THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.24560 of 2002 September 14, 2009 Between: Smt.S.Challamma, W/o.Manikyala Rao …Petitioner and The District Collector, East Godavari District at Kakinada And others …Respondents. THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.24560 of 2002 ORDER: This writ petition is filed by Smt.S.Challamma assailing notice of attachment in Form-5 issued under Section 27 of Andhra Pradesh Revenue Recovery Act, 1864 (RR Act, for brevity). She prays for a declaration invalidating the impugned notice of attachment and for a consequential direction to respondents not to interfere with peaceful possession of property situated in survey No.251 (old No.71/19) and the rice mill situated in door No.1-95 (old No.1-84) of Chithalapalli village of Razole Mandal in East Godavari District (hereafter cumulatively called, petition schedule property). Petitioner is allegedly absolute owner of land admeasuring Acs.0.12½ in R.S.No.71/19 (new No.251) of Chinthalapalli village, having purchased the same under registered sale deed dated 22.4.1968. Her son, late S.Durga Venkata Satya Rambabu, obtained sale deed and after his death petitioner claimed succession. It is her further case that she constructed Sri Rama Satyavathi Rice, Floor and Oil Mill on the land bearing door No.1-84 (new No.1-95). Petitioner’s father-in-law, Somisetti Pullayya, was doing rice mill business therein. He died on 30.11.2000. Thereafter petitioner is continuing the business. Third respondent issued notice prior to attachment of petition schedule property in Form-4 under Section 25 of RR Act on 13.3.2002 to Somisetti Pullayya demanding a sum of Rs.1,43,589/- towards arrears of Andhra Pradesh General Sales Tax (APGST) for the years from 1997-1998 to 2001-2002. While mentioning petition schedule property, third respondent demanded payment within seven days from the date of receipt of notice in Form-4. As Somisetti Pullayya died, petitioner informed the same and requested to drop the proceedings, as the notice was issued to a dead person and that her father-in-law was nothing to do with petition schedule property. In spite of the same, third respondent issued notice of attachment in Form-5 under Section 27 of RR Act attaching petition schedule property and rice mill. Assailing the same, petitioner filed instant writ petition contending that petition schedule property does not belong to rice mill, and therefore, the same cannot be attached. She also contends that she has nothing to do with rice mill business carried on by her late father-in-law, and therefore, the same cannot be brought to sale. Third respondent filed counter affidavit opposing writ petition. It is the case of answering respondent that Sri Padmavathi Traders is a firm consisting of petitioner and her father-in-law. The firm is dealer of paddy and rice in Chinthalapalli village and obtained certificate under Andhra Pradesh General Sales Tax Act, 1957 (APGST Act) bearing No.KDA/3179 (OLD) and new RC No.1891 from the then Assistant Commercial Officer, Tatisettipalem, on 12.4.1985, for doing business in paddy and rice. The firm carried on business and fell in arrears of sales tax to an extent of Rs.1,43,589/-. As the firm failed to pay the arrears, demand notice was issued. The allegation that petitioner informed about death of her father-in-law is denied. As per the provision of APGST Act, it is responsibility of the partner to report fact of death or retirement of other partner, so as to make entries in the registration certificate. No such representation was made. Petitioner continued business in the same name. While admitting that property mentioned in Forms-4, 5 and 6 belongs to petitioner, it is stated that she being partner is liable to pay arrears of firm, M/s.Padmavathi Traders. The property particulars were furnished by both the partners while obtaining registration certificate, and therefore, Form-5 notice was issued to Somisetti Pullayya, who was family member of petitioner. Notice in Form-5 was also sent to petitioner and authorized Gazette Publication notices dated 13.5.2002 was served on husband of petitioner, Sri S.Manikyala Rao, on 22.6.2002. Having received notices, petitioner has not responded. After issuing necessary notices, Deputy Commercial Tax Officer along with Revenue Officials initiated action for recovery of arrears by erecting flags in the property and petitioner then filed writ petition. Learned Counsel for petitioner submits that the petition schedule property belong to petitioner, and therefore, even if there are arrears payable by firm, M/s.Padmavathi Traders, petition schedule property cannot be attached. Secondly he contends that notice served on dead person, late Somisetti Pullayya, is not valid notice, and therefore, attachment itself is void. Per contra, learned Assistant Government Pleader for Revenue (Andhra Area) while placing reliance on Section 16A of APGST Act, submits that when any firm is in arrears of APGST each of the partners is jointly and severally liable to discharge the same, and therefore, even if petition schedule property stands in the name of petitioner, it is liable to be attached and sold for recovery of APGST arrears. Learned Assistant Government Pleader as directed by this Court has also produced original file from the office of Commercial Tax Officer. There is no dispute that under Section 16A of APGST Act, if any firm is liable to pay any tax, the firm as well as each of the partners shall be jointly and severally liable for such payment. Therefore, the question is whether petitioner is also a partner of the firm, M/s.Padmavathi Traders, in whose favour certificate of registration was issued under APGST Act. The file produced before this Court shows that when an application is made in Form-D under Section 12 of APGST Act read with Rules 28 and 29 of Andhra Pradesh General Sales Tax Rules, 1957, petitioner herein was mentioned as partner having 50% interest in the firm. In addition to this, late Somisetti Pullayya addressed a letter to Assistant Commercial Tax Officer, Chinthalapalli, informing that he and his daughter-in-law – petitioner herein – are equal partners in the firm. Therefore, the contention of learned Counsel for petitioner that Smt.Challamma has nothing to do with the firm cannot be accepted. As she is proved to be partner of firm in whose favour APGST certificate was issued, she is also liable to pay APGST arrears due to State Exchequer. It is no doubt true as admitted in counter affidavit that petition schedule property is owned by petitioner, but the same does not absolve liability of petitioner. Learned Counsel for petitioner contends that respondents are proceeding to sell other property of petitioner as well. This is denied by learned Assistant Government Pleader. In view of the legal position, it must be concluded that though petition schedule property stands in the name of petitioner as admitted in paragraph 4 of counter affidavit of third respondent, she is jointly and severally liable to discharge APGST arrears and property whose particulars are mentioned in Forms-4, 5 and 6 can be brought to sale for recovering APGST arrears. If respondents are proceeding to sell property other than the property mentioned in Forms-4 and 5, petitioner can always avail remedies by approaching Commissioner of Commercial Taxes or concerned appellate authority. The writ petition, subject to above observations, is accordingly dismissed. No costs. ______________ (V.V.S.RAO, J) September 14, 2009 YS