TMI Blog1990 (10) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... tyle of M/s. Marudhara Lime Works in a kiln. He had immovable properties near it. He was a registered dealer under the Rajasthan Sales Tax Act, 1954 (hereinafter to be called "the Act") and Central Sales Tax Act, 1956. For the period from April 1, 1974 to March 31, 1975, he was assessed by the Assistant Commercial Taxes Officer, Circle B, Jodhpur (non-petitioner No. 4) and a demand of Rs. 15,685.26 was raised as tax vide assessment order dated June 22, 1976. Certain amount was recovered from him and Rs. 17,945.26 remained outstanding against him. The assessing authority (non-petitioner No. 4) moved the Commercial Taxes Officer, B Circle, Jodhpur (non-petitioner No. 3), exercising powers of the Collector under the Rajasthan Land Revenue Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs have admitted almost all the facts averred in the writ petition. It has been averred that the petitioner is liable to pay the said amount and his properties have rightly been attached. 4.. It has been contended by the learned counsel for the petitioner that the assessee, Srikrishna, had simply transferred his lime kiln and the adjoining buildings, he did not transfer his business, the provisions of section 9(1) of the Act are not attracted in this case, the non-petitioner No. 3 could proceed to recover the said amount from the petitioner only after a finding is recorded by the non-petitioner No. 4 to the effect that the petitioner is liable to pay the said amount under section 9(1) of the Act and in the absence of any finding to this e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under section 9(1) of the Act. It runs as under: "9. Liability on transfer of business or on discontinuance or dissolution of business of a firm, etc.-(1) When the ownership of the business of a dealer liable to pay the tax is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer, shall be payable by the transferee, as if he were the dealer liable to pay such tax; and the transferee shall also be liable to pay tax on the sale or purchase of goods effected by him with effect from the date of such transfer and shall within thirty days of the transfer, apply for registration unless he already holds a certificate of registration." The non-petitioners have clearly stated at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in the proviso of section 11AAA refers to the dealer (transferor) and not to the transferee. As such the said transfer cannot be said to be void within the meaning of section 11AAA of the Act. Section 11AAA of the Act runs as under: "11AAA. Transfer to defraud revenue void.-Where during the pendency of any proceedings under this Act, any dealer creates a charge on or parts with the possession by way of sale, mortgage, exchange, or any other mode of transfer whatsoever, of his immovable property in favour of any other person with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable under this Act by the dealer as a result of the completion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been passed on January 24, 1978, there was no question of satisfying Shri Mehta on April 6, 1979. It can thus be said that the objections of the petitioner were not decided and no finding was recorded either by the non-petitioner No. 3 or the non-petitioner No. 4 that the petitioner is liable to pay the said amount before issuing warrant for the attachment of his personal movable and immovable properties. In the absence of such a finding, no action against the petitioner could be taken in connection with the recovery of the said amount. It has been observed in Doma Sao Mohanlal v. State of Bihar [1971] 27 STC 473 (SC) at page 476 as follows: "Without deciding that the business in respect of which the liability to pay tax arose was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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