2023 (8) TMI 466
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....ng and setting aside the two orders dated 17.06.2019 mutating Entry no. 8056 and Entry no. 8057 (Annexure-B1, Annexure-B2) passed by the Ld. City Survey Superintendent, Rajkot in the interest of justice; (D) YOUR LORDSHIPS may be pleased to issue a Writ of Mandamus or Writ in Nature of Mandamus or any other appropriate Writ, order or direction by directing the respondent Authorities to allow the application dtd. 13.03.2019 (Annexure-C) and further mutate the names of the petitioners in the City Survey records for land bearing survey Ward no. 14, City Survey no. 465 and 469 admeasuring 483-39 sq. mtrs including the construction on area admeasuring 34-04 sq. mtrs. Situated at Bhilvaas, Rajkot in the interest of justice; (E) YOUR LORDSHIPS may be pleased to issue a Writ of Mandamus or Writ in Nature of Mandamus or any other appropriate Writ, order or direction by quashing and setting aside the order dtd. 11.06.2019 passed by the State Tax Officer, Circle 5, Unit 94, Office of the Assistant Commissioner of Commercial Tax (Gujarat-State) (Annexure-D) in the interest of justice; (F) Pending admission, hearing and final disposal of the present petition YOUR LORDSHIPS may be pleased ....
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.... any VAT dues and are registered Sale deed owners with possession and the sale deed is not questioned before any civil court. 9.2 The petitioners have purchased the parcels of land from Manish Rasiklal Bavariya who is undisputedly the sole owner of the properties since 04.10.2006. 9.3 The authority is mandated under the Code to mutate names of registered sale deed owners, in this case though not obliged the petitioners have also applied since 13.03.2019 for mutation of their names 9.4 Instead of allowing the application dated 13.03.2019, unheard of and a novel approach is adapted by the respondents in straightaway mutating a hopelessly time barred claim of Eagle Motors Pvt. Ltd. a private limited company by creating Charge on the personal properties, though at the time of registered sale deed no proceedings were initiated on these parcels of land and it was only on 11.06.2019 that for the first time (after registered sale deed and petitioners' application) communication was sent directing the City Survey Superintendent to create charge. 9.5 It is settled legal position that personal properties of Directors of Private limited Company cannot be attached or created charge over for....
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....me instructions that charge has to be created (in future). The rejection is also based on some instruction received from the tax authorities wherein attachment and the proceedings were pending. It is not only shocking to note that such approach is being adopted to prejudice the rights of the petitioner but also surprising to see how all these aspects came to the light only after the application was made by the petitioner. Till that point, the authorities did not bother to take any steps with regard to any of the proceedings as claimed by them. 9.11 That the petitioners purchased the said properties after clearing all the encumbrances and hence, the petitioners being bona-fide purchasers for consideration after due diligence can not be made to suffer on account of the tax dues running in the name of the company of the original owner. Registered sale deed is executed on dated 26.02.2019 for which the petitioners submitted an application dated 13.03.2019 to the authority for entering their names in the revenue records, the order of the Tax Authority ordered charge over the properties on dated 11.06.2019 i.e. after the sale deed was executed. 9.12 It is submitted that entering the ch....
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....In the present case the proceedings have been initiated after more than 5 years from the default on the part of the earlier owners of the properties. Therefore, proceedings initiated after an unexplained and unreasonable delay which is beyond the mandatory period provided under the statute ought not to be permitted and deserve to be quashed and set aside in the interest of justice. 9.16 The law under the Bombay Land Revenue Code, 1879 (Section 135C) is settled that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same. There is no obligation cast on registered sale deed owners to even apply for entering the names in the revenue records and/or City Survey Records as the case may be. 9.17 It is a well settled principle of law that when registered document is produced, the authorities are bound to record the same in the revenue records. As held in Jhaverbhai Savjibhai Patel vs. Kanchanben N. Patel and others reported in 2005 (3) GLR 2233 that when a registered document is produced before a revenue authority, the authority must prima facie post an entry in the record of rights leaving if to the competent....
