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2005 (3) TMI 163 - HIGH COURT OF GUJARAT AT AHMEDABADRecovery of sums due to Government - implementation and enforcement of the notices - Whether letter dated 5th October, 2004 and notice of demand dated 19th November, 2004 could have been issued by respondent Nos. 4 and 3 respectively - HELD THAT:- Admittedly, in the present case the petitioner does not owe any monies payable to Divya, nor is it possible to term the petitioner as a defaulter. In fact the entire case of the department is built on the proviso to the main provision. Merely because Divya has shown its address in the office record of the respondents as per the location of the plot in question that by itself is not sufficient for the purpose of applying either provision of Section 11 or proviso thereunder. Similarly so far as the second reason is concerned if provisions of Section 11 of the Act are applicable viz. the requisite condition postulated by the provision stands fulfilled it would empower the respondent to effect recovery from the successor, but the question whether Divya is or is not predecessor of the petitioner has not been answered by the respondent authorities. As already seen, it is not possible to term the petitioner as successor of Divya. And lastly the stand of the Revenue that who is the transferor of the property is not material is an incorrect reading of the provision. The Proviso to Section 11 of the Act specifically requires that the person who is the defaulter is termed as predecessor and only in case the predecessor transfers the business or trade or ownership thereof then the provision of the proviso is attracted. Therefore, it is not possible to uphold the action of respondent authority in calling upon the petitioner to discharge liabilities of Divya for the reasons stated hereinbefore. It is necessary to take note of the fact that no evidence has been placed on record to show that Divya has transferred its business or trade or ownership thereof in favour of the petitioner. The impugned letter dated 5th October, 2004 and notice of demand dated 19th November, 2004 issued by respondent No. 4 and 3 respectively are hereby quashed and set aside. The petition is accordingly allowed. Rule made absolute. There shall be no order as to costs.
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