9911796707
TMI Blog2019 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... inal disposal at the admission stage itself. 2. The petitioner is aggrieved against the proceedings dated 29.08.2018 of the first respondent, wherein and whereby, he directed the second respondent to create encumbrance on the subject matter properties referred to in this writ petition. 3. Following are the short facts necessary for the disposal of this writ petition: One M/s.Ashok Spinners, Udumalpet, were the registered dealer before the Commercial Tax Officer, Udulmalpet (North). An order dated 29.07.2008 was passed by the Assessing Officer against the said dealer confirming the levy of penal interest of Rs. 4,68,175/- as proposed in the notices dated 10.01.2008 and 15.04.2008. For the purpose of realising tax arrears from the said dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 dated 31.10.2017. 5. The learned Additional Government Pleader for the first respondent, on the other hand, contended that since the said dealer was assessed by imposing penal interest, the impugned proceedings was issued in order to safeguard the interest of the Revenue since those properties were belonging to the partners of the said M/s.Ashok Spinners. However, he is not disputing the fact that no attachment was made on those properties at any point of time and that the purchases made by the petitioner were prior to the date of assessment order dated 29.07.2008. 6. Heard both sides. 7. There is no dispute to the fact that the present impugned communication was issued by the first respondent to the second respondent to create enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Raghuvar (India) Limited Vs. Deputy Commissioner (Appeals) I, Commercial Taxes, Jaipur reported in (2006) 144 STC 331, in the case of D.Senthil Kumar and others Vs. Commercial Tax Officer, Erode and another reported in [2006] 148 STC 204 (Mad) and in the case of Rukmani Vs. The Deputy Commercial Tax Officer (CDJ 2012 MHC 5515), allowed the similar writ petition filed by the similarly situated purchasers and set aside the impugned proceedings therein. At Paragraph No.3 of the said order, it has been observed as follows: "3. In the case of Deputy Commercial Tax Officer, Thudiyalur Assessment Circle, Coimbatore and another Vs.R.K.Streels reported in (1998) 101 STC 161, the Court considered somewhat a similar case and held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Recovery Act against the delinquent or the subsequent first purchaser, and therefore the petitioner therein cannot be penalized. The above decisions are fully in support of the petitioner. Thus, for all the above reasons, this Court is of the firm view that the impugned notice is unsustainable in law." 9. Since this Court finds that the facts and circumstances of the present case are squarely covered by the above decision made by this Court and in view of the findings rendered supra, the petitioner is entitled to succeed. Accordingly, this writ petition is allowed and the impugned order is set aside. However, this order will not prejudice the right of the Department to proceed against the said dealer viz., M/s.Ashok Spinners, Udumalpet, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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