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....the Bombay Land Revenue Code is legal and valid claim which can be by way of mortgage but to record a charge in the record of rights or city survey records without there being any dues of the legal owner or legal occupier of the immovable property, no 'charge' can be recorded. 9.21 That when an entry is to be mutated under Chapter X-A, it is not a clerical or an administrative function, there has to be application of mind and prima facie proof of recording what is submitted and factually there has to be a basis even from bare perusal of the said document or claim as it may be. 9.22 Section 135D(1)(b)(ii) is a section post section 135D(1)(b)(i) and it states that it is only upon the completion of action as per section 135D(1)(b)(i) that mutation can be made and only thereafter notice of transaction shall be served to the persons interested therein. 9.23 That the Revenue Authority/Officer has committed error of jurisdiction on the face of record in the matter of certification of the entry despite a mandate provided under the provisions of the Bombay Land Revenue Code, 1879 which provides for mutation of revenue entry of a registered document. 9.24 In support of his submissions Mr....
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....22.03.2016 32889659 CENTRAL 25.05.2016 2012-13 30.03.2017 47237067 VAT 13.04.2017 2013-14 13.03.2018 166653913 VAT 31.03.2008 TOTAL 249820110 10.3 No appeal has been preferred by the assessee against these orders and hence they had become final. 10.4 Mr. Trivedi would further submit that the Tax Authority had written a Letter on 02.07.2015 to the City Survey Superintendent seeking details of properties which belong to the Directors of the Company and after an exchange of letters the proceedings could not be carried out as the tax authority could not provide the details of the properties. He would submit that for the company Eagle Auto Pearl Limited the authorities had carried out assessments as under: EAGLE AUTO PEARL PVT. LTD. VAT NO. 24091806339 ASSESSMENT DETAIL YEAR OF ASSESSMENT ASSESSMENT DATE DEMAND NOTICE DATE A/O SERVE DATE 2013-14 30.03.2017 47237067 13.04.2017 2014-15 13.03.2018 166653913 31.03.2008 10.5 The authorities pursuant to such assessment proceedings had carried out attachment proceedings and attached the Bank Account of the Company on 14.05.2018. 10.6 On 27.04.2018 the Tax Authority had also written a let....
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.... Ltd. (undisputedly not of the property purchased by the petitioner). 6 02.07.2015 For the above mentioned assessment, Tax Authority sent a communication to the City Survey Superintendent, Rajkot wherein the tax authority sought the details of the property which belonged to the Directors of the Company being Eagle Motors Pvt.Ltd. Subsequently the tax authority is not in a position to find out the survey number therefor the authority had not carried out the proceedings qua the aforesaid company. 7 2013 to 2015 The authority carried out assessment qua another Eagle Auto Pearl Pvt.Ltd. 8 13.09.2017 26.02.2019 The owner of the property Manishkumar Rasiklal Bavariya executed registered Agreement to Sell (with possession) dtd. 13.09.2017 bearing Registration no. 5344 in favour of the petitioners. Due to some typographical mistake in the Agreement, a registered Rectification Deed was also executed on dt.26.02.2019. 9 27.04.2018 In the letter dt. 27.04.2018, the Tax Authority had written a letter to the City Survey Superintendent 1 as well as 2 wherein also the tax authority sought details of the property belonging to the Directors of Eagle Auto Pearl Pvt.Ltd.&nb....
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....their names) is neither decided nor any further communication has been addressed to the petitioner, nor any further procedure has been initiated. The petitioners also requested for recording Entry of the sale transaction in favour of the petitioners in the revenue records. 20 03.08.2019 The City Survey Superintendent, Rajkot - respondent No. 2 rejected the objections raised by the petitioners against mutation of Revenue Entries no. 8056 and no. 8057. 21 04.08.2020 The petitioners sent a legal notice dtd. 04.08.2020 to the seller describing all the issues and to clear their dues and provide a N.O.C to the petitioners. 11.1 What emerges from such chronology is that the property in question was of the personal ownership of the Director which he had procured by virtue of a Will. It was a bequeathment by the father Rasiklal Bavariya in favour of his son Manish Bavariya and the Letters of Administration too were obtained from the Civil Court. Therefore the property was a solely owned personal property of the Director/Seller. 11.2 The details of assessment proceedings as set out in the reply and which we have reproduced herein above would indicate that they range for years from 20....
