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2022 (5) TMI 139 - HC - VAT and Sales TaxSeeking release of attached properties - whether the respondents could have proceeded to attach the individual and personal properties of the writ-applicants by invoking Section 44 of the GVAT Act? - HELD THAT - The question posed is no longer res integra in view of the recent pronouncement of this High Court by this very Bench in the case of SHRI SHAKTI COTTON PVT. LTD. VERSUS THE COMMERCIAL TAX OFFICER 2022 (4) TMI 196 - GUJARAT HIGH COURT where it was held that Section 44 of the GVAT Act is being misused to the maximum. Either the authorities concerned have no idea about the scope and true purport of Section 44 of the GVAT Act or they just pretend to be ignorant of the correct interpretation of Section 44 of the GVAT Act. In the case on hand also, it cannot be said by any stretch of imagination that the four firms had any debtor creditor relationship with the writ-applicants herein. It also cannot be said by any stretch of imagination that the four firms had any debtor-creditor relationship with late Sunil Shah - the entire action on the part of the respondents under the garb of Section 44 of the GVAT Act could be termed as without jurisdiction and arbitrary. It has been more than 7 years that various individual and personal assets of the writ-applicants have remained under attachment. Unfortunately, even the life insurance policies which matured over a period of time could not be encashed on account of the attachment. The respondents are directed to immediately lift the attachment over all the individual and personal assets of the writ-applicants and release them free from all encumbrances, except for the property referred to in the notice dated 13.10.2017 - application allowed.
Issues Involved:
1. Legality of the attachment of personal properties of the writ-applicants under Section 44 of the GVAT Act. 2. Debtor-creditor relationship between the writ-applicants and the firms involved. 3. Jurisdiction and arbitrariness of the respondents' actions under Section 44 of the GVAT Act. 4. Compliance with procedural requirements under Section 44 of the GVAT Act. Detailed Analysis: 1. Legality of the Attachment of Personal Properties: The writ-applicants challenged the legality of the notice dated 02.07.2021, which provisionally attached their properties/assets under Section 44 of the GVAT Act. They argued that the attachment of their individual properties was arbitrary and that Section 44 could not be invoked merely because they were family members of Sunil Shah, who allegedly committed fraud. The court examined whether the personal assets of the writ-applicants could be attached to recover dues owed by the firms. 2. Debtor-Creditor Relationship: The court scrutinized whether there existed a debtor-creditor relationship between the writ-applicants and the firms. It was found that the writ-applicants did not have any debtor-creditor relationship with the firms. The court noted that Section 44 of the GVAT Act, which is akin to garnishee proceedings, could only be invoked if such a relationship existed. The court emphasized that the power under Section 44 is to be exercised when there is a person who has a debtor-creditor relationship with the dealer and from whom money is due or may become due. 3. Jurisdiction and Arbitrariness: The court declared the respondents' actions under Section 44 of the GVAT Act as without jurisdiction and arbitrary. It was noted that the proceedings under Section 44 are in the nature of garnishee proceedings and require a valid debtor-creditor relationship, which was absent in this case. The court highlighted that the entire approach of the department was flawed as they attempted to recover dues from the writ-applicants without any legal basis. 4. Compliance with Procedural Requirements: The court found that the respondents failed to comply with the procedural requirements of Section 44 of the GVAT Act. Specifically, no notice was sent to the writ-applicants as required under sub-section (5) of Section 44, which allows the concerned person to object to the notice by filing a statement. The absence of such notice invalidated the initiation of garnishee proceedings and rendered the attachment of personal properties unlawful. Conclusion: The court concluded that the attachment of the writ-applicants' personal properties was illegal and without jurisdiction. The respondents were directed to immediately lift the attachment and release the properties free from all encumbrances, except for the property mentioned in the notice dated 13.10.2017. The writ-applicants were given liberty to challenge the action regarding the properties mentioned in the notice dated 13.10.2017 before the appropriate forum.
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