceased, in the absence of any specific statutory provision in that behalf. The first question referred to us must, therefore, be answered against the applicant-Commissioner.

7. That brings us to the second question which has been referred to us, namely, whether the respondent could be held liable as a transferee within the meaning of section 26(1) of the Bombay Sales Tax Act, 1953. Section 26 provides that when the ownership of the business of a dealer liable to pay tax is entirely transferred, the transferor and the transferee would jointly and severally be liable to pay any tax, including penalty, if any; payable in respect of such business, and the transferee would also be liable to pay tax on sales or purchases of goods effected by him after the date of such transfer. It was sought to be contended by Mr. Rege. On behalf of the State that the word “transfer” as used in the said section would not only include a transfer inter vivos, but also a transfer by devolution of law or succession. We are afraid, we cannot accept that contention, for the simple reason that the section itself imposes a joint and several liability. On “the transferor and the transferee”, and would, therefore, be in terms inapplicable to a case in which the transferor is dead. On a plain reading of the section, it is, therefore, clear that it is intended only to apply to cases of voluntary transfers inter vivos. Our view that this section applies only to a voluntary transfer between the parties is also supported by authority, and that is the decision of this Court in the case of Rambali Bhuleshwar v. Sales Tax Officer, Recovery I, Bombay*, Bombay. That was a case of a petition under Article 226 of the Constitution challenging the validity of a demand made against the petitioner for payment of a certain amount as the transferee under a purchase at an auction sale in recovery proceedings by the Collector. It was held (at page 601) that the transaction of change of ownership as mentioned in sub-section (1) of section 26 must be as between a dealer and his purchaser, a dealer being referred to as transferor and the purchaser having been referred to as transferee, and that the construction contended for on behalf of the taxing authorities that it would apply also to forced sales by the Collector was entirely contrary to the scheme of the Act, and to the said section. It is, therefore, quite clear that, both on principle as well as on authority, section 26 of the Bombay Sales Tax Act, 1953, must be held to be applicable only to cases of voluntary transfers inter vivos.

8. In the result, we answer the questions referred to us as follows:—

Question No. (1): The Tribunal was justified in law in holding that the respondent could not be held liable to pay tax as a legal heir in respect of the business conducted by his father.

Question No. (2): The Tribunal was justified in holding that the respondent could not be held to be a transferee within the meaning of section 26(1) of the Bombay Sales Tax Act, 1953, and was not liable to pay tax in respect of the business conducted by his father.

9. The Commissioner having failed in the reference, must pay the respondent's costs of the reference fixed at Rs. 250.

10. Reference answered accordingly.