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....nue Authorities in exercise of powers under Section 135 C of the Bombay Land Revenue Code to record the entries. There is no obligation, as rightly submitted by the learned counsel for the petitioner, to even apply for entering the names in the revenue records. When a registered document is produced, the authorities are bound to record the same in the revenue records. 11.9 As held in the case of Jhaverbhai Savjibhai Patel (supra) when a registered document is produced the authority must prima-facie post an entry in the record of rights leaving it for the competent Court or Authorities to adjudicate on the dispute. 11.10 Paras 6 to 8 of the decision in the case of Jhaverbhai Savjibhai Patel (supra) read as under: "6. As such the issue involved in this petition is covered by the decision of this Court in case of "Jayantilal Jethalal Soni v. State of Gujarat" dated 28.9.2004 passed in Special Civil Application No. 12547/2004. The relevant observations made by this Court in the aforesaid decision at paragraphs 7, 8, and 9 are as under: "7. It appears that if a registered sale deed is executed by the holder of the land, it confers the right pertaining to the land in question in fa....
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....ed judgement, it appears that it would not be proper to hold that even if there are breaches under other enactment or such transfer is barred under the other enactment, the revenue authorities exercising power under Code could have ignored the same for the purpose of recording the mutation. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code. Therefore, on reconciling of both the aspects, it appears that in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment....
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....e prima facie breach of the other enactment by the transfer in question, the revenue authority exercising power under the Code may refer the matter to the appropriate authority under the other enactment or may relegate the affected party to resort to appropriate proceedings under the other enactment and the entry may be considered subject to the final outcome in the proceedings under the other enactment, as observed hereinabove in earlier paragraphs." 7. The very decision came to be considered by this Court even in the matter, where the validity of the registered sale deed was under challenge by preferring civil suit. This Court by relying upon the earlier decision in case of "Jayantilal Jethalal Soni v. State of Gujarat" (supra), in Special Civil Application No. 14037/2004 dated 24.12.2004 in case of "Hasmukhbhai Kasturchand Shah v. Heirs of Dahiben Wd/o Shanabhai Bhulabhai & Hirabhai" has further made observations at paragraphs 4 and 5 as under: "4. Therefore, so far as the entries which are based on registered sale deed are concerned, the same cannot be cancelled in toto and it deserves to be restored in the revenue record with the clarification that they shall be subject to....
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....September, 1975 and No.2068 dated 20th September, 1975 are restored to the revenue record with the clarification and the qualification that the same shall be subject to the outcome of the Regular Civil Suit No.4180 of 2004 and No.9275 of 2003 pending in the concerned Civil Court and also subject to the outcome of the proceedings of revision pending before the Tribunal in connection with the proceedings under Section 84C of the Tenancy Act. It is further made clear that it would be open to the aggrieved parties to pursue their rights, if any, pertaining to the property/ies in respect of which entry/ies is/are ordered to be restored by resorting to appropriate proceedings in the Civil Court, either in the pending Suit or by substantive suit as may be permissible in law." 8. In my view, the same situation would prevailin view of the aforesaid decision of this Court and as a consequence thereof, the orders passed by the Revenue Authorities for cancelling the entry No. 8569 in toto deserves to be quashed and set aside with the direction that the entry No.8569 shall continue to remain in revenue record with the qualification and clarification that the same shall be subject to the outco....
