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TMI Blog2019 (8) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... ld only mean any person who carries on any or some of the kinds of business activities enumerated in Section 2(n) directly or indirectly. In the instant case, it is the case of writ petitioner s vendor s mother carrying on three of the business activities, namely buying, selling and distributing petroleum products indirectly through her son. This Court having come to the conclusion that writ petitioner is carrying on business as a dealer not directly, but otherwise, even on an extreme demurrer, even if the expression or otherwise is to be given a restricted meaning, it will still cover writ petitioner s vendor. The writ petitioner s vendor qualifies as a dealer within the meaning of Section 2(n) and that writ petitioner s vendor s property i.e., said property will clearly be covered under Section 37(1) of PVAT Act. With regard to proviso to Section 37(2) which deals with bonafide transfer, there is copious and undisputed material before this Court to show that writ petitioner was carrying on day-today affairs of the business and in any event, learned senior counsel for writ petitioner made it clear that writ petitioner does not want to tread into that arena. Therefore this Court de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of earlier proceedings of this Court dated 1.7.2019. 2. Today, Mr.S.Prem Auxilian Raj, learned counsel on record for writ petitioner is before this Court. Mr.J.Kumaran, learned 'Additional Government Pleader (Pondicherry)' ('AGP' for brevity) is before this Court on behalf of all official respondents. Learned AGP submits that he has come in place of learned Government Advocate Mr.Stalin Abhimanyu and learned AGP will now be representing all the three respondents. 3. An order dated 30.10.2018 bearing Reference No.TIN: 34070001928/ADCTC-II/2018-19 (hereinafter referred to as 'impugned order') made by second respondent under 'The Pondicherry General Sales Tax Act' ('PGST' for brevity) and 'Pondicherry Value Added Tax Act, 2007 (Act No.9 of 2007)' {hereinafter 'PVAT Act'} has been called in question in the instant writ petition and therefore the same shall be referred to as 'impugned order'. 4. Vide 'impugned order', immovable property, being a residential house at No.10, Easwaran Koil Street, Puducherry situate in Ward-C, No.17, T.S.No.155, Puducherry Revenue Village, Puducherry (hereinafter referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order under PVAT Act, qua Section 37(1) of the said Act. (b) Whether writ petitioner's vendor Mr.D.Sundar would qualify as a dealer under PVAT Act, within the meaning of Section 2(n) of the said Act. 14. Learned AGP seeks time to file counter-affidavit inter-alia, setting out aforesaid details and meeting out aforesaid points. 15. At the request of learned State Counsel, adjourned by a week. List on 11.7.2019.' 5.From the above, it can be seen that challenge to impugned order is predicated inter alia on the ground that writ petitioner is a bonafide third party purchaser. However, Sri.T.V.Ramanujam, learned senior counsel appearing on behalf of the counsel on record for writ petitioner (instructed by counsel on record Mr.S.Prem Auxilian Raj) submitted that writ petitioner does not want to tread into the arena of bonafide sale/bonafide purchase and that the challenge to the impugned order is confined to one point. That one point, according to learned senior counsel, is that writ petitioner's vendor D.Sundar is not a 'dealer' within the meaning of PVAT Act and therefore said property cannot be attached for liability under PVAT Act. Furthering his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person creates a charge on, or parts with the possession by way of sale, mortgage, gift, exchange, or any other mode of transfer whatsoever, of any of his assets in favour of any other person, with the intention to defraud the 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 as a result of completion of such proceedings or otherwise. Provided that, such charge or transfer shall not be void if it is made_ (a) for adequate consideration and without notice of the pendency of such proceeding or as the case may be without notice of such tax or any other sum payable by such dealer; or (b) with the previous permission of the Assessing Authority.' 8. As already alluded to supra, learned senior counsel for writ petitioner had made it clear on instructions that writ petitioner does not want to tread into the arena as to whether the sale by which the said property was transferred to writ petitioner was for adequate consideration without notice and that writ petitioner would abridge, restrict and confine his submission to the lone point that writ petitioner's vendor is not a 'dealer' withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not in the course of business, buys or sells goods from or to its members for cash or for deferred payment or for commission, remuneration or other valuable consideration; (xii) an industrial, commercial, banking, insurance or trading undertaking whether or not of the Central Government or any of the State Governments or of a local authority; and (xiii) a department of the Central Government or any State Government or any Union Territory Administration or a local authority by name of any panchayat, municipality, Development Authority or any autonomous or statutory body including a Port Trust and the like which, whether or not in the course of business, buys, sells, supplies or distributes goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration; 10. Therefore, now the lone question that falls for consideration in the instant writ petition is whether the writ petitioner's vendor is a 'dealer' within the meaning of Section 2(n) of PVAT Act. Adverting to Section 2(n), learned senior counsel submitted that the expression 'any person' occurring in Section 2(n) is clearly writ petitioner& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the expression 'any person' occurring in Section 2(n) will accommodate only the writ petitioner's mother's vendor or it can be read as writ petitioner's vendor also; and b) Whether the expression 'or otherwise' occurring in Section 2(n) qualifies the list of business activities enumerated therein or whether it qualifies the manner in which the business activities was carried on. 15. In support of his contention, learned senior counsel also submitted that the kind and category of persons who get included as dealer have been adumbrated in various