Allowed

Green Berry Foils India Limited v. State of Gujarat

Gujarat HC17 Oct 2019SCA/15644/2018

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging notices and orders issued under the GVAT Act to recover tax arrears of a defaulted dealer from a bona fide auction purchaser. The court held that the purchaser, who bought the property before the tax liability arose, held no monies for the dealer, making the Section 44 invocation legally unsustainable.

What did the court decide?

The impugned notice dated 18.7.2018 and the order dated 26.9.2018 under Section 44 of the GVAT Act were quashed and set aside.

Green Berry Foils India Limited Vs State of Gujarat — GST and Indirect Tax | Gujarat HC (2019)

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C/SCA/15644/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 15644 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS.JUSTICE HARSHA DEVANI

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and

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HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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==========================================================

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?	Yes
2 To be referred to the Reporter or not ?	No
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No
====================================================== GREEN BERRY FOILS INDIA LIMITED	====

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Versus

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STATE OF GUJARAT

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========================================================== Appearance:

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MR SHAKTI S JADEJA(5491) for the Petitioner(s) No. 1,2 GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 MR DHAVAL SHAH(2354) for the Respondent(s) No. 3 MR RA MISHRA(481) for the Respondent(s) No. 2

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==========================================================

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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and

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HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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Date : 17/10/2019

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ORAL JUDGMENT

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(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

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Page 1 of 20

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C/SCA/15644/2018 JUDGMENT

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1.By this petition under article 226 of the
Constitution of India, the petitioner has
challenged the order dated 26.9.2018 issued by
the first respondent directing the banker of the
petitionertodepositanamountof
Rs.17,67,45,934/- along with interest at the rate
of 18% per annum in the Government treasury
within seven days of receipt of the said order as
well as the notice dated 18.7.2018 issued by the
first respondent whereby the petitioner company
has been directed to pay an amount of
Rs.17,67,45,934/- being the outstanding tax
arrears of the third respondent for assessment
years 2012-13 and 2013-14.

¶23

2.The facts stated briefly are that the third
respondent - Messrs J & P Foils Limited,
defaulted in repayment of credit facilities to
the second respondent - Oriental Bank of
Commerce. Consequently, its loan account with the
second respondent was classified as a non-
performing asset. The second respondent
therefore, initiated proceedings under the
Securitisation and Reconstruction of Financial
Assets and Enforcement of Securities Interest
Act, 2002 (hereinafter referred to as 'the
Securitisation Act') by issuing a demand notice
under section 13(2) of the said Act for an amount
of Rs.78,02,01,920.47 to the third respondent and
other guarantors. Thereafter, on 29.7.2015 the
second respondent took over the possession of the

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Page 2 of 20

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C/SCA/15644/2018 JUDGMENT

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property being factory land and building, plant
and machineries situated at Plot No.6, GIDC
Industrial Area, Valia, Ankleshwar, District
Bharuch admeasuring 1,02,803 square metres
(hereinafter referred to as 'the subject
property') under the provisions of sub-section
(4) of section 13 of the Securitisation Act and
issued sale notice dated 17.11.2015 with a
reserve price of Rs.52.76 crores. It appears that
the first sale failed for want of bidders and
hence, a second auction was fixed on 17.2.2016.
However, the second sale also failed for want of
bidders. Thereafter, on 21.11.2016 the second
respondent bank issued an E-auction sale notice
and put the subject property on public auction
whereby the auction was fixed on 23.12.2016 with
a reserve price of Rs.40.18 crores.

¶27

2.1The petitioner participated in the E-
auction held on 23.12.2016. The second respondent
acceptedthatpetitioner'sbidof
Rs.40,19,50,000/- which was the highest bid and
declared the petitioner-company as the highest
bidder. In compliance with the auction terms, the
petitioner deposited the entire purchase
consideration with the second respondent within
the time granted to it and upon receipt of the
entire sale consideration, the second respondent
confirmed the sale in favour of the petitioner
and issued a sale certificate dated 20.3.2017.

