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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 ..... ted recovery proceedings against the Petitioner and issued a notice under Section 62 of the Land Revenue Act, which was challenged by the Petitioner before this Court through the medium of Writ Petition bearing WP (C) No. 1970/2023. The said Writ Petition came to be disposed of in terms of Order dated 14th of August, 2023, with the observation that the Petitioner can appear before the Respondent No.4 and raise all the objections, including the issue of jurisdiction on the part of the Respondent No.4. The Respondent No.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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing for the Respondents to have instructions in the matter, directed that till then, no coercive action shall be taken against the Petitioner. 07. Mr Mohammad Yawar, the learned Counsel appearing on behalf of the Petitioner, argued that the Special Tehsildar Recoveries is not a competent authority to proceed against the Petitioner, stated to be a defaulter of the payment of tax for the reason that under the scheme of the Jammu & Kashmir Land Revenue Act, it is only the Collector of the District who is competent to initiate proceedings 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 maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 79 of the GST Act and in terms of Sections 61, 62 and 63 of the Jammu & Kashmir Land Revenue Act. 09. We have heard the learned Counsel appearing for the parties, perused the pleadings on record and have considered the matter. 10. The short question that falls for consideration of this Court is as to whether the Respondent No.4 was competent to issue the writ of demand based on declaring the Petitioner as defaulter by the Deputy Commissioner, State Taxes (Recoveries), Kashmir Division, Srinagar, for an amount of Rs.1,45,97,064/-, along with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that the Respondent cannot be prima facie found guilty of having acted in contempt of Order of this Court dated 14th of August, 2023, as the arrest of warrant was issued even before the said Order was placed before the Authority. However, on the statement made by the learned Counsel for the Petitioner that an application for recall of non-bailable warrant had already been moved before the authority on 24th of August, 2023, the authority was requested to pass an order on the application for recalling of warrant within one week from the 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, instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom the notice is issued under subclause (i) shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the proper officer may file an application to the appropriate Magistrate and such Magistrate shall proceed to recover from such person the amount specified thereunder as if it were a fine imposed by him. (2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made thereunder provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port this action for the information of the Collector and Collector may take such action on the report as he thinks fit. (5) Omitted by Act No. X of 2005, Section 7. (6) The process of arrest and detention shall not be executed against a defaulter who is a female, a minor, a lunatic or an idiot. (7) So long as the defaulter is detained in jail under this section no other process for collection of any sum recoverable as land revenue due from him shall be enforced. (8) Every Police Officer shall help and afford assistance to the Revenue Officer in the exercise of his lawful authority." 15. Clause (e) of Sub-Section (1) of Section 79 of the Goods and Services Tax Act, 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has to be enforced by the issuance of process for recovery of arrears in terms of Section 61 by any one or more of the following processes, namely: a) by service of a writ of demand on the defaulter; b) by arresting and detention of his person; c) by distress and sale of his immoveable property and uncut and ungathered crops; d) by transfer of the holding in respect of which the arrear is due; e) by attachment of the estate or holding in respect of which the arrear is due; f) by annulment of assessment of that estate or holding; g) by sale of that estate or holding; and h) by proceedings against other immovable property of the defaulter. 18. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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