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2013 DIGILAW 1343 (MAD)

M. Andal v. Commercial Tax Officer, Gudiyatham

2013-03-14

V.DHANAPALAN

body2013
Judgment :- 1. Heard Mr. Hariharan, learned counsel appearing for Mr. S. Ravee Kumar, learned counsel for the petitioner and Mr. Manoharan Sundaram, learned Government Advocate (Tax) appearing for the respondents. 2. The petitioner is the mother-in-law of one Mr. Mohan, whose liability was fixed by the respondents and thereafter, recovery proceedings have been initiated and hence, he has come before this Court for issuance of a writ of Mandamus forbearing the respondents from proceeding further against the properties of the petitioner at 58/92, Basaveswara Street, Bhuvaneswari Pettai, Gudiyatham, Vellore District. 3. It is the case of the petitioner that one Siva Traders represented by Proprietor Mr. K.Mohan, is a registered dealer with the respondents and the said dealer had committed default in payment of sales tax for the Assessment years 2002-2003, 20032004, and 2004-2005. By a notice, dated 10.04.2006, the second respondent had proposed to bring the property at 58/92, Basaveswara Street, Bhuvaneswari Pettai, Gudiyatham, Vellore District for auction sale on 26.04.2006, alleging that the petitioner's husband had given the above property as security for the arrears payable by Mr. Mohan and the said allegation was not supported by any evidence. 4. The petitioner had immediately contacted Mr. Mohan, the proprietor of Siva Traders, who in turn informed the petitioner that the complaint preferred by the second respondent relating to arrears, had been dismissed by the Sub-Court, Gudiyatham on 04.11.2004 hence, there cannot be any attachment of the petitioner's property and he further informed the petitioner that he will take up the issue with the respondents. After two years, the first respondent again by notice, dated 03.10.2008 proposed to bring the property for auction sale on 22.10.2008, against which, a representation, dated 20.10.2008 was made to the respondents to defer from proceeding against the petitioner's property. 5. The respondent has filed their counter stating that one Mr. K.Mohan, Proprietor of Siva Traders, Dealer in Edible Oil at No.13-A, Kannagi Street, Nadupet, Gudiyatham, was a registered dealer in the books of the Deputy Commercial Tax Officer, Gudiyatham Assessment Circle with TNGST No.557709 and CST No.359753 up to 31.03.1995. His accounts for the years 1992-93, 1993-94 and 1994-95 were checked and assessment was made to the best of judgment based on the inspection results of their place of business and extract verification. This has resulted in accrual of arrears amounting to Rs.27,15,961/-. His accounts for the years 1992-93, 1993-94 and 1994-95 were checked and assessment was made to the best of judgment based on the inspection results of their place of business and extract verification. This has resulted in accrual of arrears amounting to Rs.27,15,961/-. In order to realise the arrears, an application was filed under Section 24(2)(b) of the Tamil Nadu General Sales Tax Act, 1959 (for short, "the TNGST Act") before the Sub-Court, Gudiyatham and the same was dismissed on 04.11.2004. On perusal of the Registration Certificate, it was found that the father-in-law of the defaulter has offered his immovable house property as surety on stamp paper, with an undertaking that he would settle the tax arrears, if any left by his son-in-law. Therefore, the Department attached the above property by issue of Forms 1, 4, 5, 7 and 7-A published the auction sale of the above property in the Government Gazette and brought the property into public auction sale. Lastly, the auction sale was fixed on 27.05.2009. Aggrieved by the same, the petitioner, who is the wife of the surety, has preferred this writ petition for the above relief. 6. In the counter affidavit of the respondents, it is stated that though the contention of the petitioner that the application filed under Section 24(2)(b) of the TNGST Act was dismissed by the Sub-Court, Gudiyatham on 04.11.2004 is correct, the defaulter did not take up the matter with the respondents-Department, as contended. Since the defaulter did not take any steps to pay the arrears and the action taken against him proved futile, the Department has no other go, except to proceed against the surety's property under the Revenue Recovery Act. Therefore, the respondents prayed for dismissal of the writ petition. 7. I have heard the learned counsel appearing for the parties and perused the material documents available on record. 8. The main focus of the arguments of the learned counsel for the parties is that the petitioner is no way connected to the proceedings initiated in recovery of the amount due to the respondents and the petitioner's property has been taken into account and the action of the respondents in bringing the property to public auction cannot be sustained. 9. The main focus of the arguments of the learned counsel for the parties is that the petitioner is no way connected to the proceedings initiated in recovery of the amount due to the respondents and the petitioner's property has been taken into account and the action of the respondents in bringing the property to public auction cannot be sustained. 9. Per contra, the learned Government Advocate contended that there was default in payment of sales tax for successive assessment years and after following the due procedures, notice was issued to the parties concerned for bringing the property to public auction, as the property has been given in guarantee to the respondents, in default of paying tax. Such a course adopted by the respondents is in accordance with law and therefore, the proceedings initiated under the Revenue Recovery Act cannot be found fault with. 10. It is seen that Mr. P.Mohan, Proprietor of Siva Traders was a registered dealer with the respondents and there was tax due for the assessment years 2002-2003, 20032004 and 2004-05 and thereafter, a notice was issued on 10.04.2006 by the second respondent and inter-alia, there was a proposal to bring the property at 58/92, Basaveswara Street, Bhuvaneswari Pettai, Gudiyatham, Vellore District, for auction on 26.04.2006 and thereafter, the first respondent, on considering the request made by the petitioner through Mr. Mohan, kept the matter pending and thereafter, issued a notice again on 03.01.2008 and the property was brought on auction sale on 22.10.2008. 11. The respondents inspected the place of business and also verified the records. The total accrued arrears amounting to Rs.27,15,961/- had to be realised and therefore, they made an application before the competent forum under Section 24(2)(b) of the TNGST Act, before the Sub-Court, Gudiyatham and it was dismissed on 04.11.2004. 12. On a perusal of the Registration Certificate, it is seen that the father-in-law of the defaulter has offered his immovable house property as surety on stamp paper, with an undertaking to pay tax levied on the son-in-law. Therefore, the Department attached the above property by issuing Forms 1,4,5,7 and 7-A, published the auction sale of the above property in the Government Gazette and brought the property into public auction sale and the same was fixed on 27.05.2009. Therefore, the Department attached the above property by issuing Forms 1,4,5,7 and 7-A, published the auction sale of the above property in the Government Gazette and brought the property into public auction sale and the same was fixed on 27.05.2009. Since the defaulter did not take any steps to pay the arrears, action was taken against him under the Revenue Recovery Act, which is in no way contrary to the established rule of law. 13. On a perusal of the records, it is also seen that the father-in-law of the defaulter, namely Manickam has given a letter to the second respondent as follows:- “Tamil” 14. As the husband of the petitioner, who is the father-in-law of the defaulter, has guaranteed his house property to the respondents, the respondents have proposed to attach the property and realise the amount by auction sale before Sub-Court, which is completely in adherence to the law. 15. Considering the entire factual matrix of the case as well as the settled legal position of the Courts, the default made by the petitioner is no way valid. Therefore, the Mandamus sought for by the petitioner to restrain the respondents from proceeding against the property in question, is unsustainable and accordingly, the writ petition deserves no merit consideration and the same is dismissed. However, there is no order as to costs. Consequently connected miscellaneous petition is closed.