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TMI Blog2023 (12) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... overed in accordance with the provisions of clause (e) to Sub-Section (1) of Section 79 of the Goods and Services Tax Act, the Proper Officer shall send a certificate to the concerned Deputy Commissioner, vested with the power of Collector under the Jammu Kashmir Land Revenue Act, Samvat 1996, in form GST DRC-18 to recover from the person concerned, the amount specified in the certificate, as if it were an arrear of land revenue. As, the Proper Officer of the Taxes Department had moved the Deputy Commissioner, Srinagar, who is the Collector of the District in form GST DRC-18 in his communication dated 25th of March, 2023, therefore, there does not seem to be any illegality as to how the Petitioner is aggrieved of the recovery proceedings against him initiated through the office of Special Tehsildar Recoveries, Srinagar. The arrest and detention of the defaulter is provided under Section 63 of the Jammu Kashmir Land Revenue Act, authorizing the Revenue Officer, not below the rank of Tehsildar, to issue a warrant directing to arrest the defaulter and bring him before the Revenue Officer and, on such production, the Revenue Officer may cause him to be taken before the Collector or may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4, in turn, was also directed to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merit. The Petitioner, vide the aforesaid Order, was also granted liberty to approach this Court again, if he is aggrieved by any decision taken by the Respondent No.4 02. It is pleaded that the aforesaid Order passed by this Court was duly served upon the Respondent No.4, who did not comply with the same and, instead, proceeded to issue non-bailable warrants (NBW) against the Petitioner on 19th of August, 2023. Thereafter, the Petitioner claims to have approached the Respondent No.4 for cancellation of the non-bailable warrants in view of the fact that there is already an Order passed by this Court directing the Respondent No.4 to first decide the issue of maintainability of the impugned notice and jurisdiction before proceeding on merit. The Respondent No.4, however, is alleged to have brushed aside the aforesaid direction passed by this Court and is bent upon arresting the Petitioner, come what may. 03. Feeling aggrieved and dissatisfied with the conduct of the Respondent No.4, the Petitioner claims to have filed a Contempt Petition bearing CCP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings against any defaulting person. He has further argued that the Special Tehsildar Recoveries has, on his own, initiated the proceedings, though he is not competent to do so as it is only the Collector who is competent to initiate proceedings in this behalf. The learned Counsel has also argued that the Special Tehsildar Recoveries has issued the process, including the non-bailable warrant against the Petitioner, against his competence and jurisdiction and, despite direction from this Court vide Order dated 14th of August, 2023 passed in WP (C) No. 1970/2023, he has not addressed the issue raised by the Petitioner with regard to the maintainability of the proceedings and his authority over the recovery proceedings. It has been finally prayed that the present Petition be allowed and the relief prayed therein granted in favour of the Petitioner. 08. Mr Sajjad Ashraf Mir, the learned Government Advocate, on the other hand, appearing on behalf of the Respondents, submitted that the Deputy Commissioner, State Taxes (Recovery), Kashmir Division has exercised the option of recovery of the amount of Rs.1,45,97,064/-, to which the Petitioner has defaulted in payment, to be recovered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h two percent of recovery charges in proceedings under Section 62 of the Land Revenue Act and a nonbailable warrant of arrest issued against the Petitioner on 19th of August, 2023 in the name of Station House Officer (SHO), Police Station Saddar, directing him to arrest and produce the Petitioner before his Court on 28th of August, 2023 in case he defaults in the payment of the aforesaid amount and also a summon issued on 22nd of September, 2023, whereby the Petitioner had been asked to appear before the Tehsildar on 4th of October, 2023 to deposit the default amount along with two percent of recovery charges. It appears that under the GST regime, the Petitioner had been declared as defaulter for payment of an amount of Rs.1,45,97,064/- by the Deputy Commissioner States Taxes (Recoveries), Kashmir Division, Srinagar and he had taken up the matter for recovery of the amount in terms of the Land Revenue Act, pursuant to which the Special Tehsildar Recoveries, Srinagar, vide his No. 233-235/STR/2023 dated 9th of May, 2023, issued a writ of demand for the aforesaid amount along with two percent recovery charges, directing the Petitioner to attend his Court on 24th of May, 2023, failing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the certified copy of the Order is placed before the learned Authority. 13. The learned Counsel for the Petitioner has not stated anything or placed on record any proof as to how the application of the Petitioner for cancellation of warrant had been dealt with by the Respondent No.4. From the perusal of the record, it transpires that the Petitioner had earlier also moved a Petition bearing CRM (M) No. 513/2023 before the Single Bench of this Court, which was dismissed as withdrawn with liberty to the Petitioner to seek appropriate remedy under law vide Order dated 4th of October, 2023. It appears that the Petitioner, instead of facing the writ of demand and the proceedings being carried out by the Special Tehsildar Recoveries, Srinagar for recovery of the tax money, has been trying to lay a web of litigation, so that the tax money due from him is not recovered. 