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2019 (8) TMI 715 - HC - VAT and Sales TaxAttachment of self acquired property - arrears of tax revenues - Gujarat VAT Act - whether the self-acquired property of the ownership of the writ applicant who is neither dealer nor agent, could have been attached for the purpose of recovering the dues payable by the respondent No.3 under the Act, 2003? HELD THAT:- Once the liability of the defaulting dealer is assessed and fixed, the next step would be to recover the requisite amount with penalty or interest. Such amount can be recovered by the authorities under the Act, 2003 by way of land revenue measures as provided under the Bombay Land Revenue Code. Two things are very amply clear. The property of the ownership of the defaulting dealer can only be provisionally attached. The language of the statute is very clear. Section 45 provides that “he may by order in writing attach provisionally any property belonging to the dealer”. In such circumstances, in the first instance, the property which is of the ownership of the writ applicant could not have been attached for the purpose of recovery of the amount of tax, penalty or interest due and payable by the respondent No.3. It is not the case of the department that the writ applicant has defaulted, in any manner, with regard to payment of the tax under the Act, 2003. The argument of the learned AGP that the writ applicant would fall within the ambit of the words “other person” as figuring in Section 46 of the Act, 2003 deserves to be outright rejected. In the case of State of Gujarat vs. Jwelly Tea Co. [2016 (2) TMI 94 - GUJARAT HIGH COURT] it was held that The legislature having treated a Hindu Undivided Family as a taxable entity, distinct from the individual members constituting it, it was not open for the appellant to attach the movable properties of an individual member - the Tribunal was wholly justified in holding that the property of the individual member of the Hindu Undivided Family could not be attached under section 45 of the GVAT Act. One aspect which needs to be clarified is that only the land belongs to the writ applicant. The writ applicant is neither dealer nor the agent but he is father of the dealer. The property which has been attached is self acquired property of the writ applicant. Therefore, the land of the ownership of the writ applicant could not have been attached. Application allowed.
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