sub-clauses of Section 2(n) by way of sub-clauses (i) to (xiii) thereunder and sub-clauses (i) to (xiii) does not show 'son'. Therefore, writ petitioner's vendor does not qualify as 'dealer' within the meaning of Section 2(n) is his day. 16. In support of his contention that the expression 'or otherwise' occurring in Section 2(n) qualifies the manner in which the business is carried on, learned State counsel pressed into service a judgment of Hon'ble Supreme Court in Smt.Lila Vati Bai Vs. State of Bombay reported in 1957 AIR (SC) 521. To be noted, Lila Vati Bai is a Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or entity who or which is registered as dealer under PVAT Act. Therefore, in the instant case, writ petitioner's vendor, who was undisputedly carrying on the business albeit in the name of his mother, certainly qualifies as a 'dealer', but writ petitioner's vendor's mother alone will be 'registered dealer' within the meaning of Section 2(zc). Therefore, in the light of 'registered dealer' and 'dealer' being defined separately, this Court has no hesitation in taking a considered view that 'any person' occurring in Section 2(n) will accommodate both writ petitioner's vendor as well as writ petitioner's vendor's mother. If 'any person' is read as writ petitioner's vendor's mother, it will be a case of an individual carrying some of the business activities enlisted in Section 2(n), not directly but otherwise i.e., through her son. If any person is construed as writ petitioner's vendor, it will be a case of an individual carrying on some of the business activities enumerated in Section 2(n) not directly but otherwise i.e., in the name of his mother who is sole proprietrix qua Sri Manakula Vinayagar Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appear to it to be expedient, or ......................................................................... Provided that where an order is to be made under clause (a) requisitioning the premises in respect of which no intimation is given by the landlord, the State Government shall make such inquirv as it deems fit and make a declaration in the order that the premises were vacant or had become vacant, on or after the date referred to in subsection (1) and such declaration shall be conclusive evidence that the premises were or had so become vacant: Explanation-For the purposes of this section, (a) Premises which are in the occupation of the landlord, the tenant or the sub-tenant, as the case may be, shall be deemed to be or become vacant when such landlord ceases to be in occupation or when such tenant or sub-tenant ceases to be in occupation upon termination of his tenancy, eviction, assignment or transfer in any other manner of his interest in the premises or otherwise, notwithstanding any instrument or occupation by any other person prior to the date when such landlord, tenant or sub-tenant so ceases to be in occupation; ................................................ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e four business activities. The reason is straight, simple and clear. 28. A careful and close reading of Section 2(n) reveals that with regard to the four kinds of business activities a ' , ' i.e., a comma (punctuation mark) has been used after the first and second activities and between the third and fourth activities, the expression 'or' has been used. To be noted, Section 2(n) says '......... buying, selling, supplying or distributing goods .......'. thereafter there is a ' , ' i.e., a comma (punctuation mark) and the provision says '......directly or otherwise ..........'. Therefore, 'or otherwise' has been used only as a continuation/extension of 'directly'. If the intention of the legislature was to add to the kinds of business activities, the provision would have read ' buying, selling, supplying or distributing goods or otherwise'. This is not the case. Therefore, this Court has no hesitation in coming to the conclusion that generic words 'or otherwise' as an expression occurring in Section 2(n) of PVAT Act is only an extension of directly to include all possible ways of carrying on the four kinds of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and personnel can be included within the meaning of 'dealer'. Therefore that does not impact the interpretation which this Court is now making. 33. For the purpose of enhancing clarity, this Court deems it pertinent to say that the clincher in the instant case in definition of the term 'registered dealer' in Section 2(zc) which brings to light the mischief which the PVAT Act intends to eliminate and the mischief it eliminates has already been alluded to supra. 34. This takes us to the very last aspect of the matter. This last aspect of the matter is Section 37 of PVAT Act. A careful perusal of Section 37, which has already been extracted and reproduced supra brings to light that in subsection (1) of Section 37, the statute talks about charge on the properties of a 'dealer' and not 'registered dealer'. Therefore, the interpretation which this Court is now making with regard to 'or otherwise' occurring in Section 2(n) inter alia by placing reliance on the mischief which is sought to be eliminated, stands buttressed. If the intention of the statute was otherwise, the statute could have used the expression 'properties of a registered deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al orders of attachment i.e, ABJ orders under Order XXXVIII Rule 5 of CPC are communicated to the jurisdictional Registrar's Office, this Court finds no impediment for making provision for communication of attachments occurring by operation of Section 37(1) of PVAT to the jurisdictional Registrars as and when such first charge /attachments occur. However, though obvious, it is made clear that this is only a recommendatory part of the order as this Court is of the considered view that if such communication is made, it will protect the interest of the Revenue and also serve as a safety valve for innocent bonafide third party purchasers.
To be noted, in the instant case, this Court expresses no opinion as to whether writ petitioner is a bonafide third party purchaser or not in the light of trajectory of the hearing which has been set out supra.
In the light of the discussion thus far, it follows as a sequitur that writ petitioner has not made out a case for interference qua impugned order.
Therefore, this writ petition fails and the same is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. X X X X Extracts X X X X X X X X Extracts X X X X
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