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Page 3 of 20

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C/SCA/15644/2018 JUDGMENT

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2.2The second respondent bank also handed
over the actual physical possession of the
subject property to the petitioner on 21.3.2017
and since then the subject property is occupied
by the petitioner as lawful owner of the property
having purchased the same for valuable
consideration.

¶31

2.3Thereafter, on 18.7.2018 the first
respondent - Assistant Commissioner, Sales Tax,
Bharuch, issued the impugned notice calling upon
the petitioner to pay an amount of
Rs.17,67,45,934/- being the outstanding tax
arrears of the third respondent for the
assessment years 2012-2013 and 2013-2014.

¶32

2.4By letters dated 24.8.2017, 11.7.2018
and 14.9.2018, the petitioner clarified to the
first respondent that the petitioner had
purchased the subject property in a public
auction from a nationalized bank and cannot be
saddled with the liability of the third
respondent. It is the case of the petitioner that
thereafter, instead of initiating recovery
measures against the third respondent who is
liable to pay the dues of the first respondent,
the first respondent initiated recovery
proceedings against the petitioner and issued the
impugned notice dated 26.9.2018 to the banker of
the petitioner under section 44 of the Gujarat
Value Added Tax Act, 2003 (hereinafter referred

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Page 4 of 20

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C/SCA/15644/2018 JUDGMENT

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to as 'the GVAT Act')calling upon the bank to
deposit Rs.17,67,45,934/- with interest at the
rate of 18% per annum in the Government Treasury.
Being aggrieved, the petitioner has approached
this court seeking the reliefs noted herein
above.

¶36

3.Vide order dated 10.10.2018, notice came
to be issued in the matter and by way of interim
relief, the impugned communications dated
26.9.2018 and 18.7.2018 were stayed.

¶37

4.Mr. S. N. Soparkar, Senior Advocate,
learned counsel with Mr. Shakti Jadeja, learned
advocate for the petitioner, submitted that the
whole proceeding for recovering the tax dues of
the third respondent from the petitioner is bad
in law inasmuch as no amount was due and payable
by the petitioner to the third respondent. It was
submitted that the petitioner was as a bona fide
purchaser of the subject property for
consideration in an auction held under the
provisions of the Securitisation Act. At the time
when the subject property was purchased, there
was no charge of the first respondent over the
property in question and that the property in
question had been purchased by the petitioner
without there being any encumbrance thereon. It
was submitted that insofar as the notice issued
to the banker of the petitioner under section 44
of the GVAT Act is concerned, the same is in the

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Page 5 of 20

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C/SCA/15644/2018 JUDGMENT

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nature of a garnishee notice. It was submitted
that section 44 of the GVAT Act provides for a
special mode of recovery for the amount of monies
due from a dealer and that the petitioner is
neither a dealer within the meaning of such
expression as defined under section 2(10) of the
GVAT Act, nor does he hold any amount of monies
due to the dealer, namely the third respondent
herein, and hence, the invocation of the
provisions of section 44 of the GVAT Act against
the petitioner is without authority of law. It
was, accordingly, urged that the impugned action
of the first respondent being arbitrary and
illegal cannot be sustained and that the impugned
orders/notices are required to be quashed and set
aside.

¶41

5. On the other hand Ms. Maithili Mehta,
learned Assistant Government Pleader, invited the
attention of this court to the provisions of
section 48 of the GVAT Act, to submit that the
same provides that any amount payable by the
dealer or any person on account of tax shall be a
first charge on the property of the dealer. It
was pointed out that section 44 opens with a non
obstante clause and says that notwithstanding
anything to the contrary contained in any law for
the time being in force, any amount payable by
the dealer or any person on account of tax,
interest or penalty for which he is liable to pay
to the Government shall be a first charge on the

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Page 6 of 20

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C/SCA/15644/2018 JUDGMENT

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property of the dealer or as the case may be,
such person. It was submitted that therefore, the
first respondent had a first charge on the
property of third respondent and hence, the
action of the first respondent is wholly
justified.

