2022 (12) TMI 718 - SC - VAT and Sales Tax

Slump sale agreement - dues arising out of the operations and activities of the sugar unit prior to the date of acquisition - to be borne by the seller or otherwise - subsisting dues arising out of transactions occurring on dates prior to the sale - to be characterized as contingent or conditional liability or is it an accrued liability which may be computed or discharged at a subsequent date - Whether a purchaser of a sugar mill could be treated as a dealer or service provider as an entity liable for discharging dues even if they had not been acting as a dealer or service provider or otherwise as an entity on whom, liability could be fastened? - speaking order is vitiated, due to conflict of interest or not - principles of natural justice. HELD THAT - There is no dispute that the liability towards the duty in question for the Amroha unit are in respect of business transactions for the period anterior to the signing date of the Slump Sale Agreement. Moreover assessment orders and recovery citations have been issued by the taxing authorities in the name of the UPSSCL. Therefore, can such liability for transactions prior to the Slump Sale Agreement dated 17.7.2010 be fastened on to the purchaser. In the case in hand, the business liability for the Amroha unit had definitely arisen out of the operation of the unit during the period before the same was sold to the appellant, although the liability is to be quantified and discharged at a future date. When the liability is capable of being estimated with reasonable certainty, the liability is not to be treated as a contingent one and should be considered as a liability which may be discharged at a future date. Such being the position in law and the liability in question not being a contingent one, the same cannot in our view be fastened on the purchaser who were not operating the unit, prior to the Slump Sale Agreement dated 17.7.2010. The liability of the purchaser for the dues relating to activities and operations of the unit for the period anterior to 17.7.2010, could not therefore have been fastened on the appellant in view of the clear provisions made in clause 9 of the Sale Deed read with Clause 12.1 and 12.2 of the Slump Sale Agreement as both are specific in nature. In the same context, the clause 2.6 which speaks of contingent liabilities and legal cases pending in respect of the unit, to be fastened on the purchaser and the seller being absolved of such liability, are generic conditions provided under clause 2.6 of the Slump Sale Agreement and we are not impressed by those - clause 9 of the sale deed being specific, will govern the parties and will override anything contrary, contained in the Slump Sale Agreement. It is the UP State Sugar Corporation Limited which had collected all the dues from their customer on behalf of the State Government and they are under an obligation to deposit the collected sum in the government treasury. But for those transactions, for the period prior to 17.7.2010, the UPSSCL are trying to usurp the collected sum and are trying to pass on the burden to the appellant who was neither the dealer nor they had anything to do with the operation of the unit prior to 17.7.2010 - the rejection of the representation of the appellant appears to be arbitrary and the speaking order could not therefore have been sustained by the High Court in the impugned judgment. In view of the foregoing, the liability in question, not being a contingent liability, cannot be fastened on the shoulders of the appellant. The appeal is accordingly allowed by setting aside the impugned judgment leaving the parties to bear their own cost.

Summary

Issues Involved:
1. Liability for unpaid duty, penalty, and interest.
2. Characterization of liabilities as contingent or accrued.
3. Responsibility for liabilities arising from operations prior to the sale.
4. Validity of the speaking order.
5. Whether the purchaser can be treated as a dealer or service provider for pre-acquisition dues.

Issue-wise Detailed Analysis:

1. Liability for unpaid duty, penalty, and interest:
The core issue was whether the liability for unpaid duty, penalty, and interest amounting to Rs. 5,68,797/- should be borne by the seller (UPSSCL) or the purchaser (M/s Wave Industries Pvt. Ltd.). The appellants challenged the High Court's decision, which held the purchaser responsible for these liabilities.

2. Characterization of liabilities as contingent or accrued:
The judgment discusses the nature of the liabilities, referring to the precedent set in *Bharat Earth Movers vs. Commissioner of Income Tax, Karnataka (2000) 6 SCC 645*. It was established that a liability, even if to be quantified and discharged at a future date, is not contingent if it has definitely arisen. The Supreme Court held that the liabilities in question, arising from operations before the sale, were not contingent but accrued, and thus, should not be transferred to the purchaser.

3. Responsibility for liabilities arising from operations prior to the sale:
The judgment analyzed the Slump Sale Agreement and the Sale Deed. Clause 9 of the Sale Deed and Clauses 12.1 and 12.2 of the Slump Sale Agreement clearly stated that liabilities for operations before the signing date (17.7.2010) were to be borne by the seller. The Supreme Court concluded that these specific clauses override the generic conditions in Clause 2.6 regarding contingent liabilities, establishing that the seller (UPSSCL) was responsible for the liabilities.

4. Validity of the speaking order:
The speaking order dated 7.6.2016, which held the purchaser liable for the outstanding liabilities, was found to be unsustainable. The Supreme Court noted that the High Court's reliance on the generic Clause 2.6 was misplaced, as specific clauses in the agreement and sale deed clearly allocated the liabilities to the seller. Hence, the speaking order was set aside.

5. Whether the purchaser can be treated as a dealer or service provider for pre-acquisition dues:
The Supreme Court emphasized that prior to 17.7.2010, the appellant was neither a dealer nor a manufacturer and had no tax or duty obligations. The UPSSCL, having collected dues on behalf of the State Government, was responsible for depositing them. The attempt to transfer this liability to the purchaser was deemed arbitrary and unsustainable.

Conclusion:
The Supreme Court allowed the appeal, setting aside the impugned judgment, and held that the seller (UPSSCL) was responsible for the liabilities arising from operations before the sale. The purchaser (appellant) was not liable for these pre-acquisition dues. The appeals arising out of related cases were also disposed of on the same terms.