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2019 (6) TMI 894 - HC - VAT and Sales TaxDeletion/withdrawal of the charge - Recovery of dues - Gujarat Value Added Tax Act, 2003 - whether the respondents are justified in creating a charge over the subject property for recovering the dues of M/s. Umiya Oil Industries of which the petitioner’s husband was the Proprietor, which, according to the petitioner, is property purchased by her from her stridhan? HELD THAT:- In the facts of the present case, it is not disputed that the business carried on by the petitioner’s husband was discontinued after his death. Therefore, clause (a) of subsection (1) of section 57 of the GVAT Act will not apply and hence, the legal representative would not be liable to pay the tax, interest or penalty due from such dealer under the Act or in earlier years. Insofar as clause (b) of subsection (1) of section 57 is concerned, the same would be applicable in the facts of the present case as the same provides that where a person, who has been a dealer, liable to pay tax under the Act dies and if the business carried out by such dealer is discontinued, whether before or after his death, then his legal representative shall be liable to pay the dues out of the estate of the deceased to the extent to which the estate is capable of meeting the charge, the tax, interest or penalty due from such dealer under that Act or any earlier law. Thus, under clause (b) of subsection (1) of section 57 of the GVAT Act, the legal representative is liable to pay the dues out of the estate of the deceased to the extent to which the estate is capable of meeting the charge, the tax, interest or penalty due from the dealer. In the facts of the present case, the respondents do not seek to recover the dues from the dealer or from any estate of the deceased, but seek to recover the same from the property of the petitioner. Evidently, therefore, the provisions of clause (b) of subsection (1) of section 57 of the GVAT Act would not apply - Insofar as subsection (2) of section 57 of the GVAT Act is concerned, the same would not, in any manner, be applicable to the present case since it relates to property being partitioned amongst the members of a Hindu undivided family. In the absence of any power vested in the respondents to recover the dues of the deceased husband of the petitioner from the property of the petitioner, the charge created over the subject property of the petitioner is without any authority of law. In the opinion of this court, merely because the petitioner has challenged the assessment orders and has prosecuted the matter before the appellate authority would not amount to continuance of business, as contemplated under clause (a) of subsection (1) of section 57 of the Act - The respondents are therefore, not justified in seeking to recover the dues of the petitioner’s deceased husband from property belonging to the petitioner which renders the charge entered under the GVAT Act on the subject property unsustainable. The respondents are directed to delete/withdraw the charge entered over the subject property belonging to the petitioner located at Survey No.71, Gambhirpura, Taluka Idar, District Sabarkantha for the tax dues of M/s. Umiya Oil Industries - petition allowed.
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