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.... SCC 658, wherein the court, in the context of section 281 of the Income Tax Act, 1961, which is in pari materia with section 47 of the GVAT Act, held thus:- "7. The question which is now required to be answered is whether in a proceeding under Rule 11 of the Second Schedule to the Income-tax Act, the Tax Recovery Officer can declare a transfer as void under Section 281. Section 281, as it stood at the relevant time provided as follows:- "Section 281: Where, during the pendency of any proceeding under this Act, any assessee creates a charge on or parts with the possession by way of sale, mortgage, exchange or any other mode of transfer whatsoever, of any of his assets in favour of any other person with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding; Provided that such charge or transfer shall not be void if made for valuable consideration and without notice of the pendency of the proceeding under this Act." 8. Section 281 declares as void any transfer made by the assessee during the pendency of proceedings under....
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....essee is transferred by him to a third party with the intention to defraud the Revenue, it will have to file a suit under Rule 11(6) to have the transfer declared void under Section 281." "13. In the present case the Tax Recovery Officer could not have examined whether the transfer was void under Section 281 of the Income-tax Act. His adjudication of the transfer as void under Section 281 is without jurisdiction. The Tax Recovery Officer has relied upon the earlier order of the Income Tax Officer dated 9.5.1974 declaring that the transaction is void under Section 281 of the Income-tax Act. In the earlier proceedings, however, although the High Court has not set aside this order of the Income Tax Officer, the High Court has expressly held that the order amounted only to an intention of declaration on the part of the Department to treat the transaction as void under Section 281. Such a declaration cannot affect the legal rights of the parties affected under Rule 11. The High Court expressly held that the rights of the parties under Rule 11 were not affected in any way by this declaration. The Department, therefore, cannot proceed on the assumption that the transaction is void under....
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....de with an intention to defraud the Government. It is in the light of the above factual and legal position that the impugned order of attachment dated 9.9.2011, made by the second respondent cannot be sustained. However, the right of the department to have the transfer declared as void under section 47 of the GVAT Act is not thereby taken away. If at all the respondents seek such a declaration, it is always open for them to approach the civil court by instituting appropriate proceedings." 11.14 As held by this Court even if the case of the department is that the transfer is with the intention of defrauding the Government Revenue the only remedy for the Government is to file a Civil Suit. 11.15 That brings us to the question whether at all the personal properties of a Director of a Private Limited Company can be attached or a charge be created under the provisions of the GVAT, 2003. 11.16 Mr. Desai Learned Senior Advocate, in support of his submission that the personal properties of the Director cannot be attached or a charge be created, has relied on several decisions of this Court. 11.17 In the case of Nipun A Bhagat (supra) a Division Bench of this Court in context of the sub....
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.... earliest. We clarify that this order shall not preclude the department from recovering the dues of Dolphin Metals (India) Ltd. by any other mode of recovery permissible in law." 11.18 Be it noted that the Division Bench of this Court has relied on the decisions of this Court in the case of Different Solutions (supra) and Paras Shantilal (supra). 11.19 In the case of Manharlal Viradiya (supra) the Court held as under: "8. Having heard the learned advocates for the respective parties and considering the material on record, it appears that it is not the case of the State that the property in question at any point of time belonged to the company nor is it the case that. The only question that arises for determination in this petition under Article 226 of the Constitution of India is whether for the purpose of recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act against Gujarat against a private limited company, the personal property belonging to the Managing Director of such company can be attached. 8.1. The Co-ordinate Bench while considering the similar issue, relying upon the decision of Division Bench of this Court rendered in Special Ci....
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....e submission made by the learned advocate for the petitioner. In the result, present petition is allowed. The impugned order passed by the respondent No. 1 dated 17.05.2019 and the impugned action of the respondent No. 3 dated 21.05.2019 are hereby quashed and set aside. Present petition stands disposed of accordingly. In the facts and circumstances of the case, there shall be no order as to costs." 11.20 Reading the judgement it is very obvious that the personal liability of the Director in the facts of this case when related to the personal property of the Director cannot be a matter of attachment or creation of a charge as is sought to be done in the facts of the present case. 11.21 In the case of C.V. Cherian (supra) the Court in Paras 1 to 4 held as under: "1. The only question that arises for determination in this writ-application under Article 226 of the Constitution of India is whether for the purpose of recovery of sales tax dues under The Gujarat Value Added Tax Act and Gujarat Sales Tax Act against a private limited company, the personal property belonging to the Managing Director of such company can be attached and sold for realisation of the dues against the compan....
