2012 (12) TMI 953 - HC - VAT and Sales Tax

Outstanding dues - attachment of immovable properties of another firm - non complying with Revenue Recovery Act Held that - Submission of the petitioner cannot be accepted for the reason that the Government has issued G.O.Ms.No.216 dated 11.07.1995 stating that the Government have decided to accept the offer for the waiver of arrears of surcharge, additional surcharge and turn over tax. But the assessee firm has applied for waiver of tax only on 16.05.2012 to waive the amount of additional tax i.e. after 17 years from the date of G.O. The said application is still pending and the Government has not passed any order. Till the Government passes the order by waiving the amount of ₹ 15,02,847/-, it is clear that as on date, there is tax arrears in respect of the firm also. Apart from that, the arrears position letter submitted by the learned Additional Government Pleader would show that the petitioner has to pay another sum of ₹ 72,063/- towards penalty in respect of the assessee firm viz., Mappillai Vinayagar Flour Mills. In this situation, not inclined to accept the submission of the learned counsel for the petitioner that since waiver application is pending in respect of Manicka Vinayagar Roller Flour Mill, it has to be construed that as on date, there is no liability in respect of said flour mill. Therefore, as there is arrears for two private limited companies and also in respect of one partnership firm M/s.Mappillai Vinayagar Roller Flour Mills, impugned order passed by the 1st respondent attaching the property of another firm for arrears of tax cannot be said to be illegal. As the order of attachment was published by the Commercial Tax Department in the District Gazette on 08.04.2009. Hence, at this juncture, not inclined to accept the submission of the petitioner that the 1st respondent has passed the impugned order without complying with the provisions of Revenue Recovery Act. Against assessee.

Summary

Issues Involved:
1. Legality of the attachment order issued by the Commercial Tax Department.
2. Applicability of the previous court order in W.P.(MD) No.159 of 2008.
3. Compliance with procedural requirements under the Revenue Recovery Act.
4. Liability of the petitioner firm for the tax arrears of associated firms and companies.

Issue-wise Detailed Analysis:

1. Legality of the Attachment Order:
The petitioner, M/s. Hotel Sangam, challenged the attachment order issued by the Commercial Tax Department, which attached the property for the arrears of tax owed by M/s. Sri Mappillai Vinayagar Spinning Mills Limited, M/s. Sri Manicka Vinayagar Spinning Mills Limited, and M/s. Sri Mappillai Vinayagar Roller Flour Mills. The petitioner argued that the attachment was illegal and contrary to a previous court decision. The court concluded that the attachment order was legal, as there were tax arrears not only for the two private limited companies but also for the partnership firm, M/s. Mappillai Vinayagar Roller Flour Mills.

2. Applicability of the Previous Court Order in W.P.(MD) No.159 of 2008:
The petitioner relied on a previous court order in W.P.(MD) No.159 of 2008, which stated that the dues from a company should be recovered from that company and not from its directors. The court clarified that while the property of a firm could be attached for the tax arrears of another firm with common partners, the same does not apply to private limited companies, which are separate legal entities. However, since there were tax arrears for the partnership firm, M/s. Mappillai Vinayagar Roller Flour Mills, the attachment of the property was justified.

3. Compliance with Procedural Requirements under the Revenue Recovery Act:
The petitioner contended that the respondents did not follow the procedural requirements under the Revenue Recovery Act, specifically the issuance of a written demand notice. The court found that the 1st respondent had complied with all necessary provisions of the Revenue Recovery Act and that the order of attachment was published in the District Gazette. Therefore, the court dismissed this argument.

4. Liability of the Petitioner Firm for the Tax Arrears of Associated Firms and Companies:
The petitioner argued that since they had applied for a waiver of tax arrears for M/s. Mappillai Vinayagar Roller Flour Mills, there should be no current liability. The court noted that the waiver application was still pending and had not been granted. Consequently, the court held that there were indeed tax arrears for the partnership firm, justifying the attachment of the petitioner firm's property. Additionally, the court noted that the petitioner firm had to pay a penalty, further supporting the attachment order.

Conclusion:
The court dismissed the writ petition, stating that the attachment order was legal and complied with the necessary procedural requirements. The petitioner firm's property could be attached for the tax arrears of the associated partnership firm, M/s. Mappillai Vinayagar Roller Flour Mills, despite the pending waiver application. The court found no merit in the petitioner's arguments and upheld the attachment order.