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TMI Blog2019 (8) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner as a sole proprietor applied before the Commercial Tax Department for the registration as a dealer in the name and style of Shree Ganesh Hydro Engineers by virtue of the provisions of the Gujarat Value Added Tax Act, 2003 ("the Act" for short) for and the Assistant Commissioner of Commercial Tax, Kadi issued a Certificate of Registration to the dealer on 27/5/2011. 2.02. As there was default by the dealer - son of the petitioner in filing of the returns prescribed under the Act and as the dealer did not deposit the taxes, the Commercial Tax Department cancelled the registration certificate of the dealer w.e.f. 31/10/2012, against which the dealer preferred Appeals as provided under the Act. In the Second Appeals, the dealer succeeded before the Gujarat Value Added Tax Act Tribunal and the Tribunal quashed and set aside the orders passed by the Commercial Tax Officer and the Deputy Commissioner of Commercial Tax and consequently ordered to restore the Registration Certificate of the dealer. 2.03. Thereafter search was conducted on 20/11/2014 at the registered premises of the dealer. At the time of the search, the dealer was not present at the registered premises as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner since its inception from the year 2011. It is contended that the impugned order is illegal and contrary to the provisions of the Act. 4.00. Submission of the revenue :- 4.01. Ms.Maithili Mehta, learned AGP appearing on behalf of the respondents has opposed the present petition. She contended that the impugned order is just, legal and proper and in consonance with the provisions of the Act. She contended that no error or illegality has been committed by the respondent authority in passing the impugned order. 4.02. Ms.Mehta, further contended that the petitioner is father of the dealer and at the time of raid also he was present. She further contended that notice was issued to the petitioner under section 32 of the Act on 20/11/2014 and he was called upon for hearing on 10/12/2014. She contended that the petitioner herein has given statement that he is owner of the factory on which attachment is made and the dealer - Saurabh Nitinbhai Gajjar is his legal heir. However, she has fairly contended that the petitioner is not the dealer as per subsection (2) of section 10 of the Act and is not the owner of the residential premises and factory. 5.00. CONCLUSION : 5.01. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts; (h) any person who transfers the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; and (i) any person who supplies, by way of or as part of any service or in any other manner whatsoever, goods being food or any other article for human consumption or any drink (whether or not intoxicating) where such supply or service is for cash, deferred payment or other valuable consideration. Explanation.-- (i) A society (including a co-operative society), club or firm or an association, which, whether or not in the course of business, buys, sells, supplies or distributes goods, directly or otherwise, from or to its members or other persons for cash, deferred payment, commission, remuneration or other valuable consideration, shall be deemed to be dealer for the purposes of this Act. (ii) The Central Government or a State Government or a local authority or railway administration or port trusts or a statutory body, which, whether or not in the course of business, buys, sells, supplies or distributes goods, directly or otherwise, for cash, deferred payment, commission, remuneration or other val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any particular dealer or person and for reasons to be recorded in writing, extend the time for payment or allow payment by installments, subject to such conditions as he may think fit to impose in the circumstances of the case. (3) In a case where payment by installments is allowed under subsection (2) and the dealer or the person liable for such payment commits default in paying any one of the installments within the time fixed by theCommissioner under that sub-section, the dealer or the person shall be deemed to be in default in respect of the whole of the amount then outstanding and the other installments shall be deemed to have been due on the same date as the installment in default. (4) Interest at the rate of eighteen per cent per annum shall be charged for the period as may be extended or the installments as may be granted under sub-section (2). (5) If the amount of tax and penalty, if any, is not paid within the time specified in sub-section (1) or extended under sub-section (2), as the case may be, the dealer or the person liable therefor shall be deemed to be in default in respect of that amount. (6) Where the amount of tax assessed or reassessed for any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Explanation.