2019 (8) TMI 715 - HC - VAT and Sales Tax

Attachment of self acquired property - arrears of tax revenues - Gujarat VAT Act - whether the self-acquired property of the ownership of the writ applicant who is neither dealer nor agent, could have been attached for the purpose of recovering the dues payable by the respondent No.3 under the Act, 2003? HELD THAT - Once the liability of the defaulting dealer is assessed and fixed, the next step would be to recover the requisite amount with penalty or interest. Such amount can be recovered by the authorities under the Act, 2003 by way of land revenue measures as provided under the Bombay Land Revenue Code. Two things are very amply clear. The property of the ownership of the defaulting dealer can only be provisionally attached. The language of the statute is very clear. Section 45 provides that he may by order in writing attach provisionally any property belonging to the dealer . In such circumstances, in the first instance, the property which is of the ownership of the writ applicant could not have been attached for the purpose of recovery of the amount of tax, penalty or interest due and payable by the respondent No.3. It is not the case of the department that the writ applicant has defaulted, in any manner, with regard to payment of the tax under the Act, 2003. The argument of the learned AGP that the writ applicant would fall within the ambit of the words other person as figuring in Section 46 of the Act, 2003 deserves to be outright rejected. In the case of State of Gujarat vs. Jwelly Tea Co. 2016 (2) TMI 94 - GUJARAT HIGH COURT it was held that The legislature having treated a Hindu Undivided Family as a taxable entity, distinct from the individual members constituting it, it was not open for the appellant to attach the movable properties of an individual member - the Tribunal was wholly justified in holding that the property of the individual member of the Hindu Undivided Family could not be attached under section 45 of the GVAT Act. One aspect which needs to be clarified is that only the land belongs to the writ applicant. The writ applicant is neither dealer nor the agent but he is father of the dealer. The property which has been attached is self acquired property of the writ applicant. Therefore, the land of the ownership of the writ applicant could not have been attached. Application allowed.

Issues Involved:
1. Validity of the attachment of self-acquired property for tax dues of a dealer.
2. Definition and scope of "dealer" and "other person" under the Gujarat Value Added Tax Act, 2003.
3. Applicability of Section 45 and Section 46 of the Gujarat Value Added Tax Act, 2003.
4. Legality of creating a charge on the self-acquired property of a non-dealer.

Detailed Analysis:

1. Validity of the attachment of self-acquired property for tax dues of a dealer:
The writ applicant challenged the attachment of his self-acquired property by the Assistant Commissioner of Commercial Tax for the tax dues of his son, who was a dealer under the Gujarat Value Added Tax Act, 2003. The court examined whether the self-acquired property of the writ applicant, who is neither a dealer nor an agent, could be attached for recovering the dues payable by the dealer.

2. Definition and scope of "dealer" and "other person" under the Gujarat Value Added Tax Act, 2003:
The court referred to Clause 2(10) of the Act, which defines "dealer" as any person engaged in the business of buying, selling, manufacturing, or distributing goods. The term "person" under Clause 2(15) includes individuals, joint families, companies, firms, and other entities. The court emphasized that the writ applicant, being the father of the dealer and not involved in the business, does not fall under the definition of "dealer." The argument by the revenue that the writ applicant falls within the ambit of "other person" under Section 46 was rejected. The court clarified that "other person" should be understood in the context of Section 44, which pertains to recovery from persons holding or due to hold monies for the dealer.

3. Applicability of Section 45 and Section 46 of the Gujarat Value Added Tax Act, 2003:
Section 45 allows for the provisional attachment of property belonging to the dealer during the pendency of assessment proceedings to protect government revenue. Section 46 provides special powers for recovery of tax as arrears of land revenue. The court noted that Section 45 specifically mentions the attachment of property belonging to the dealer, and thus, the self-acquired property of the writ applicant could not be attached. The court also highlighted that Section 46 comes into play only after the liability is assessed and a final order is passed.

4. Legality of creating a charge on the self-acquired property of a non-dealer:
The court referred to previous judgments, including the case of State of Gujarat vs. Jwelly Tea Co., which held that the property of an individual member of a Hindu Undivided Family could not be attached under Section 45 if the individual is not the dealer. The court reiterated that the writ applicant's property, being self-acquired and not belonging to the dealer, could not have a charge created in favor of the State Government. The court ordered the removal of the endorsement in the revenue records and quashed the attachment orders.

Conclusion:
The writ application was allowed, and the impugned orders of attachment and mutation of the revenue records were quashed. The court directed the removal of any charge or encumbrance on the writ applicant's property and allowed the respondents to proceed with recovery from the dealer.

← Previous Next →