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TMI Blog2021 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding in impugned notice dated 26.12.2005 has not maintainable. 3. The brief facts of the case are both the petitioners are the Niece and Nephew of one Mr.K.Y.Gaitonde, who was carrying on the business under the Name and Style of M/s.Gomukhi Charma Kendra (referred to as the proprietor). The said proprietor was engaged in manufacture and sale of footwear, leather and leather products etc. M/s.Gomukhi Charma Kendra, the proprietary concern of the Proprietor Mr.K.Y.Gaitonde was in arrears of tax and therefore the tax arrears of the said proprietary concern of the proprietor Mr.K.Y.Gaitonde viz., M/s.Gomukhi Charma Kendra was sought to be fastened on the respective petitioners as these petitioners entered in to a partnership firm arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.K.Y.Gaitonde, the impugned notice dated 26.12.2005, have been issued to both the petitioners along with Mr.K.Y.Gaitonde. Apart from these three persons, notice has been issued to one Mrs.V.R.Gaitonde, the wife of the writ petitioner in W.P.Nos.6141 & 6142 of 2006. 7. The relevant portion of the impugned notice in the respective writ petitioner reads as under:- "It is seen from the assessment records of Tvl.M/s.Gomuki Charma Kendra (Partnership Concern) that all the Assets and Liabilities including closing stock of the proprietary concern held by Thiru.V.R.Gaitonde, were taken over by the partnership concern on 29.03.2002. Thus the present partners of the firm Tvl.Gomuki Charma Kendra, are liabe for clearing of arrears due by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the petitioners were ready to co-operate with the Commercial Tax Department and it was still open for the Commercial Tax Department to initiate proceedings against the assets of the defaulter Mr.K.Y.Gaitonde, in his capacity as the proprietor of M/s.Gomukhi Charma Kendra who was an assessee in default. 11. The learned counsel for the petitioners submitted that the petitioners have compiled details of several assets of Mr.K.Y.Gaitonde, which were transferred and it was open for the Commercial Tax Department to proceed against the assets under Section 24(A) of the TNGST Act, 1959. It is further submitted that though the impugned notice dated 26.02.2005 is titled as notice, it is indeed an order inasmuch as, it has left no choice and calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1957, which is pari materia with Section 27 of the TNGST Act, 1959 held as follows:- "11................. Hence, the mere transfer of one or more spices 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*. In our view, therefore, section 15(1) is intended to operate only when there is complete transfer of "ownership of business" so as to render the transferee as a successor-in-interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut for revision as it is only a notice calling upon the petitioners to pay the amount and therefore, the revision application has been rightly rejected vide impugned orders dated 07.02.2006 referred to supra. 18. I have considered the arguments advanced by the learned counsel for the petitioner and the respondents. 19. There is no dispute that there was a transfer of ownership of business of the proprietary concern of Mr.K.Y.Gaitonde to the newly constituted partnership firm. The proprietary concern also which also took over the name M/s.Gomukhi Charma Kendra of the proprietary concern of Mr.K.Y.Gaitonde. Thus, all the assets including good will of the erstwhile proprietary concern of Mr.K.Y.Gaitonde was taken over by the partnership firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the recovery from the transferee of the arrears of taxes due for the period prior to the date of the transfer shall be limited to the value of the assets he obtained by transfer." 21. Therefore, it was incumbent on the part of the respondents to particularize the extent of liability to which they can be exposed while issuing notice under Section 27 of the TNGST Act, 1959. However, the impugned notice dated 26.12.2005 has not given the particulars instead straight away calls upon the petitioners to pay arrears of tax liability of the said proprietary concern namely Mr.K.Y.Gaitonde, whose business was taken over by the partnership concern represented by the petitioners and the said Mr.K.Y.Gaitonde. Since the impugned communications does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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