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The State of Gujarat Versus Jwelly Tea Co.

2016 (2) TMI 94 - GUJARAT HIGH COURT

Recovery of outstanding dues - liability of members of HUF is not joint or several - property under attachment was acquired by the member or by the HUF - GVAT - discontinuance of the business of Hindu Undivided Family - Held that:- 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. - The impugned order passed by the Tribunal does not suffer from any legal infirmity so as to give .....

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at 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 that the property was acquired by the member and not by the HUF? [2] Whether the Hon'ble Tribunal has erred in law and in facts in holding tha .....

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rta of the HUF. The assessee carried the matter in appeal before the first appellate authority, which dismissed the appeal on merits. The assessee carried the matter in second appeal before the Tribunal and succeeded. 3. Ms. Maithili Mehta, learned Assistant Government Pleader, assailed the impugned order by submitting that the Tribunal has erred in not appreciating that the liability of the members of the Hindu Undivided Family is joint and several. Accordingly, even if the property belongs to .....

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ns 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 .....

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e respondent, a registered dealer, is an HUF. Property belonging to the wife of the karta of the HUF came to be attached under section 45 of the GVAT Act in connection with the outstanding dues of the HUF. The Tribunal, in the impugned order has recorded a finding of fact to the effect that the flat stood in the name of one Bhanuben Shantilal which was transferred in favour of Shilpaben P. Shah on 29th April, 1998. The price of the property paid by Shilpaben P. Shah was ₹ 4,65,000/-. Such .....

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makes provision for provisional attachment and lays down that during the pendency of 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 .....

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ently, therefore, the provisions of section 45 could not have been resorted to in the facts of the present case. 7. Insofar as the provisions of sections 57 and 58 of the GVAT Act are concerned, sub-section (2) of section 57 which is relevant for the present purpose provides that where a dealer, liable to pay tax under the Act is a Hindu Undivided Family and the property of the Hindu Undivided Family is partitioned amongst the various members or groups of members then, each member or group of me .....

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rs so as to make the wife of the Karta of the HUF liable for its tax liability. As regards the provisions of section 58 of the GVAT Act, the condition precedent for invocation thereof is the discontinuance of the business of Hindu Undivided Family. In the present case it is not the case of the respondent that the Hindu Undivided Family 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 5 .....

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on or otherwise, which means any person who satisfies the requirement of that sub-section. Sub-section (15) of section 2 of the GVAT Act defines person' to include an individual, a joint family or Hindu Undivided Family, etc. Therefore, the Act recognises a Hindu Undivided Family as a dealer and as a person. 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 .....

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rd it to the Tax Recovery Officer specifying the amount of arrears due from the assessee. The amount due may be recovered by resort to any one or more of the four modes prescribed by Sec. 222 of the Act. If the defaulter fails to comply with a notice issued by the Tax Recovery Officer requiring the defaulter to pay the amount within fifteen days from the date of the service of the notice, proceedings for recovery may be taken against the assessee for recovery of the tax. But under the scheme of .....

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ome 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 juridical person, not falling within any of the preceding sub-clauses. The Legislature having treated a Hindu undivided family as a taxable entity distinct from the individual mem .....

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