-- For the purposes of this sub-section, the amount of monies due to a dealer from, or monies held for or on account of a dealer by any person, shall be calculated by the Commissioner after deducting therefrom such claims, if any, lawfully subsisting, as may have fallen due for payment by such dealer to such person. (2) The Commissioner may amend or revoke any such notice or extend the time for making any payment in pursuance of the notice. (3) Any person making any payment in compliance with a notice under this section shall be deemed to have made the payment under the authority of the dealer, and the receipt thereof by the Commissioner shall constitute a good and sufficient discharge of the liability of such person to the extent of the amount specified in the receipt. (4) Any person discharging any liability to the dealer after receipt of the notice referred to in this section, shall be personally liable to the Commissioner to the extent of the liability discharged or to the extent of the liability of the dealer for tax, penalty and interest, whichever is less. (5) Where a person to whom a notice under this section is sent objects to it by a statement i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officers shall have and exercise all the powers (except the powers of arrest and confinement of a defaulter in a civil jail) and perform all the duties of the Mamlatdar under the said Code. (2) Every order passed in exercise of the powers conferred by subsection (1) shall, for the purpose of section 73, 75, 78, 79 or 94, be deemed to be an order passed under this Act." 6.07. Section 47 declares any transfer with the intent to defraud the revenue as void; "47. Transfer to defraud revenue void:- "Where a dealer after any tax has become due from him creates a charge on or parts with the possession by way of sale, mortgage, exchange or any other mode of transfer whatsoever of any of his property in favour of any other person with the intention of defrauding the Government revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the dealer." 6.08. Section 48 clarifies that any amount payable by a dealer or any other person on account of tax, interest or penalty for which he is liable to pay to the Government shall be a first charge on the property of such dealer or as the case may be, such person. 6.09. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words "other person" as figuring in Section 46 of the Act, 2003 deserves to be outright rejected. In what manner, the words "other person" figuring in section 46 should be understood, shall be explained by us a little later. The petitioner herein is the father of the dealer and the property attached is self-acquired property of the petitioner. The law is amply clear. The entire approach of the State Authorities in this regard is incorrect and not sustainable in law. 6.12. The writ applicant is the lawful owner of the attached land and the writ applicant is neither dealer nor the agent. The relationship is just of a lessor and lessee. The land, as on date, belongs to the writ applicant-Company. 6.13. In the case of State of Gujarat vs. Jwelly Tea Co., reported in (2016) 90 VST 501 (Gujarat), a Coordinate Bench of this Court had observed as under:- "8 Another aspect of the matter is that the expression 'dealer' has been defined under section 2(10) of the Act to mean any person who, for the purpose of or consequential to his engagement in or, in connection with or incidental to or in the course of his business buys, sells, manufactures, makes supplies or distributes goods for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clauses. The Legislature having treated a Hindu undivided family as a taxable entity distinct from the individual members constituting it, and proceedings for assessment and recovery tax having been taken against the Hindu undivided family, it was not open to the Tax Recovery Officer to initiate proceeding against the manager of the Hindu undivided family for his arrest and detention. It is true that if properties of the family, movable and immovable, are to be attached proceedings may be started against the Hindu undivided family and the manager represents the family in proceedings before the Tax Recovery Officer. But by the clearest implication of the statute the assessee alone may be deemed to be in default for non-payment of tax, and liability to arrest and detention on failure to pay the tax due is also incurred by the assessee alone.The manager by virtue of his status is competent to represent the Hindu undivided family, but on that account he cannot for the purpose of Section 222 of the Act of 1961 be deemed to be the assessee when the assessment is made against the Hindu undivided family and certificate for recovery is issued against the family." 7.00. Having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , either forthwith upon the monies becoming due or being held or within the time specified in the notice (but not before the monies becomes due or is held as aforesaid) so much of the monies as is sufficient to pay the amount due by the dealer in respect of the arrears of tax, penalty or interest under this Act, or the whole of the money when it is equal to or less than that amount. Explanation.-- For the purposes of this sub-section, the amount of monies due to a dealer from, or monies held for or on account of a dealer by any person, shall be calculated by the Commissioner after deducting therefrom such claims, if any, lawfully subsisting, as may have fallen due for payment by such dealer to such person. (2) The Commissioner may amend or revoke any such notice or extend the time for making any payment in pursuance of the notice. (3) Any person making any payment in compliance with a notice under this section shall be deemed to have made the payment under the authority of the dealer, and the receipt thereof by the Commissioner shall constitute a good and sufficient discharge of the liability of such person to the extent of the amount specified in the receipt. (4) Any p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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