TMI Blog2019 (6) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... death, then his legal representative shall be liable to pay the dues out of the estate of the deceased to the extent to which the estate is capable of meeting the charge, the tax, interest or penalty due from such dealer under that Act or any earlier law. Thus, under clause (b) of subsection (1) of section 57 of the GVAT Act, the legal representative is liable to pay the dues out of the estate of the deceased to the extent to which the estate is capable of meeting the charge, the tax, interest or penalty due from the dealer. In the facts of the present case, the respondents do not seek to recover the dues from the dealer or from any estate of the deceased, but seek to recover the same from the property of the petitioner. Evidently, therefore, the provisions of clause (b) of subsection (1) of section 57 of the GVAT Act would not apply - Insofar as subsection (2) of section 57 of the GVAT Act is concerned, the same would not, in any manner, be applicable to the present case since it relates to property being partitioned amongst the members of a Hindu undivided family. In the absence of any power vested in the respondents to recover the dues of the deceased husband of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Taluka Idar, District Sabarkantha with building (hereinafter referred to as the subject property ) from the partners of M/s. Kailash Oil Industries for a consideration of ₹ 10,00,000/. Corresponding mutation entry was made in the revenue records on 26.12.2008. It is the case of the petitioner that the amount of consideration paid by her towards purchase of the above property was given to her by her brothers by way of gift and that the petitioner had allowed her husband to use the said property for the purpose of his business without any consideration. A formal agreement was also entered into by the petitioner with her husband. 4. The petitioner s husband Narendrabhai Pandya passed away suddenly in a road accident on 19.05.2010. Thereafter, the business of M/s. Umiya Oil Industries was discontinued. However, for the past period, tax dues totaling to approximately ₹ 1.60 crores were raised in the case of M/s. Umiya Oil Industries in assessments made under the GVAT Act for the years 2006-07, 2007-08 and 2008-09. While the firm was pursuing appellate remedies, the authority initiated coercive recovery proceedings. One of the steps taken by the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er requiring the petitioner to furnish income proof of her brothers to establish the source of ₹ 10,00,000/gifted to the petitioner. The petitioner submitted her reply dated 04.10.2017. Thereafter, the respondent authorities issued another notice dated 13.10.2017 contending that the subject property was liable to be attached under section 57(1)(b) and 57(2) of the GVAT Act. Despite the petitioner having made a number of representations for releasing the attachment over her property, the respondents refused to remove/withdraw the charge over the property on the ground that since the petitioner had not furnished the income proof of her brothers, the property in question was liable to be attached. Being aggrieved, the petitioner has filed the present petition. 7. Mr. Uchit Sheth, learned advocate for the petitioner, invited the attention of the court to the record of the case. It was submitted that it is an admitted position that upon the death of the husband of the petitioner, the business of M/s. Umiya Oil Industries was discontinued. The learned advocate drew the attention of the court to section 57 of the GVAT Act to point out that clause (a) of subsection (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n had purchased the property was a dealer as defined under the provisions of the said Act. 7.3 In support of his submissions, the learned advocate placed reliance upon the decision of this court in the case of Geetaben J. Patel v. Assistant Sales Tax Commissioner and Another, [2016] 91 VST 110 (Guj), wherein, it was observed that nothing had been brought on record to suggest that the property in question was purchased from the sources other than that of the petitioner herself. It was not the case of the Department that the sale transaction was benami transaction and that the husband of the petitioner had funded for purchase of the property. The court held that the Department was not justified in attaching the property of the petitioner for the dues of her husband and consequently, quashed the attachment of the property of the petitioner therein. 8. Opposing the petition, Mr. Soham Joshi, learned Assistant Government Pleader, reiterated the averments made in the affidavitinreply filed on behalf of the respondents, wherein it has been stated that the petitioner herein has challenged the assessment orders in the case of M/s. Umiya Oil Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay tax, interest or penalty due from such dealer under this Act or under any earlier law, and ( b) if the business carried on by the dealer is discontinued, whether before or after his death, his legal representative shall be liable to pay out of the estate of the deceased to the extent to which the estate is capable of meeting the charge, the tax, penalty or interest due from such dealer under this Act or under any earlier law,- whether such tax, interest or penalty has been assessed before his death but has remained unpaid or is assessed after his death. ( 2) Where a dealer, liable to pay tax under this 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 members shall jointly and severally be liable to pay the tax, interest or penalty due from the dealer under this Act or under any earlier law up to the time of the partition whether such tax, penalty or interest has been assessed before partition but has remained unpaid or is assessed after the partition . 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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