¶45

5.1Reference was made to the averments made in
the affidavit-in-reply filed on behalf of the
respondent wherein it has been stated that an
assessment order had been passed in respect of
the third respondent for assessment year 2012-
2013 on 24.3.2017 for an amount of
Rs.2,07,17,320/-; for the assessment year 2013-
2014, an assessment order came to be passed on
24.3.2018 for an amount of Rs.15,60,28,614/-; and
for the assessment year 2014-2015, an assessment
order had been passed on 28.03.2019 for an amount
of Rs.5,11,49,005/-; and that such assessment
orders have been passed under section 34 of the
GVAT Act. It was submitted that the contention of
the petitioner that it being an auction purchaser
the dues of the third respondent could not have
been recovered from it do not stand good in view
of the fact that E-auction public notice
specifically mentioned that the property in
question shall be sold on “as is where is and
whatever is basis”. It was submitted that
therefore, the respondent authorities were wholly
justified in invoking the provisions of section
44 of the Gujarat Value Added Tax Act, 2003 and

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Page 7 of 20

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C/SCA/15644/2018 JUDGMENT

¶48

that the petition being devoid of merits deserves
to be dismissed.

¶49

6.From the facts as emerging from the
record, it can be seen that by the impugned
notice dated 18.7.2018, which does not refer to
any provision of law, the petitioner was informed
that it is liable to pay the outstanding as well
as future dues of the third respondent as the
subject property had been purchased on as is
where is and whatever is basis, and was called
upon to pay an amount of Rs.17,67,45,934/-
towards the assessments for assessment years
2012-2013 and 2013-2014 within a period of seven
days from the date of receipt of the
communication.

¶50

7.In response to the above notice, the
petitioner addressed a reply dated 20.8.2018 to
the State Tax Officer disputing its liability to
pay any such amount. The petitioner has
thereafter addressed other communications on
24.8.2018 and on 14.9.2018. However, by the
impugned order dated 26.9.2018, the second
respondent bank was directed to pay a sum of
Rs.17,67,45,934/- together with interest at the
rate of 18% per annum as it was holding such
amount on behalf of the petitioner.

¶51

The first question that arises in the above backdrop is whether the petitioner is liable to

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Page 8 of 20

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C/SCA/15644/2018 JUDGMENT

¶54

discharge the tax dues of the third respondent on
account of having purchased the subject property
which belonged to the third respondent, in the
auction sale held by the second respondent bank.

¶55

9.In this case the assessment orders in the
case of the third respondent have been made on
24.3.2017 for assessment year 2012-2013; on
24.3.2018 for assessment year 2013-2014 and on
28.3.2019 for assessment year 2014-2015. The
notice of the auction sale pursuant to which the
petitioner purchased the subject property was
issued on 21.11.2016, which is prior to the
passing of any of the above assessment orders. In
the public notice it has been mentioned that the
e-Auction is being held on “As is where is” and
“as is whatever is (symbolic possession)” basis.
The notice further says that to the best
knowledge of the authorised officer there are no
encumbrances on the property. According to the
first respondent, since the property is purchased
on “as is where is and whatever is” basis, the
petitioner is liable to pay the tax dues of the
third respondent. In this regard strong reliance
has been placed on the provisions of section 48
of the GVAT Act.

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10.Section 48 of the GVAT Act reads as under: -

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“48.Tax to be first charge on property.-
Notwithstanding anything to the contrary

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Page 9 of 20

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C/SCA/15644/2018 JUDGMENT

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contained in any law for the time being in
force, any amount payable by a dealer or any
other person on account of tax, interest or
penalty for which he is liable to pay to the
Government shall be a first charge on the
property of such dealer, or as the case may
be, such person.”

¶61

Under section 48 of the GVAT Act, the Government has a first charge on the property of a dealer who is liable to pay any amount on account of tax to the Government. The first charge is on the property of the dealer, and hence, as a necessary corollary it follows that as on the date when the liability arises, the property should belong to the dealer who is liable to pay such tax and other dues. In the present case, the second respondent bank took possession of the subject property on 19.7.2015; the first sale notice was issued on 17.11.2015, the second sale notice was issued on 17.2.2016 and the third and present sale notice was issued on 21.11.2016. The sale certificate was issued on 20.3.2017, whereupon the subject property ceased to belong to the third respondent. The notice of sale pursuant to which the petitioner purchased the subject property was issued prior to the assessment orders being passed against the third respondent; therefore, as on the date when the sale notice was issued, there was no charge over the subject property. When the petitioner