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....e basis of which the attachment was made, was passed on 31.3.2011; however, such order came to be set aside in appeal and the matter was remanded to the adjudicating authority and that the order in respect of the said year as well as subsequent years were all made long after the subject property came to be transferred to the petitioners. It was contended that in the absence of any charge having been registered over the property, the petitioner had no means of knowing about the dues and that the petitioners are bona fide purchasers for consideration. 7.1 It was submitted that in any case, the dues of the erstwhile owners have arisen after the subject property was purchased by the petitioners and hence, it is not permissible for the respondents to attach the subject property and create any charge over it. It was pointed out that the respondents have placed reliance upon section 47 of the GVAT Act to contend that the transfer is a fraudulent transfer, to submit that if that be so, the respondents are required to approach the civil court to get the transfer set aside, if the transfer is void. However, they cannot seek to recover the dues of the erstwhile owner of the subject property....
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....t revenue and hence, the transaction between Varun Filaments Private Limited and the petitioners is void as the transaction is with a view to defraud the Government exchequer. 8.2 The attention of the court was invited to the provisions of section 47 of the GVAT Act, to submit that in view thereof, the transaction between Varun Filaments Private Limited and the petitioners can be termed as a void transfer as the same was made with a specific intention at the end of Varun Filaments Private Limited to defraud the Government. It was, accordingly, urged that there being no infirmity in the action taken by the respondent authority, there is no warrant for interference by this court and that the petition being devoid of merits, deserves to be dismissed." 11.23 Since the case of Choksi (supra) appears to be the leading judgement which has been followed in the subsequent decisions apt it should be to consider the relevant paras of the said decision which read as under: "10. Before dealing with the rival submissions, we would like to point out that in neither of the two petitions i.e. Special Civil Application No. 243 of 1991 and 7578 of 1991, the authorities have passed any specific o....
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....liability is fastened on the Directors who were in charge of and were responsible for the conduct of the business of the Company, but does not at all provide for any personal liability of the Directors to pay the sales-tax dues of the Company nor does it empower the authorities to proceed against the personal properties of the Directors. The very fact that the same Legislature has in the same Act provided for criminal liability of the Directors without providing for any personal liability of the Directors or their personal properties for payment of sales-tax dues of the Company in question, the provisions of Section 78 lend support to the case of the petitioners rather than the case of the authorities. 13. As regards the faint plea of lifting the corporate veil, as per the settled legal position, the corporate veil is not to be lifted lightly. It is only when there is strong factual foundation for lifting the corporate veil that the question of examining the applicability of the principle of lifting such veil would be required to be examined. In neither of the two petitions raising the controversy, the authorities have passed any specific order fastening the liability on the Dire....
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....ffence was committed was incharge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence. In essence, this provision makes the person in-charge of the company responsible for the offence vicariously liable for the criminal action, for which, the company may have been charged. However, when it comes to recovering the dues from the company towards liability incurred under the Act, the Department cannot proceed against the individual Director of the Company. It is not in dispute that the bank account is the personal account of the Director. 4. In view of the aforesaid, this writ-application succeeds and is hereby allowed. The attachment so far as the Current Account bearing No. 0372102000022385 maintained with IDBI Bank, Durga Das Nagar, Pali, Rajasthan stands hereby lifted." 11.26 Paras 8 to 10 Nehal A Shah (supra) read as under: "8 Mr. Sharma, the learned A.G.P. appearing for the State, with his usual fairness, submits that the issue is no longer res integra in view of two orders passed by this Court in the case of : (i) Paras Shantilal Savla vs. State of Gujarat [Special Civil ....
