Kerala High Court
Michael Van Ingen vs State Of Kerala on 6 March, 2017
Author: Antony Dominic
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939
OT.Rev.No. 175 of 2017
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AGAINST THE ORDER IN TA(VA 373/2016 of VALUE ADDED TAX APPELLATE
TRIBUNAL,ADDL.BENCH,PKD DATED 06-03-2017
REVISION PETITIONER/APPELLANT/APPELLANT:
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MICHAEL VAN INGEN
BRAHMAGIRI " B" ESTATE:THOLPETTY: WAYNAD.
BY ADVS.SRI.P.RAGHUNATH
SRI.PREMJIT NAGENDRAN
RESPONDENT/RESPONDENT/RESPONDENT:
---------------------------------
STATE OF KERALA,
COMMERCIAL TAX OFFICER, TRIVANDRUM
R BY SR.GOVERNMENT PLEADER SRI C.K.GOVINDAN
THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION
ON 19-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OTR NO.175/2017
APPENDIX
REVISION PETITIONER'S ANNEXURES:
ANN1 : PHOTOCOPY OF DEED OF PARTNERSHIP DTD.31.12.1973.
ANNII : PHOTOCOPY OF ASST.ORDER DTD.10.9.2994 UNDER AGRL.
INCOME TAX ACT FOR 1998.99
ANN.III: PHOTOCPY OF ASST.ORDER (AIT) FOR 2005.06.
ANN.IV : PHOTOCOPY OF ASSMT.ORDER (AIT) FOR 2006.07
ANN.V : PHOTOCOPTY OF ASSMT.ORDER (AIT) FOR 2007-08.
ANN.VI : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2005.06 U/S
25 OF KVAT ACT.
ANN.VII : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2006.07 U/S
25 OF KVAT ACT.
ANN.VIII : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2007.08 U/S
25 OF KVAT ACT.
ANN.IX : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2008.09 U/S
25 OF KVAT ACT.
ANN.X : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2009.10 U/S
25 OF KVAT ACT.
ANN.XI : PHOTOCOPY OF ORDER DTD.15.11.12 FOR 2010.11 U/S
25 OF KVAT ACT.
ANN.XII : PHOTOCOPY OF COMMON ORDER IN VAT NOS.211/13,214/13,
215/13, 218/13, 221/13 AND 222/13 DTD 19.3.2014.
ANN.XIII: PHOTOCOPY OF COMMON ORDER IN TA (VAT) NOS.373/16 TO
378/16 DTD.6.3.2017.
TRUE COPY
P.S.TO JUDGE
css/
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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O.T.R.V. Nos. 175, 178, 182, 183, 184 & 185 of 2017
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Dated this the 19th day of October, 2017.
JUDGMENT
Antony Dominic,J.
These are the revisions filed by the assessee impugning a common order passed by the Tribunal in T.A. (VAT) Nos. 373, 374, 375, 376, 377 and 378 of 2016 concerning assessment years 2005- 2006 to 2010-2011, whereby assessment under Section 25(1) of the KVAT Act was completed. These assessment orders were confirmed by the first appellate authority and the Tribunal. It is in this background, these revisions are filed.
2. We heard the learned counsel for the petitioner and the learned Government Pleader appearing for the State.
3. The assessee was continuing his agricultural business in partnership with his father and brother. His father expired on 05.03.1996. Insofar as relevant assessment orders are concerned, the stand taken by the assessee is that on the death of his father, the partnership stood dissolved and therefore he continued the agricultural activities as an individual agriculturist. It is this argument of the assessee which was turned down by all the authorities, and it is on that basis the assessment orders have been sustained. It is the alleged O.T.R.V No. 175/2017 & batch -2- incorrectness of the findings of the authorities which was challenged before us.
4. We have considered the submissions made. Section 42 of the Indian Partnership Act, 1932 provides dissolution of the partnership firm on the happening of the contingencies mentioned therein. One of the contingencies mentioned in clause (c) is the death of a partner. Therefore, though the death of a partner could result in the dissolution of a partnership, such dissolution can occur only subject to the contract between the partners. Insofar as this case is concerned, Annexure 1 is the partnership deed. Clause 2(g) of the deed shows that in the event of death of any one of the partners, his representatives in the interest shall be entitled to continue as partner on the same terms. Therefore, the deed itself conferred an entitlement on the representatives of a deceased partner to continue as partner on the same terms and conditions. The facts show that the only two legal heirs of the deceased are his children who are the petitioner herein and another son, who was also a partner of the firm. They have no case that the deceased had any other representative to join the firm. Admittedly, these two partners continued the activities jointly and they have no case, whatsoever, that they have executed any deed of dissolution dissolving the partnership.
5. In such a situation, as rightly found by the authorities below, O.T.R.V No. 175/2017 & batch -3- the partnership continued beyond the death of the petitioner's father. If that be so, the contention of the petitioner that he was an individual and the assessment on the basis that there was a default on his part in obtaining registration is untenable, cannot be accepted. We, therefore, do not find any reason to interfere with the orders impugned.
Revisions fail and the same are accordingly dismissed.
sd-ANTONY DOMINIC, JUDGE.
sd/-DAMA SESHADRI NAIDU, JUDGE.
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