THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.26478 of 2009 Date:25.01.2010 Between: Devarasetty Pratap. ..... PETITIONER AND The Commercial Tax Officer-I and another. .....RESPONDENTS THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.26478 of 2009 ORDER: (Per the Hon’ble Sri Justice Ramesh Ranganathan) The petitioner claims to be the owner of the immovable property bearing No.13/278 situated at Vedulla Bazaar, Proddatur, Kadapa District. He asserts to have obtained it through succession from his father. He claims that the property situated in door No.7/1496 situated at Korrapad Road, Proddatur, Kadapa District, is his self acquired property. The second respondent is a partnership firm in which the petitioner’s wife is a partner. When the second respondent firm was registered under the Andhra Pradesh General Sales Tax Act, 1957, (‘the Act’ for brevity), the petitioner, under Rule 28 of the Andhra Pradesh General Sales Tax Rules, 1957 (‘the Rules’ for brevity) offered his property at Korrapad as security for the tax liability of the second respondent firm and filed a security bond. This security bond stood discharged at the end of the first assessment year as the liability thereunder was confined to the first year in which registration was granted to the second respondent firm in terms of Section 12 of the Act read with Rule 28 of the Rules i.e., for the assessment year 1995-1996. The first respondent issued notices in Form 4 dated 20.08.2009 and Form 5 dated 16.09.2009 demanding an amount of Rs.5,00,000/- representing arrears of sales tax due from the second respondent firm and proposed to proceed against the property of the petitioner invoking the provisions of the Andhra Pradesh Revenue Recovery Act, 1864 in case the petitioner failed to pay the same. In response thereto the petitioner submitted a representation dated 22.09.2009 contending that since the second respondent firm was not in arrears of sales tax in the assessment year 1995-1996, the security offered by the petitioner ceased to be in operation. He relied on G. Prasada Rao, Nellore vs. Srinivasa Trading Company, Nellore and others[1] and New Kamal Bar & Café’s case[2] in this regard. The first respondent thereafter issued notice dated 25.09.2009 to the petitioner demanding arrears of sales tax of Rs.5,00,000/- due from the second respondent. In the said notice, the petitioner was informed that the amount demanded from him was not because he stood as surety to the second respondent firm but as he was the husband of Smt. Devarasetty Sudhamani, one of the partners of the second respondent firm. This notice was published in the District Gazette on 24.10.2009. Sri V. Bhaskar Reddy, learned counsel for the petitioner, would contend that, since the property sought to be attached is the petitioner’s self acquired property, the mere fact that his wife was a partner in the second respondent firm, which was in arrears of sales tax due to the first respondent, did not entitle the first respondent to attach the self acquired property of the petitioner. Learned counsel would submit that the impugned notice dated 25.09.2009 does not even record a finding that the property in question is the property of the Hindu undivided family. It is evident from the impugned notice dated 25.09.2009 that the first respondent sought to attach the property in question not because he had given surety but because he was the husband of Smt. Devarasetty Sudhamani, allegedly a member of the petitioner’s Hindu undivided family. The first respondent relied on Section 15-B of the Act in holding that the property of the Hindu undivided family was liable to be attached if a partner of a firm, from which sales tax arrears were due, was a member from a Hindu undivided family. Section 15-B of the Act reads as under:- 15-B. Discontinuance of business or dissolution:- (1) Where any business carried on by a firm, a Hindu undivided family or an association has been discontinued, or the firm, Hindu undivided family or association has been dissolved, the assessing authority shall make an assessment of the turnover of the firm, Hindu undivided family, or association, as the case may be, as if no such discontinuance or dissolution had taken place and all the provisions of this Act, including the provisions relating to the levy of a penalty or any other sum chargeable under any provision of this Act, shall, so far as may be, apply to such assessment. (2) Where such discontinuance or dissolution takes place after any proceeding in respect of an assessment for any year has commenced, the proceeding may be continued against every person who was, at the time of such discontinuance or dissolution, a partner of such firm or a member of such Hindu undivided family or association, as the case may be, or the legal representative of any such person who is deceased, from the stage at which the proceeding stood at the time of such discontinuance or dissolution, and all the provisions of this Act shall, so far as may be, apply accordingly. Section 15-B does not enable the first respondent to attach the petitioner’s immovable properties for arrears of sales tax due from the second respondent firm in which the petitioner’s wife is a partner. The impugned notice dated 25.09.2009 does not even record a finding that the property sought to be attached belongs to the Hindu undivided family of which the petitioner’s wife is also a member. The petitioner’s contention that the property is his self acquired property is not disputed by the first respondent. Even if it were to be held that the petitioner’s wife is a member of a Hindu undivided family, the first respondent could only have attached the property of the Hindu undivided family and not the self acquired property of the petitioner. The impugned notice dated 25.09.2009 and the consequential notices in Form 4 dated 20.08.2009 and Form 5 dated 24.10.2009 are, accordingly, quashed. Sri P. Balaji Varma, learned special standing counsel for Commercial Tax appearing on behalf of the first respondent, would request the Court to leave it open to the first respondent to make necessary enquiry to ascertain whether the property sought to be attached is the petitioner’s self acquired property or the property of the Hindu undivided family of which the petitioner was the karta and his wife a member. We make it clear that we have not examined, let alone decided, the question whether the property is the petitioner’s self acquired property or the property of the Hindu undivided family. The order passed by us quashing the impugned notices will not disable the first respondent from taking necessary steps for recovery of the sales tax due in accordance with law. The Writ Petition is, accordingly, allowed. In the circumstances, without costs. ____________________ (GODA RAGHURAM, J) __________________________ (RAMESH RANGANATHAN, J) 25th January, 2010 GHN [1] 45 APSTJ 205 [2] 6 VST 421