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TMI Blog2024 (12) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... a Society registered under the Andhra Pradesh Societies Registration Act, 2001, qualifies as an Association of Persons under Section 94 of the CGST/SGST Act? - HELD THAT:- The conditions required for creation of a Society under the Act of 2001 are in pari materia similar to the conditions set out in the Act of 1860. Further Sub-section 2 and Sub-section 3 stipulate that a Society in which un-incorporated association of individuals is a member or a firm is a member, is not liable to be registered under the Act of 2001. This would clearly indicate that a Society registered under the Act of 2001 meets all the requirements of a Society, as defined under the Act of 1860 - the Society would not fall within the purview of the term Association of Persons set out under Section 94 (1) of the CGST/SGST Act - no proceedings can be initiated against the petitioner, who was a member/Secretary of the Public Association, registered under the Act of 2001. Conclusion - The Society would not fall within the purview of the term 'Association of Persons' set out under Section 94 (1) of the CGST/SGST Act. A Society registered under the Andhra Pradesh Societies Registration Act, 2001, is distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrears of the Society and the requirement to attach the properties of the petitioner, for recovery of such dues. The details of the property that were sought to be attached were also set out in Form GST DRC-16. On this basis, the Sub-Registrar, Chodavaram, is said to have kept the properties in the prohibitory list. 3. The respondents contend that Section 94 of the CGST/ SGST Acts, empowers the Tax Authorities to recover the dues of any firm, association of persons or Hindu Undivided Family from any member of such a firm or association of persons. Accordingly, taxes were sought to be recovered from the petitioner, on the ground that he is a member of the Society, which is an association of persons. 4. The learned counsel for the petitioner would contend that such a view is impermissible. He contends that a Society has been dealt with separately under the GST Act itself and an association of persons cannot be treated as a Society. Consideration of the Court: 5. The Society was served with relevant assessment orders raising tax dues, etc. According to the respondents, the amount due from the Society is Rs. 2,04,04,378/-. This figure has not been disputed and shall be taken to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 94 of the CGST Act is helpful in understanding this term. The explanation reads as follows: Explanation . For the purposes of this Chapter,-- (i) a Limited Liability Partnership formed and registered under the provisions of the Limited Liability Partnership Act, 2008 (6 of 2009) shall also be considered as a firm; (ii) court means the District Court, High Court or Supreme Court. 10. The said explanation, states that a Limited Liability Partnership should also be considered as a firm. This would mean that the term Firm , under Section 94 (1) of the CGST Act, would be a partnership firm, registered or unregistered, under the provisions of the Indian Partnership Act, 1932, or the Limited Liability Partnership Act, 2008. Obviously, the Society does not answer the description of firm. The term Hindu Undivided Family is also not defined under the CGST Act. However, a Hindu Undivided Family , under the law, is understood to mean a Joint Family consisting of various coparceners, who are members of such a Hindu Undivided Family , on account of their birth. Strangers to the family cannot be a part of a Hindu Undivided Family . This leaves only an Association of Persons to be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this provision, is not a Society registered under the Act of 1860, but a Society, as defined under the Act of 1860. 14. Sections 1 2 of the Act of 1860, read as follows: 1. Societies formed by memorandum of association and registration. Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with the Registrar of Joint-Stock Companies form themselves into a society under this Act. 2. Memorandum of association. The memorandum of association shall contain the following things, that is to say,-- the name of the society; the objects of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association. 15. The purposes, in Section 20, are essentially literary, scientific or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 2001. This would clearly indicate that a Society registered under the Act of 2001 meets all the requirements of a Society, as defined under the Act of 1860. 18. In view of the above, it must be held that the Society would not fall within the purview of the term Association of Persons set out under Section 94 (1) of the CGST/SGST Act. 19. Consequently, no proceedings can be initiated against the petitioner, who was a member/Secretary of the Public Association, registered under the Act of 2001. 20. Accordingly, the Writ Petition is allowed, setting aside Form GST DRC-16, dated 29.07.2022, the communication of the 2nd respondent to the 3rd respondent, dated 03.11.2022, requesting the 3rd respondent not to permit alienation of the properties of the petitioner and the endorsment, dated 27.06.2023, issued by the 2nd respondent for taking action for recovery of the dues of the Society from the petitioner. 21. It shall also be open to the petitioner to deal with his property, as he so desires and the 3rd respondent shall receive and register any such documents, without reference to any of the claims made by the Commercial Tax Department, against the petitioner. However, it would be o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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