TMI Blog2016 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly dismissed. - Decided against the revenue. - Tax Appeal No. 751 of 2015, Civil Application (OJ) No. 679 of 2015 - - - Dated:- 16-10-2015 - Harsha Devani And A. G. Uraizee, JJ. For the Appellant : Ms Maithili Mehta, Asst Govt Pleader For the Respondent : Mr Manish K Kaji, Adv ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1 The appellant State of Gujarat has challenged the order dated 25th March, 2015 passed by the Gujarat Value Added Tax Tribunal at Ahmedabad (hereinafter referred to as the Tribunal') in Second Appeal No.1056 of 2014 by proposing the following two questions, stated to be substantial questions of law: [1] Whether the Hon'ble Tribunal has erred in law and in facts in holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 thereof, which makes provision for liability in other cases and more particularly to sub-section (1) thereof, to submit that in the light of the provisions of section 57 and 58 of the Act, the Commercial Tax Officer was justified in attaching the property under section 45 of the GVAT Act. 4. On the other hand, Mr. Manish Kaji, learned advocate for the respondent supported the impugned order by submitting that the Tribunal has duly considered the facts of the case and recorded a finding of fact to the effect that the property which is sought to be attached under section 45 of the GVAT Act is the property of Shilpaben P. Shah, wife of the karta of the HUF, which has been purchased by her out of the amounts gifted to her by her father, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings of assessment or reassessment of turnover escaping assessment the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to do so, he may by order in writing attach provisionally any property belonging to the dealer in such manner as may be prescribed. Sub-section (2) thereof provides that every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (1) of section 45. On a plain reading of subsection (1) of section 45 of the GVAT Act, it is clear that for the purpose of protecting the Government revenue, the Commissioner can attach provisionally, any property belonging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily has discontinued the business. Under the circumstances, the question of invocation of section 58 of the GVAT would also not arise. Besides, both sections 57 and 58 of the GVAT Act envisage crystallised liabilities and cannot be invoked during the pendency of the assessment proceedings. 8. Another aspect of the matter is that the expression 'dealer' has been defined under section 2(10) of the Act to mean any person who, for the purpose of or consequential to his engagement in or, in connection with or incidental to or in the course of his business buys, sells, manufactures, makes supplies or distributes goods for cash or for commission, remuneration or otherwise, which means any person who satisfies the requirement of that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Rules contemplate that the notice for payment of the tax arrears may be issued against the assessee, and proceedings for recovery of the tax may be taken against the assessee alone. Under the Income-tax Act, 1961, a Hindu Undivided Family is a distinct taxable entity, apart from the individual members who constitute that family. Section 4 of the Income-tax Act charges to tax for any assessment year the total income of the previous year of every person and 'person' is defined in Section 2 (31) as including- (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be attached under section 45 of the GVAT Act. The impugned order passed by the Tribunal does not suffer from any legal infirmity so as to give rise to any question of law, much less a substantial question of law, warranting interference. The appeal, therefore, fails and is accordingly dismissed. 10. It may also be noted that the initial attachment order was for a period of six months. The learned Assistant Government Pleader has stated under instructions that the attachment has not been extended thereafter and hence, the attachment is no longer effective. OJ Civil Application No.679 of 2015: In light of the order passed in the main appeal, this application for stay does not survive and stands disposed of accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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