2017 (3) TMI 625 - HC - VAT and Sales Tax

Recovery of dues - auction sale - a sum of ₹ 14,30,734/- was adjusted as against the sales tax arrears payable by the partnership firm A.K.Sivaprakasa Mudaliar and sons and out of the remaining amount, a sum of ₹ 6,85,541/- was adjusted against the dues of a proprietary concern Sri Lakshmi Traders in which the wife of late A.K.Lala Lajapathy namely, Tmt.Devaki Ammal was the sole proprietor - jurisdiction of the officer - Held that - the Revenue Recovery Act proceedings has been done by the first respondent and not the territorial Assistant Commissioner - Section 29(4) of the Act states that the territorial Assistant Commissioner and the Assistant Commissioner (Assessment) may subject to control and supervision of the Deputy Commissioner and the Commissioner of Commercial Taxes, delegate the power vested in them under Sub-sections (1) and (2) of Section 29 to any officer not below the rank of the Assistant Commercial Tax Officer. Admittedly, the first respondent is an officer below in rank than that of a Assistant Commissioner. Whether all the legal heirs should be issued notice of such sale? - Held that - The contention raised by the respondent in the counter affidavit in page 3 that they need not inform all the legal heirs is an incorrect stands since the property which is individual property of late A.K.Lala Lajapathy is brought for sale and on the date when it is brought for sale, the owner of the property is no more and he has left behind his widow, two sons and nine daughters. This is also one other inherent defect. Notice period - Held that - the auction notice should give 30 clear days to enable any objection to be filed and this 30 days is required to be computed from the date of publication in the district gazette and such publication was admittedly effected only on 22.09.2004 and the auction was held on 22.10.2004, well before the expiry of 30 days. This is also one other inherent defect in the proceedings. Lastly, it has to be pointed out that if the property is sold for recovery of the tax dues of A.K.Sivaprakasa Mudaliar and sons, which is a registered dealer, then adjustment could have been made only as against the said dues and there is no jurisdiction for the respondents to adjust the balance amount towards the alleged dues payable by a proprietorship concern namely, M/s.Lakshmi Traders which was a separate entity having a separate registration. Petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Jurisdiction of the officer under Section 29 of the TNGST Act.
2. Notice to legal heirs of the deceased property owner.
3. Compliance with the 30-day notice period for auction proceedings.
4. Proper adjustment of sale proceeds against tax dues of registered entities.

Jurisdiction of the Officer:
The High Court analyzed the jurisdiction of the officer under Section 29 of the TNGST Act. It was observed that the Revenue Recovery Act proceedings were conducted by an officer below the rank of an Assistant Commissioner, contrary to the statutory requirement. The court noted that there was no proper delegation of powers as mandated by the law, leading to the conclusion that the impugned proceedings were issued by an incompetent officer.

Notice to Legal Heirs:
The court emphasized the necessity of issuing notices to all legal heirs of the deceased property owner when bringing the property for sale under the Tamil Nadu General Sales Tax Act. In this case, the property owned by the deceased was put up for auction without serving notices to all legal heirs, which was deemed a critical flaw in the proceedings.

Compliance with 30-Day Notice Period:
Another crucial issue addressed was the failure to provide a clear 30-day notice period for objections before the auction. The court highlighted that the auction notice was published only a month before the auction date, not meeting the mandatory 30-day requirement. This procedural deficiency was considered a significant defect in the auction proceedings.

Proper Adjustment of Sale Proceeds:
The judgment also delved into the proper adjustment of sale proceeds against tax dues of registered entities. It was pointed out that the respondents lacked the authority to adjust the balance amount from the sale against the alleged dues of a separate proprietorship concern, emphasizing the necessity for precise adjustments against the specific dues of registered entities.

In conclusion, the High Court allowed the writ petition, quashing the impugned proceedings due to various legal infirmities. The court highlighted the improper jurisdiction of the officer, failure to notify legal heirs, non-compliance with the 30-day notice period, and incorrect adjustment of sale proceeds as key reasons for holding the proceedings unsustainable in law. The property remained with the legal heirs following the withdrawal of the auction purchaser's offer, ultimately leading to the dismissal of the auction.