JUDGMENT
1. The appellants were previously partners of a partnership firm under the name and style of A.L.S. & Co., Madras. For the assessment year 1978-79, the partnership firm had carried on business. Returns were filed showing the taxable turnover of their business. During check of accounts the assessing officer noticed that the partnership had omitted to include certain other purchases. He, therefore, added an equal amount to the turnover as per accounts for probable omissions and determining the total taxable turnover passed an assessment order. Penalty was also levied under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959, for wilful suppression. The appellants preferred appeals to the Appellate Assistant Commissioner under the Act. The appeals failed and the orders of assessment were confirmed. Subsequently they went to the Sales Tax Appellate Tribunal. The Tribunal granted some relief and disposed of the appeals. The appellants then filed Writ Petition No. 8377 of 1981. In the writ petition the principal ground raised on behalf of the appellants was that after the dissolution of the partnership firm there could not be any representation by one of the partners of the dissolved firm and since notice had been served only on one of the partners of the dissolved firm before assessment proceedings were concluded, the appellants had been prejudiced. In the writ petition the appellants had also questioned the vires of rule 52(2) of the Tamil Nadu General Sales Tax Rules, 1959, as well as the vires of section 19A of the Tamil Nadu General Sales Tax Act, 1959. Before the learned single Judge however, it appears, that the only contention raised was with regard to the non-service of notice on all the partners of the dissolved firm, and it was urged that the assessment proceedings had been rendered invalid on that account. This ground was repelled and the writ petition was dismissed. Aggrieved, the appellants have come up in appeal.
2. The facts are not in dispute. The appellants were partners of the firm at the time of its dissolution. A notice was served by the assessing officer on one of the partners only and not on the other partners who were partners of the partnership firm at the time of its dissolution. Section 19A of the Tamil Nadu General Sales Tax Act was brought on the statute book by the Legislature in the wake of the judgment of the Supreme Court in State of Punjab v. Jullundur Vegetables Syndicate [1966] 17 STC 326. The Supreme Court had in that case held that an assessment of dissolved firm was invalid unless there was a statutory provision permitting such assessment. Since the Tamil Nadu General Sales Tax Act, 1959, as it originally stood did not contain any such specific provision permitting assessment of a dissolved firm, the want of legal sanction was removed by the Legislature by introducing section 19A with retrospective effect. Section 19A of the Act deals with the liability to tax of partitioned Hindu family, dissolved firm or other association of persons and lays down that the tax payable under the Act by such a Hindu undivided family, firm or association of persons for the period up to the date of such partition or dissolution shall be assessed as if no such partition or dissolution had taken place, and all the provisions of the Act shall apply accordingly. It also provides that every person who was at the time of such partition or dissolution a member or partner of the Hindu undivided family, firm or association of persons as well as legal representatives of any such person who may have died shall, notwithstanding such partition or dissolution be jointly and severally liable for the payment of the tax, penalty or other amount payable under this Act by the family, firm or association of persons, whether the assessment was made prior to or after such partition or dissolution. This section, therefore, is a statutory provision permitting assessment on dissolved partnership firms and fixes the liability both jointly and severally on the partners who were partners at the time of the dissolution. Rule 52(2) of the Tamil Nadu General Sales Tax Rules, 1959 provides as follows :
“Where any Hindu undivided family, firm or other association of persons is partitioned, dissolved or discontinued, notice, summons or orders issued under the Act or these rules may be served on any member of the Hindu undivided family, any person who was a partner (not being a minor) or member of the association, as the case may be, immediately before such partition, dissolution or discontinuance.”
A bare reading of the rule unmistakably shows that service of notice, summons or orders issued under the Act on any member of the Hindu undivided family, any partner (not being a minor) and any member of the association would be deemed to be proper service in accordance with law provided the service is on any such person or partner who had that status before the partition or dissolution. The learned single Judge, therefore, rightly repelled the submission raised on behalf of the appellants in the writ petition that service on one partner could not be considered as valid service so as to bind the appellants who, it is not disputed, were the partners of the firm at the time of its dissolution.
3. Faced with this situation, learned counsel for the appellants submitted that both section 19A of the Act and rule 52(2) of the Rules were ultra vires the Constitution. The only challenge to the validity of these provisions is found in grounds (c) and (d) of para 6 of the affidavit filed in support of the writ petition. These grounds read as follows :
(c) I submit that rule 52(2) in so far as it authorises service on one of the partners of a dissolved firm to the exclusion of other would he violative and in contravention of Constitution of India, since equal protection of the laws guaranteed under the said article had been denied to other partners of a dissolved firm in the shape of grant of opportunity.
(d) I submit that section 19A which authorises assessment in the name of the dissolved partnership firm as if no partition or dissolution had taken place, is invalid since its legal entity having been disputed, no assessment can be made on a non-existent entity.”
So far as section 19A is concerned, apart from stating that it is invalid, we do not find any ground of challenge to its vires. It is not even spelt out as to how the provisions of section 19A are invalid. There is presumption in favour of the constitutionality and though the presumption is rebuttable but nothing at all has been brought to our notice from which any doubt can he cast on the tires of section 19A. The challenge to the vires of section 19A is thoroughly misconceived, since the grounds of such challenge have not been spelt out. That challenge must, therefore, fail.
4. The failure of the challenge to the vires of section 19A of the Act would itself validate the provisions of rule 52(2) of the Rules. Even otherwise in vain have we searched through the affidavit filed in support of the petition for the grounds of challenge. It is not the case of the appellants that either section 19A of the Act or rule 52(2) of the Rules had been enacted beyond the powers of the Legislature and the rule-making authority. There is also no indication whatsoever of any ground from which the vires of the rule can be said to have been questioned. The scrutiny of the entire writ petition leads us to an unmistakable conclusion that the challenge to the vires of the provisions was made in the writ petition without any justification and only casually. It appears to have been made after the appellants were unsuccessful both before the appellate authority as well as before the Tribunal. Having filed appeals before the Appellate Assistant Commissioner and second appeals before the Tribunal questioning the merits of the assessment and levy of penalty, the appellants have only tried to prolong the litigation by filing the writ petition and questioning, without laying down foundation or basis, the vires of section 19A of the Act and rule 52(2) of the Rule. The challenge to both the provisions is unfounded and we reject it.
5. Thus, in view of the aforesaid discussion, this writ appeal fails and is dismissed. Interim orders, if any, shall stand vacated. There shall be no order as to costs.
6. Writ appeal dismissed.