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TMI Blog2012 (12) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... . including the building at Kakka Thoppu Street, Madurai Town having purchased the same by a regular sale deed dated 08.10.1980 for valuable consideration. The partners of the said firms, namely, Balamuruganandam, Kathirvel and Vetrivelkannan are also the partners of other two firms viz., Mappillai Vinayagar Roller Flour Mills and Mappillai Vinayagar Cine Complex. The same persons are Directors in two Private Limited Companies viz., Mappillai Vinayagar Spinning Mills and M/s.Manicka Vinayagar Spinning Mills Ltd., (b)The Commercial Tax Officer, West Veli street Circle, Madurai-20 issued a Notice of Attachment in Form No.5 dated 29.10.2007 under section 27 of the Revenue Recovery Act on 09.11.2007 and thereby the Commercial Tax Department attached the property of the firm M/s.Sri Mappillai Vinayagar Cine Complex. (c)The said order of attachment was passed on account of the fact that two companies, namely, M/s. Sri Mappillai Vinayagar Spinning Mills Limited and M/s.Sri Manicka Vinayagar spinning Mills Limited and one partnership firm, by name, M/s. Sri Mappillai Vinayagar Roller Flour Mills have not paid the arrears of tax. (d)Aggrieved over the attachment order, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an extent of Rs. 61,16,921/-. Now it is the case of the petitioner that the impugned order is illegal and is contrary to the proposition already settled by this Court in W.P.(MD) No.159 of 2008 and as such, the same is liable to be set aside. Challenging the impugned order, the present writ petition has been filed. 3. Resisting the said averments, 1st respondent filed a counter affidavit stating that the impugned order was passed, on the requisition sent to the 2nd respondent, for creating the "Encumbrance of attachment" of the landed property at T.S.No.444, measuring to an extent of 3321 sq.ft., Kakka Thoppu Street, Madurai Town and the building in which the "Lodge Sangam" was functioning, towards the arrears of sales tax held by the following sister concerns: a) Sri Mappillai Vinayagar Spinning Mills .. Rs. 1,06,20,144/- (Private Ltd., Company) b) Sri Manicka Vinayagar Spinning Mills .. Rs. 1,07,94,632/- (Private Ltd., Company) c) Sri Mappillai Vinayagar Roller Flour Mills .. Rs. 15,95,639/- (Partnership firm) For the above said arrears, the immovable properties of the Firm Sri Mappillai Vinayagar Cine Complex were attached to realise the dues. As held by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngam" and it is their legitimate duty to settle the dues before selling the property by way of sale. The tax arrears were duly intimated to the Registration Department for creating the encumbrance, as a precaution agent the sale of the disputed immovable property of Hotel Sangam. Thus, they prayed for the dismissal of the writ petition. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. It is not in dispute that petitioner firm is the partnership firm and one Balamuruganandam, Kathirvel and Vetrivelkannan are the partners. The same partners are owning two other companies, namely, M/s.Mappillai Vinayagar Spinning Mills and M/s.Manicka Vinayagar Spinning Mills. That apart, they are owning partnership firms namely, M/s.Mappillai Vinayagar Roller Flour Mill and M/s.Sri Mappillai Vinayagar Cine Complex. Thus, there are totally five business concerns, two as Private Limited Companies and three as partnership firms. Originally, on 29.10.2007, the 1st respondent issued Form 5 notice dated 29.10.2007 to attach the properties of sister concern, namely, Mappillai Vinayagar Cine complex for the tax arrears liability of the firm, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cka Vinayagar Spinning Mills, the properties of Hotel Sangam, which is a partnership firm was directed to be attached by the first respondent which is not legally sustainable. 10. That apart, it is the yet another submission of the petitioner that before passing the impugned order, the respondents ought to have followed the procedures contemplated under the provisions of Revenue Recovery Act. In this regard, the learned counsel relied upon section 25 of the Revenue Recovery Act and submitted that before a Collector or other officer empowered by the Collector in that behalf, proceeds to attach the land of the defaulter, he shall cause a written demand to be served upon the defaulter prescribing the amount due in respect of which it is claimed and the time allowed for payment. In the instant case, no notice was issued and even without issuing notice, the 2nd respondent was directed to create encumbrance over the property of the partnership firm. Hence, on that account also, the impugned order is liable to be set aside. 11. Per contra, it is the submission of the learned Additional Government Pleader appearing for the respondents that it is incorrect to state that for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offer for the waiver of arrears of surcharge, additional surcharge and turn over tax. But the assessee firm has applied for waiver of tax only on 16.05.2012 to waive the amount of additional tax i.e. after 17 years from the date of G.O. The said application is still pending and the Government has not passed any order. Till the Government passes the order by waiving the amount of Rs. 15,02,847/-, it is clear that as on date, there is tax arrears in respect of the firm also. 14. Apart from that, the arrears position letter submitted by the learned Additional Government Pleader would show that the petitioner has to pay another sum of Rs. 72,063/- towards penalty in respect of the assessee firm viz., Mappillai Vinayagar Flour Mills. In this situation, I am not inclined to accept the submission of the learned counsel for the petitioner that since waiver application is pending in respect of Manicka Vinayagar Roller Flour Mill, it has to be construed that as on date, there is no liability in respect of said flour mill. Therefore, on analysing the entire materials available on record, as on date, there is arrears for two private limited companies and also in respect of one partn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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