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TMI Blog2024 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority provided such appeal is presented within a maximum period of two weeks from the date of receipt of a copy of this order. - Honourable Mr. Justice Senthilkumar Ramamoorthy For the Petitioner : Mr.Vijay Narayan, Senior Advocate, for Mr.N.Viswanathan For the Respondents : Mr.Umesh Rao K, Senior Standing Counsel for R1 R2 ORDER The petitioner challenges an order dated 16.02.2023 attaching the property of the partnership firm in respect of a tax demand of Rs. 79,09,965/- and also seeks a direction to the 2nd respondent to provide a certified copy of the order confirming the tax demand. 2. The petitioner is a partnership firm engaged in the business of construction of residential properties on joint venture basis. The said firm was registered under the Finance Act, 1994 as a registered person. Upon receipt of a show cause notice dated 15.07.2020, the petitioner issued a letter dated 24.03.2021 requesting for a postponement of the scheduled hearing. Thereafter, a detailed reply was issued by the petitioner, through its counsel, on 18.08.2021. According to the petitioner, no order was communicated by the first and second respondents after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds rebutted by the documents placed on record with regard to the shifting of the registered office and the repeated requests for a certified copy of the order. 6. Learned senior counsel further submits that the petitioner has already remitted about Rs. 5 lakhs and that this amount is more than the remittance required as a pre-condition for presenting a statutory appeal. By taking into account the fact that the petitioner did not receive a copy of the order in original until the same was filed on or about 18.12.2023 by learned senior standing counsel for the first and second respondents, it is submitted that the petitioner be permitted to present and prosecute a statutory appeal. 7. In response to these submissions, learned senior standing counsel for the first and second respondents raises a preliminary objection. He contends that a partnership firm is not entitled to file a writ petition on behalf of the partners of such firm. He submits that all the partners should join hands and file the writ petition and that the present writ petition is liable to be dismissed on the basis of this preliminary objection. In order to substantiate this contention, he relied upon the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of person or body of individuals, whether incorporated or not, (viii) Government, (ix) a local authority, or (x) every artificial juridical person, not falling with any of the preceding sub-clauses; Similar provisions are also contained in other tax statutes such as the Income-tax Act, 1961. In fact, the judgments relied upon by learned senior standing counsel also draw reference to this distinction between 'person' in tax and non-tax contexts. For instance, in paragraphs 17 and 18 of the Division Bench of the judgment of the Allahabad High Court in Agarwal Stone Mill , the Allahabad High Court set out the definition of person in Section 2(32) of the Income-tax Act and concluded that a firm under the Income-tax Act is a separate and distinct legal entity chargeable to Income Tax. Likewise, in paragraph 15 of the State of Punjab v. Jullunder Vegetables Syndicate, the Hon'ble Supreme Court held that a firm is a legal entity both under income-tax and sales-tax law. Thus, for purposes of service tax law, the petitioner, which is a partnership firm, is the assessee and, therefore, the person aggrieved by the order of attachment. For such reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person owns any property or resides or carries on his business and the said [Commissioner] 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; or ii) the proper officer may, on an authorisation by a [Principal Commissioner of Customs or Commissioner of Customs] and in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person: [PROVIDED that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid, transfers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to indicate that the communication was received on behalf of the petitioner. The acknowledgment bears the rubber stamp of the firm. As against this, learned senior counsel for the petitioner pointed out that the petitioner had engaged the services of a lawyer and issued a detailed reply. Since the petitioner had not received any order pursuant to the reply dated 18.08.2021, he pointed out that the petitioner sent communications to the first and second respondents requesting for copies of the order and pointing out that the registered office had been shifted. Admittedly, these communications were not replied to although such communications were received as indicated by the rubber stamp on the respective letters. The requested certified copy was also not provided to the petitioner. Eventually, according to the petitioner, the copy of the order was received only on 18.12.2023 when the order was enclosed in the typed set filed by the learned senior standing counsel. Learned senior standing counsel, however, points out that a copy of the order was served earlier when the writ petition was moved. 13. In the writ petition, the petitioner assailed only the attachment order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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