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Page 10 of 20

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C/SCA/15644/2018 JUDGMENT

¶64

purchased the subject property on “as is where is
basis”, it purchased the property with all the
advantages and disadvantages associated with the
said property as existing on the date when the
sale notice was issued. As noted hereinabove, on
the date when the sale notice was issued, the
assessment orders in the case of the third
respondent, on the basis of which recovery is
sought to be made from the petitioner, were not
even passed. Therefore, the petitioner had
purchased such property without any encumbrance.

¶65

12.Under section 48 of the GVAT Act, any amount
payable by a dealer shall be a first charge on
the property of such dealer or any other person
on account of tax, interest or penalty for which
he is liable to pay to the Government. Thus,
under section 48 of the GVAT Act, a dealer or any
other person has to be liable to pay any amount
of tax, interest or penalty to the Government, in
which case there would be first charge on his
property. In the present case, it is the third
respondent who is the dealer who is liable to pay
outstanding dues under the GVAT Act to the
Government. Therefore, there can be a first
charge of the Government over the property of the
third respondent. However, on the date when the
dues arose, the subject property ceased to belong
to the third respondent and hence, the question
of any charge over the subject property does not
arise.

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Page 11 of 20

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C/SCA/15644/2018 JUDGMENT

¶68

13.Since the impugned notice has purportedly
been issued under section 44 of the GVAT Act, it
may be germane to refer to the said section,
which reads as under: -

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“44. (1) Notwithstanding anything contained
in any law or contract to the contrary, the
Commissioner may at any time or from time to
time , by notice in writing, a copy of which
shall be forwarded to the dealer at his last
known address, require, —

¶70

(a) any person from whom any amount of monies
is due, or may become due, to a dealer on
whom notice has been served under sub-section
(1), or

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(b) any person who holds or may subsequently
hold monies for or on account of such dealer,
to pay the Commissioner, either forthwith
upon the monies becoming due or being held or
within the time specified in the notice (but
not before the monies becomes due or is held
as aforesaid) so much of the monies as is
sufficient to pay the amount due by the
dealer in respect of the arrears of tax,
penalty or interest under this Act, or the
whole of the money when it is equal to or
less than that amount.

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Explanation.- For the purposes of this sub-
section, the amount of monies due to a dealer
from, or monies held for or on account of a
dealer by any person, shall be calculated by
the Commissioner after deducting there from
such claims, if any, lawfully subsisting, as
may have fallen due for payment by such
dealer to such person.

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(2) The Commissioner may amend or revoke any
such notice or extended the time for making
any payment in pursuance of the notice.

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(3) Any person making any payment in

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C/SCA/15644/2018 JUDGMENT

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compliance with a notice under this section
shall be deemed to have made the payment
under the authority of the dealer, and the
receipt thereof by the Commissioner shall
continue a good and sufficient discharge of
the liability of such person to the extent of
the amount specified in the receipt.

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(4) Any person discharging any liability to
the dealer after receipt of the notice
referred to in this section, shall be
personally liable to the Commissioner to the
extent of the liability discharged or to the
extent of the liability of the dealer for
tax, penalty and interest, whichever is less.

¶79

(5) Where a person to whom a notice under
this section is sent objects to it by a
statement in writing that the sum demanded or
any part thereof is not due or payable to the
dealer or that he does not hold any monies
for or account of the dealer, the
Commissioner shall hold an inquiry and after
giving to such person or dealer a reasonable
opportunity of being heard, make such order
as he thinks fit.

¶80

(6) Any amount of monies which the aforesaid
person is required to pay to the
Commissioner, or for which he is personally
liable to the Commissioner under this section
shall, if it remains unpaid, be recoverable
as an arrears of land revenue.

¶81

(7)The Commissioner may apply to the court
in whose custody there is monies belonging to
the dealer for payment of the amount of such
monies towards the outstanding amount of tax,
interest and penalty payable by the dealer.”