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....r the sales-tax dues of their respective Companies, we have heard Mr Hasurkar and Mr YS Mankad learned counsel for the petitioners and also heard Mr Gori, learned AGP for the respondent-authorities. 5. At the relevant time, sub-section(4A) of Section 47 of the Act as under:- "(4-A) If a dealer does not pay any amount of tax within the time prescribed for its payment under subsection (1), (2) or (3) or on or before the date specified in a notice issued under sub-section (4) in respect of the amount of tax falling under sub-clause (ii) of clause (a) thereof, there shall be paid by such dealer for the period commencing on the date of expiry of the aforesaid prescribed time or the specified date and ending on the date of payment of the amount of tax, simple interest at the rate of twenty four per cent per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period; Provided that where a penalty is levied under subsection (6) of section 45 in respect of the difference and the period referred to in that subsection, no interest shall be payable under this subsection on such difference for such period." However, by Amendment Act No. Guj.20....
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....ion 47(4-A) is in reality and substance not a provision for imposition of levy of penalty and, therefore, it was not necessary for the Legislature to lay down guidelines and to provide for an inquiry. Provision for payment of interest being a method of collecting or recovering revenue, it is for the State to decide what is most efficacious for this purpose, and the defaulter has no moral right to make any grievance in this behalf. If the rate of interest fixed for non-payment of tax within time is not unreasonably high, then it cannot be said to be arbitrary or unreasonable." The Court also considered the contention that the State which had to refund the amount of excess tax paid either voluntarily by the dealer or as a result of an assessment order had to pay lower rate of interest under Section 54 of the Act. The Court negatived the contention about discriminatory treatment and held that the dues of the Government of a State being the dues of the entire people of the State, there is a valid basis for differentiation between dues of the Government of a State and dues of an individual. Whereas the State Government utilises its funds for public welfare, an individual ordinarily us....
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.... alternative, Mr Gori has submitted that even if the Company and its Directors are separate legal entities, it is open to the authorities to lift the corporate veil and to proceed against the personal properties of the Company. 10. Before dealing with the rival submissions, we would like to point out that in neither of the two petitions i.e. Special Civil Application No. 243 of 1991 and 7578 of 1991, the authorities have passed any specific order fastening the liability on the Directors for payment of sales tax dues of the respective Companies. For instance, in the letter dated 31.8.1989, the Assistant Sales tax Commissioner (Appeals) Baroda has informed the concerned Salestax Officer at Godhra that the appeal filed by Choksi Plastics Pvt. Ltd. was being dismissed on account of noncompliance with the order for deposit of the sales-tax dues of the said Company, but it appeared that the financial position of the Directors of the said Company was good and it was possible to recover the dues from the said Directors. Hence, appropriate action may be taken for recovery of sales-tax dues of the said Company in accordance with law. It appears that it is on the basis of the aforesaid comm....
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.... the corporate veil, as per the settled legal position, the corporate veil is not to be lifted lightly. It is only when there is strong factual foundation for lifting the corporate veil that the question of examining the applicability of the principle of lifting such veil would be required to be examined. In neither of the two petitions raising the controversy, the authorities have passed any specific order fastening the liability on the Directors personally, much less any factual foundation has been laid to invoke the doctrine of lifting the corporate veil. Hence it is not necessary to dilate on the said principle any further. 14. In view of the above discussion, Special Civil Application No. 3103 of 1991 is rejected since the constitutional validity of sub-section (4A) of Section 47 of the Gujarat Sales-tax Act, 1969 is already upheld in the case of Ashapura Mineral Company vs. State of Gujarat & Ors., (1993) 89 STC 289. Rule is discharged. Similar prayer made in Special Civil Application No.243 of 1991 is also rejected. 15. However, Special Civil Application No. 243 of 1991 and 7578 of 1991 are allowed to the extent that the respondents are restrained from proceeding against....