Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (2) TMI 94 - GUJARAT HIGH COURT

2016 (2) TMI 94 - GUJARAT HIGH COURT - [2016] 90 VST 501 (Guj) - 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 th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

able 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 that the property was acquired by the member and not by the HUF? [2] Whether the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ct ) attaching the properties of Shilpaben P Shah, wife of the karta 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

-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 GV .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ismissed. 5. The facts as emerging from the record reveal that the 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ay be made to the provisions of section 45 of the GVAT Act, which 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 ( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the property in question does not belong to the dealer. Evidently, 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 vari .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Hindu Undivided Family have been partitioned amongst its members 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

plies or distributes goods for cash or for commission, remuneration 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 constit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ound to be in default, issue a certificate for recovery and forward 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 again .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

come-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 juridical person, not falling within any of the preceding sub-clauses. The Legislature having treated a Hindu undi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version