14. The Deputy Commissioner, State Taxes (Recoveries), Kashmir Division, Srinagar, vide his No. 2033/DCK/Rec dated 25th of March, 2023, requested the District Collector, Srinagar to initiate recovery proceedings against three defaulters, including the Petitioner herein-Mohammad Yaqoob Sheikh, for the recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice or requirement to the contrary; (iii) in case the person to whom a notice under sub-clause (i) has been issued, fails to make the payment in pursuance thereof to the Government, he shall be deemed to be a defaulter in respect of the amount specified in the notice and all the consequences of this Act or the rules made thereunder shall follow; (iv) the officer issuing a notice under sub-clause (i) may, at any time, amend or revoke such notice or extend the time for making any payment in pursuance of the notice; (v) any person making any payment in compliance with a notice issued under sub-clause (i) shall be deemed to have made the payment under the authority of the person in default and such payment being credited to the Government shall be deemed to constitute a good and sufficient discharge of the liability of such person to the person in default to the extent of the amount specified in the receipt; (vi) any person discharging any liability to the person in default after service on him of the notice issued under subclause (i) shall be personally liable to the Government to the extent of the liability discharged or to the extent of the liability of the person in default for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of that sub-section. (3) Where any amount of tax, interest or penalty is payable by a person to the Government under any of the provisions of this Act or the rules made thereunder and which remains unpaid, the proper officer of State tax or Union territory tax, during the course of recovery of said tax arrears, may recover the amount from the said person as if it were an arrear of State tax or Union territory tax and credit the amount so recovered to the account of the Government. (4) Where the amount recovered under sub-section (3) is less than the amount due to the Central Government and State Government, the amount to be credited to the account of the respective Governments shall be in proportion to the amount due to each such Government. Sections 61, 62 63 of Jammu Kashmir Land Revenue Act, 1996: 61. Process for recovery of arrears: Subject to the other provisions of this Act any sum recoverable as an arrear of land revenue under any law for the time being in force may be recovered by any one or more of the following processes, namely: (a) by service of a writ of demand on the defaulter; (b) by arrest and detention of his person; (c) by distress and sale of his movabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 provides that, where any amount payable by a person to the Government under any of the provisions of this Act or the Rules made therein is not paid, the Proper Officer shall proceed to recover the amount by preparing a certificate signed by him specifying the amount due from such person and send it to the Collector of the District in which the said person owns any property or resides or carries on his business or to any Officer authorized by the Government and the said Collector or such Officer, on receipt of such certificate, shall proceed to recover from such person the amount specified thereunder, as if it were an arrear of land revenue. Though, Section 79 of the Goods and Services Tax Act provides different modes for recovery of the amount by the Proper Officer at his own or even by an application to the appropriate Magistrate, who shall proceed to recover from such person the amount specified thereunder, as if it were a fine imposed by him, however, in the present case, the Officer concerned has opted to clause (e) of Sub-Section (1) of Section 79 of the Goods and Services Act, which provides for the recovery of the amount as an arrear of Land Revenue. 16. Since, the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is provided under Section 63 of the Jammu Kashmir Land Revenue Act, authorizing the Revenue Officer, not below the rank of Tehsildar, to issue a warrant directing to arrest the defaulter and bring him before the Revenue Officer and, on such production, the Revenue Officer may cause him to be taken before the Collector or may order that he be confined to civil jail for a period not exceeding six days and then, if the arrear is still unpaid, cause him to be taken before the Collector and, for the continued default, the Collector can confine the defaulter in jail for such period not exceeding one month from the date of the order, as the Collector thinks fit. 19. In view of the clear provisions contained in Chapter VII of the Jammu Kashmir Land Revenue Act, Svt. 1996, more particularly Sections 61 and 63, the Special Tehsildar Recoveries, Srinagar, being a Revenue Officer and assigned the job of Tehsildar Recoveries in the District Collectorate, by no stretch of imagination, can be stated to not have any jurisdiction in the matter to proceed by issuance of a writ of demand received from the Collector for recovery of the arrears of tax, as certified by the Deputy Commissioner, State T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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