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2021 (6) TMI 141 - HC - VAT and Sales TaxRecovery of dues of deceased dealer - deletion of charge against property - Mutation of charge over the property - HELD THAT - Late Kamlesh Manilal Thakkar was the proprietor of the proprietary concern, namely, M/s. Thakkar Manilal Devchand and he passed away on 31st December, 2010. The Department, in so many words, has stated that the property in question was not of the ownership of Kamlesh Manilal Thakkar but the lawful owner is Smt. Nirupaben Manilal Thakkar (the writ applicant herein). In such circumstances, it was informed by the Department to the Mamlatdar that no other steps were required to be taken with respect to the property, and the mutation of the charge over the property bearing No.21919 be cancelled - if the Department wants to recover the dues of the deceased dealer, then the same cannot be recovered from the immovable property in question as the said property is not the estate of the deceased. Application disposed off.
Issues:
1. Interpretation of Section 57 of the Gujarat Value Added Tax Act, 2003 for recovering dues of a deceased dealer. 2. Requirement of notice under Section 42 of the GVAT Act for invoking Section 57. 3. Ownership status of the immovable property in question. 4. Validity of the communication dated 22nd December, 2014, regarding the cancellation of mortgage entry. Analysis: Issue 1: The court examined the invocation of Section 57 of the GVAT Act for recovering dues of a deceased dealer. The petitioner argued that the respondents could not use this section as the property to be auctioned belonged to the deceased dealer's mother, not the deceased himself. The court granted time for the respondents to justify how the property was the estate of the deceased and whether a notice under Section 42 of the GVAT Act had been issued. Issue 2: The petitioner contended that a notice under Section 42 of the GVAT Act was a prerequisite for invoking Section 57. The court emphasized the need for this notice and directed the respondents to clarify if such a notice had been issued, as per Rule 61 of the Rules. The court also highlighted the importance of following legal procedures before auctioning the property. Issue 3: The court scrutinized the ownership status of the immovable property in question. The Department confirmed through a communication that the property did not belong to the deceased dealer but to his mother. The court concluded that since the property was not the estate of the deceased, the Department could not recover dues from it. The communication dated 22nd December, 2014, played a crucial role in establishing the ownership status. Issue 4: The validity of the communication dated 22nd December, 2014, regarding the cancellation of the mortgage entry was examined. The communication clarified the ownership details of the property and stated that the deceased dealer was not the owner. The court relied on this communication to determine the rightful owner of the property and ordered the cancellation of the charge over it. In conclusion, the court disposed of the writ application, emphasizing that the Department could not recover dues from the immovable property as it did not belong to the deceased dealer. The communication dated 22nd December, 2014, played a pivotal role in establishing the ownership status and resolving the matter in favor of the petitioner.
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