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2011 DIGILAW 1120 (CAL)

Manksia Exim Pvt. Ltd. v. Tax Recovery Officer, Kolkata & 24 Parganas

2011-08-17

INDIRA BANERJEE

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JUDGMENT INDIRA BANERJEE, J.: 1. In this writ application the petitioner has challenged an order of attachment dated 17th March, 2011, whereby the Recovery Officer has purported to attach the movable goods of the tenant of Premises No.7, Rabindra Sarani, Calcutta – 700 001, that is the petitioner, on the ground that Certificate debtor is no more. 2. Since the issues involved in this writ application are mainly issues of law, that is the validity of the notice impugned, this Court does not deem it necessary to call for affidavits. It is patently clear from the impugned notice that the Recovery Officer has proceeded on the basis that movable goods attached are those of the tenant, M/s. Manksia Exim Pvt. Ltd. and its Director, Mr. Navneet Agarwal. The goods of the tenant have been attached because the certificate debtor is no more. 3. It appears that certificate proceedings were initiated against Sri Radha Kishan Goenka and Sri Dipak Goenka, partners of M/s. Universal Enterprises pursuant to which the Recovery Officer issued an order of attachment dated 17th March, 2011, which is impugned in this writ petition. 4. On the face of the impugned order, the movable goods of the tenant at premises no.7, Rabindra Sarani, First Floor, Calcutta – 700 001 have been attached and kept under lock and key because the defaulting assessee was no more. It is not understood how the movable goods of a tenant could be attached to realise the dues of a defaulting assessee. 5. Mr. Dutta appearing on behalf of the respondents submits that none of the rent receipts annexed, were actually signed by Sri Radha Kishan Goenka or Sri Dipak Goenka. The rent receipts have apparently been signed on behalf of Radha Kishan Goenka. 6. It is not for this Court exercising jurisdiction under Article 226 of Constitution of India to adjudicate disputed questions of fact. In this context, it may be pertinent to record Ms. Sanyal’s submission that the petitioner is an assessee whose address is shown as 7, Rabindra Sarani, First Floor, Calcutta – 700 001. A certificate of registration has also been issued by the concerned Sales Tax authorities a copy of which has been annexed to the writ petition as Annexure ‘P-4’. 7. Sanyal’s submission that the petitioner is an assessee whose address is shown as 7, Rabindra Sarani, First Floor, Calcutta – 700 001. A certificate of registration has also been issued by the concerned Sales Tax authorities a copy of which has been annexed to the writ petition as Annexure ‘P-4’. 7. Be that as it may, the Recovery Officer has himself proceeded on the basis that the goods attached are of a tenant and this is evident from the order impugned. From the impugned order of attachment, it is patently clear that the goods have not been attached on the belief or even suspicion of the goods being the goods of the defaulting assessee. 8. Mr. Dutta, appearing on behalf of the petitioner, has taken a preliminary objection to the jurisdiction of this Court to entertain the writ application. It is submitted that the writ application pertains to recovery of taxes. An application would have to be filed in the West Bengal Taxation Tribunal constituted under the West Bengal Taxation Tribunal Act, 1997. Reference was made to Sections 5 and 6 of the Taxation Tribunal Act under which an assessee has to approach the Taxation Tribunal. 9. In the instant case, the goods of a third party having been attached. It is difficult to accept the submission that this Court lacks jurisdiction to entertain the writ application. There is no levy, assessment or recovery of dues so far as the petitioner is concerned. 10. In no circumstances can the goods of third persons be attached to recover dues of defaulting assesses. The goods of a tenant or for that matter goods of any person other than the defaulting assessee cannot be attached to recover the dues of the defaulting assessee. 11. The respondents should forthwith release the goods of the petitioner, in any case within one week from the date of communication of this order. 12. This order will not, however, prevent the respondent authorities from retaining any goods, which might be found to belong to the defaulting assessee. 13. As this Court did not deem it necessary to call for affidavits, the allegations in the writ petition save those which are matters of record shall be deemed not to have been admitted. 14. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of the requisite formalities.