TaxTMI 
TaxTMI 
2025 (8) TMI 1136
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...., for R1 R2 - Insufficient Address And Others COMMON JUDGMENT DR. ANITA SUMANTH., J. This is a batch of 10 writ appeals and one Writ Petition. Nine Writ Appeals have been filed by the State challenging common order dated 28.02.2020 passed in W.P.Nos.39939 of 2005 etc. batch and one Writ Appeal, viz., W.A.No.1019 of 2020 has been filed by the purchaser challenging an order dated 10.02.2020 passed in W.P.No.29090 of 2020. 2. W.P.No.18840 of 2020 has been filed by the purchasers seeking a direction to the first respondent/assessing officer to lift the attachment created on the petitioners' property. 3. In common, the issue relates to a challenge to encumbrances on various properties (in common referred to as 'properties'/'subject properties') owned by the respondents (referred to as purchasers) on the file of the various Sub Registrars within whose jurisdiction the properties are located. The basis of the encumbrance was pending arrears of dues either under the Tamil Nadu General Sales Tax Act, 1959 (in short 'TNGST Act) or Tamil Nadu Value Added Tax Act, 2006 (in short 'TNVAT Act'). 4. The submissions of the Respondents who are the writ petitioners (in short and in ....
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....bject properties. They are admittedly unconnected with the sales tax assessments framed and demands raised. The Department has not brought on record any material to establish collusion between the defaulters and the Respondents, and in fact, there are no allegations/averments/pleadings in this regard. The bonafides of the purchasers/the purchasers has never been questioned by the Department at any point in the proceedings. 9. There are really no disputed facts at play and the only act of commission by the Respondents is that they have purchased the subject properties from the defaulting assessee's for valuable consideration and after exhibiting due caution as is expected from a purchaser. Such a challenge does not, in our view, require the presence of the sales tax defaulters. 10. We draw support in this regard from a judgment of the Supreme Court in The General Manager, South Central Railway, Secunderabad and another v. A.V.R.Siddhantti and others [(1974) 4 SCC 335] in the context of a similar prayer, where the position is made clear that in such cases, the vendor is not a necessary party. It thus follows that unless the department specifically alleges in the pleadings that ....
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....ve been satisfied in the present cases. 16. In summary, he would say that the purchase of the subject properties by the purchasers is tainted and conditional upon the satisfaction of the charge on the property by the Commercial Taxes Department which they would have to satisfy. He relies on the following judgements: 1.Shailesh K. Bothra and Others v. State of Maharashtra and Others [2023 SCC OnLine Bom 1394] 2.S.Sundaram Pillai and Others v. V.R.Pattabiraman and Others [(1985) 1 SCC 591] 3.K.Saradambal v. Jagannathan and Brothers (Automobile Engineers & Motor Works (P.) Ltd.) [1971 SCC OnLine Mad 273] 4.R.Balasubramanian v. Additional Deputy Commercial Tax Officer-III, Office of the Deputy Commercial Tax Officer-III, Thoothukudi [(WA(MD)No.130 of 2005 dated 07.02.2008)] 5.Balkishen Goenka v. Special Assistant Commercial Tax Officer for Sales Tax Collection, Thanjavur [1971 SCC OnLine Mad 430] 6.State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation and Others [(1995) 2 SCC 19] 7.Commissioner of Customs (Preventive) v. Aafloat Textiles India Private Limited and Others [(2009) 11 SCC 18] 8....
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....ottai I, Assessment Circle, Pattukottai [(2013) 62 VST 369 (Mad)] 16.Gupta & Company v. Commercial Tax Officer, Alandur Assessment Circle, Alandur, Chennai and Others [(2019) 67 GSTR 399 (Mad)] 17.Suraj Lamp and Industries Private Limited Through Director v. Stae of Haryana and Another [(2009) 7 SCC 363] 18.Philips India Ltd. and Another v. Asstt. Commr., Commercial Taxes, Calcutta and others [(2004) 10 SCC 436] 19.Oriental Bank of Commerce, Overseas Branch, represented by its Chief Manager, A.Srinivas Sharma, Padma Complex, 467, Mount Road, Chennai-600 035 v. The Commercial Tax Officer, Moore Market (North) Assessment Circle, 191, NSC Bose Road, Chennai-600 001 and others [(WP.21496 of 2008 dated 20.01.2025)] 20.Chogmal Bhandari and others v. Deputy Commercial Tax Officer, II Division, Kurnool [(1976) 3 SCC 749] 21.The General Manager, South Central Railway, Secunderabad and another v. A.V.R.Siddhantti and others [(1974) 4 SCC 335] 18. We have heard both sides keenly and have also perused the material papers, the relevant statutory provisions and the case law. 19. The provisions of both the TNGST as well as TNVAT Acts set....
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....e assets aforesaid does not form part of the stock-in-trade of the business of the dealer.' 22. The TNVAT Act contains provisions in pari materia with Section 24-A of the TNGST Act. Assessments are made under Section 22, Section 42 deals with payment and recovery of tax and penalty and Section 43, in line with Section 24-A of the TNGST Act, states that transfers to defraud the revenue would be void. Section 43 reads as follows: 43. Transfers to defraud revenue void.- Where, during the pendency of any proceedings under this Act or after the completion thereof, any dealer creates, a charge on, or parts with the possession by way of sale, mortgage, gift, 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 dealer as a result of the completion of the said proceeding or otherwise: Provided that, such charge or transfer shall not be void if it is made- (a) for adequate consideration and without notice of the pendency of such proceeding under this Act o....
