TMI Blog2010 (12) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted in favour of the petitioner - company by the fourth respondent - National Textile Corporation Limited - In pursuance of the same, the petitioner has become the absolute owner of the said properties - As per the Full Bench of this Court in B.Suresh Chand vs. State of Tamil Nadu , wherein, while dealing with a similar provision in Tamil Nadu General Sales Tax Act, the Full Bench has also taken the similar view falling in line with the view taken by the Division Bench in R.K.Steels' Company's case as well as the Judgment of the Hon'ble Supreme Court , held that the petitioner has not got the business or trade of either M/s.Balaramaverma Textile Mills Limited or the fourth respondent transferred and since the petitioner has got by transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile so, it came to light that M/s.Balaramaverma Textile Mills Limited had fallen in arrears to the tune of Rs.12,00,000/- towards excise duty and penalty of Rs.10,000/- payable under the Central Excise Act, 1944 to the third respondent. Therefore, the third respondent, by his proceedings in OC.No.715 of 2007 dated 05.10.2007, issued a notice to the petitioner to pay the said amount together with interest at the rate of 13% per annum. The petitioner, by means of a reply dated 24.10.2007, refuted the said liability. Thereafter, the second respondent issued proceedings dated 23.01.2008 under Section 11 of the Central Excise Act, 1944 and Section 142 of the Customs Act, 1962 to recover the arrears from the petitioner. The said order is under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed under which the property above mentioned were conveyed in favour of the petitioner herein. It is needless to point out that the right of the petitioners is fully protected by virtue of specific provisions of Transfer of Property Act. 6. I submit that the 4th respondent as owner of M/s.Balaramaverma Textile Mills Limited is liable for the legitimate dues payable to the statutory authorities particularly the first respondent herein. Since the 4th respondent do not dispute the legitimate statutory liability, it is not proper on the part of the first respondent to issue the impugned communication without reference to the fourth respondent herein. The fourth respondent has not objection for the above Writ Petition being allowed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such persons resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Provided that where the person [hereinafter referred to as predecessor] from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent -National Textile Corporation Limited has admitted his liability to pay the dues on behalf of the M/s.Balaramaverma Textile Mills Limited. But, insofar as the petitioner - company is concerned, there has been no such transfer of either business or trade by the fourth respondent - National Textile Corporation Limited. Instead, what has been transferred is only certain properties belonging to the M/s.Balaramaverma Textile Mills Limited, which stood transferred with the fourth respondent - National Textile Corporation Limited. Therefore, in my considered opinion, the petitioner, who has purchased some properties and not transferee of the trade or business, is not liable to pay dues as provided in the proviso to Section 11 of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, directed with a certain purpose, more often towards producing income or profit. Ownership of assets is merely an incident rather than a characteristic of business. Hence, the mere transfer of one or more species of assets does not necessarily bring about the transfer of the "ownership of the business" for "ownership of a business" is much wider than mere ownership of discrete or individual assets. In fact, "ownership of business" is wider than the sum of the ownership of a business' constituent assets. Above all, transfer of "ownership of business" requires that the business be sold as a going concern. Commissioner of Income Tax v. K.H.Chambers, 1965 SCR 43 at p49. In our view, therefore, Section 15(1) is intended to operate only when th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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