¶82

Insofar as the impugned notice dated 18.7.2018 issued by the first respondent to the petitioner is concerned, the said notice has been

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Page 13 of 20

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C/SCA/15644/2018 JUDGMENT

¶85

issued under section 44 of the GVAT Act on the
ground that the petitioner is holding an amount
of Rs.17,67,45,934/- with interest at the rate of
18% per annum on behalf of the third respondent.
The question that therefore, arises for
consideration is whether the petitioner was
holding any amount or was subsequently going to
hold any monies on behalf of the third respondent
on the date when the impugned order came to be
passed.

¶86

At this juncture reference may be made to the decision of the Supreme Court in Hyderabad Coop. Commercial Corpn. Ltd. v. Syed Mohiuddin Khadir , (1975) 2 SCC 624 , wherein the court held thus:

¶87

Attachment of debts is a process by means of which a judgment-creditor is enabled to reach money due to the judgment-debtor which is in the hands of a third person. These are garnishee proceedings. To be capable of attachment, there must be in existence at the date when the attachment becomes operative something which the law recognises as a debt. So long as there is a debt in existence, it is not necessary that it should be immediately payable. Where any existing debt is payable by future instalments, the garnishee order may be made to become operative as and when each instalment becomes due. The debt must be one

¶88

Page 14 of 20

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C/SCA/15644/2018 JUDGMENT

¶90

which the judgment-debtor could himself enforce for his own benefit. A debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation (see Webb v. Stenton, (1883) 11 QBD 518).

¶91

Thus, on the date when the impugned notice dated 18.7.2018 came to be issued directing the petitioner to pay a sum of Rs.17,67,45,934/- with interest at the rate of 18% per annum, being the outstanding tax arrears of the third respondent, the petitioner should have been a debtor of the third respondent, namely that a sum of money should have been payable or would become payable by the petitioner in future to the third respondent by reason of an existing obligation. In the present case, it is not the case of the first respondent that the petitioner is a debtor of the third respondent. The first respondent seeks to recover the above amount from the petitioner as it has purchased the properties belonging to the third respondent in an auction sale held by the second respondent bank on “as is where is and whatever is basis”. As noticed earlier, on the date when the sale notice was issued, the assessment orders in the case of the third respondent, on the basis of which recovery is sought to be made from the petitioner, were not even passed. Therefore, the petitioner had purchased such property without any encumbrance.

¶92

Page 15 of 20

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C/SCA/15644/2018 JUDGMENT

¶94

The petitioner being a bona fide purchaser who
has purchased the subject property in sale
proceedings under the Securitisation Act prior to
any charge having been created in favour of the
first respondent has no liability to discharge
the debts of the third respondent. Therefore, it
cannot be said that the petitioner was holding
any amount on behalf of the third respondent on
account of having purchased the subject property
in the auction sale held by the second respondent
under the provisions of the Securitisation Act.
Since the petitioner herein does not owe any
amount to the third respondent and does not hold
any monies on account of the third respondent,
the provisions of section 44 of the GVAT could
not have been invoked against the petitioner.
Under the circumstances, the State Tax Officer
was not justified in issuing the impugned notice
dated 18.7.2018 to the petitioner under section
44 of the GVAT Act.

¶95

As regards the impugned order dated 26.9.2018 issued by the State Tax Officer under section 44 of the GVAT Act to the second respondent bank directing it to deposit a sum of Rs.17,67,45,934/- plus interest at the rate of 18% per annum, reference may be made to subsection (5) of section 44 of the GVAT Act, which provides that where a person to whom a notice under that section is sent objects to it by a statement in writing that the sum demanded or any

¶96

Page 16 of 20

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C/SCA/15644/2018 JUDGMENT

¶98

part thereof is not due or payable to the dealer
or that he does not hold any monies for or on
account of the dealer, the Commissioner shall
hold an inquiry and after giving to such person
or dealer a reasonable opportunity of being
heard, make such order as he thinks fit. Thus,
when the petitioner had objected to the demand
raised against it, it was incumbent upon the
Commissioner to hold an inquiry as contemplated
under sub-section (5) of section 44 of the GVAT
Act and pass an order after giving the petitioner
a reasonable opportunity of hearing. However,
without following the mandate of sub-section (5)
of section 44 of the GVAT Act, the impugned order
dated 26.9.2018 came to be made by the State Tax
Officer (5), Unit-55 Bharuch under section 44 of
the GVAT Act addressed to the Manager Union Bank
ofIndiadirectinghimtodeposit
Rs.17,67,45,934/- plus interest at the rate of
eighteen percent per annum in the Government
Treasury as it was holding such amount on behalf
of the petitioner.