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....wer must come to a positive conclusion that it is a concession. 'Concession', in our judgment is, thus a foundational, fundamental or jurisdictional fact. A "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 42. In Halsbury's Laws of England, it has been stated; Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception ....
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....upied land' were excluded from the provisions of the statute. This Court held that the question whether the tanks, wells etc., were on 'occupied land' or on 'unoccupied land' was a jurisdictional fact and on ascertainment of that fact, the jurisdiction of the authority would depend. The Court relied upon a decision in White & Collins v. Minister of Health (1939) 2 KB 838 : 108 LJ KB 768, wherein a question debated was whether the court had jurisdiction to review the finding of administrative authority on a question of fact. The relevant Act enabled the local authority to acquire land compulsorily for housing of working classes. But it was expressly provided that no land could be acquired which at the date of compulsory purchase formed part of park, garden or pleasure-ground. An order of compulsory purchase was made which was challenged by the owner contending that the land was a part of park. The Minister directed public inquiry and on the basis of the report submitted, confirmed the order. Interfering with the finding of the Minister and setting aside the order, the Court of Appeal stated; The first and the most important matter to bear in min....
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....er can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. (Emphasis Supplied) From the above decisions, it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact' . A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present. 46. In our opinion, the submission of Mr. Salve is well founded and deserves to be accepted that "concession" under clause (ii) of Sub-section (2) of Section 17 of the Act is a 'jurisdictional fact' . It is only when there is a 'concession' in the matter of rent respecting any accommodation provided by an employer to his employee that the mode, method or manner as ....
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....port the position that a charge by the operation of law cannot be enforced against a purchaser, if he or she had no notice of the same unless the requirement of such notice had been waived by law. 30. In Ahmedabad Municipal Corporation of the City of Ahmedabad V.Haji Abdul Gafur Haji Hussenbhai [(1971) 1 SCC 757], the Supreme Court considered whether a transferee of properties, as against which property tax arrears were sought to be enforced by the Municipal Corporation of Ahmedabad, could be imputed with constructive knowledge of charge created as against those properties. 31. The Court rejected the argument holding that while constructive notice was sufficient to satisfy the notice in the proviso to Section 100 of the TP Act, the position whether the transferee had had constructive notice of the charge had to be determined in the facts and circumstances of each case. Hence, there could be no fixed presumption or assumption that the transferee had had constructive notice unless the facts and circumstances established so. 32. In the present cases, the Revenue has not demonstrated, or even averred for that matter, that notice of the pending arrears had been given to the Res....
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....ate 1. WA.1019/2020 (I.Jeyarajhan v. State) 2009-10 to 2012-13 30.03.2015 27.08.2012 01.09.2015 (01.01.1987 25.08.2015) 2. WA.162/2022 (State v. Sivabagyam) 2003-04 to 2004-05 2003-04 - 19.01.2007 2004-05 - 12.10.2007 05.01.2004 06.05.2009 (Revenue Recovery Proceedings) Form 1 - 16.05.2008 Form 4 - 16.05.2008 3. W.A.1761/2022 (State v. P.Mohan) 1999-2000 30.11.2001 15.07.2004 (Revenue Recovery Proceedings) Form 1 - 05.03.2002 Form 4 - 09.05.2002 Attachment - 22.02.2002 Letter to Registration Office - 09.04.2002 Auction sale conducted on 11.07.2002 to 25.07.2007 4. WA.2903/2021 State v. V.Ramyalakshmi 2003-04 27.07.2005 30.3.2012 29.03.2012 (Revenue Recovery Proceedings) Form 4 - 22.09.2015 5. WA.727/2022 State v. K.Amudha 1993-94 30.03.2000 31.03.2004 21.04.2004 Revenue Recovery Proceedings Form 1 - 10.11.2004 Form 4 - 31.01.2005 Gazette Publication for auction sale - 11.09.2006 6. WA.2912/2021 State v. R.Rajesh 2004-05 15.03.2006 27.11.2006 28.04.2008 Revenue Recovery Proceedings Form 4 - 18.10.2006 7. WA.293/2022 Stat....
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....he date of sale is 31.03.2004 prior to the attachment. In any event, no charge has admittedly been registered with the Sub-Registrar. 43. In W.A.No. 2912 of 2021, Form 4 has been issued on 18.10.2006 and encumbrance has admittedly been created by the sales tax department only on 13.10.2009, as reflected by the encumbrance certificate placed on record. The date of sale is 27.11.2006 even prior thereto. 44. In W.A.No.293 of 2022, the property was mortgaged with the Tamil Industrial Investment Corporation (TIIC) which issued a no-due certificate only on 20.02.2007. The assessee was before the Board of Industrial and Financial Reconstruction and had been de-registered only on 05.04.2007 having been declared sick on 23.09.2003. The property had been sold on 08.09.2007 and the encumbrance certificate dated 21.11.2005 does not reflect any charge having been created by the Commercial Taxes Department. Form 4 has been issued only on 28.01.2009, long after the sale. 45. In W.A.No.2965 of 2021, the order of assessment was passed for the period 2005-06 on 16.05.2008 and for the period 2006-07 on 17.11.2008. The property was purchased by the Respondent on 02.11.2011 and it was only on ....