¶99

On a plain reading of the provisions of section 44 of the GVAT Act, it is clear that the same are in the nature of garnishee proceedings and can be invoked against any person from whom any amount is due, or may become due, to a dealer. Such dealer should be a person to whom notice has been served under sub-section (1) of section 44 of the GVAT Act. The third respondent

¶100

Page 17 of 20

¶101

C/SCA/15644/2018 JUDGMENT

¶102

in the affidavit-in-reply filed by it has not
made reference to any such notice having been
issued to it nor has any averment to that effect
been made in the affidavit-in-reply filed on
behalf of the first respondent. Therefore, the
basic requirement for invoking the provisions of
section 44 of the GVAT Act, viz. service of
notice to the dealer under sub-section (1)
thereof, has not been satisfied.

¶103

Another aspect of the matter is that a condition precedent for issuing notice under section 44 of the GVAT Act to the second respondent bank is that the said bank should be holding or may subsequently hold monies on account of such dealer. The expression “dealer” has been defined under section 2(10) of the GVAT Act to mean any person who, for the purpose of or consequential to his engagement in or, in connection with or incidental to or in the course of business buys, sells, manufactures, makes supplies or distributes goods directly or otherwise, whether for cash or deferred payment, or for commission, remuneration or otherwise and includes the categories of persons enumerated thereunder. In the present case, it is not the case of the first respondent that the bank was holding any monies on account of the dealer, viz. the third respondent herein. Therefore, the impugned order dated 26.9.2018 directing the second respondent bank to deposit a sum of

¶104

Page 18 of 20

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C/SCA/15644/2018 JUDGMENT

¶106

Rs.17,67,45,934/- along with interest at the rate
of 18% per annum, does not meet with the
requirements of section 44 of the GVAT Act.

¶107

20.Since the petitioner is not a dealer and is
not liable to pay any tax, interest or penalty to
the Government, the action of the respondents in
invoking section 44 of the GVAT Act and attaching
the bank account of the petitioner is thoroughly
misconceived and without any basis whatsoever.
The impugned order dated 26.9.2018 made by the
State Tax Officer (5), Unit-55 Bharuch under
section 44 of the GVAT Act addressed to the
Manager Union Bank of India directing him to
deposit Rs.17,67,45,934/- plus interest at the
rate of 18% per annum in the Government Treasury
as it was holding such amount on behalf of the
petitioner is an example of the highhandedness of
the officers discharging duties under the GVAT
Act, in seeking to recover such a huge amount
from a person without any liability on his part
to pay any amount to the Government, that too, in
clear contravention of the statutory provisions.
Such action of the first respondent is required
to be deprecated in the strictest terms and
cannot be countenanced even for a moment.

¶108

The upshot of the above discussion is that neither the impugned notice dated 18.7.2018 issued to the petitioner nor the impugned order dated 26.9.2018 issued to the second respondent

¶109

Page 19 of 20

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C/SCA/15644/2018 JUDGMENT

¶111

bank by the State Tax Officer is sustainable in
law. The petition, therefore, succeeds and is
accordingly allowed. The impugned notice dated
18.7.2018 as well as the impugned order dated
26.9.2018 (Annexure-A collectively to the
petition) are hereby quashed and set aside. Rule
is made absolute accordingly, with costs.

¶112

22.Direct service, is permitted.

¶113

(HARSHA DEVANI, J)

¶114

(SANGEETA K. VISHEN,J)

¶115

RAVI P. PATEL

¶116

Page 20 of 20

Green Berry Foils India Limited v. State of Gujarat

Case brief

What is this about?

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Green Berry Foils India Limited v. State of Gujarat

Case brief

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