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Vijay Kumar Ginodiya v. Trade Tax Officer & Others - WRIT TAX No. - 1360 of 2003 [2007] RD-AH 15053 (5 September 2007)

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Court No. 2

Civil Misc. Writ Petition No. 1360 of 2003

Vijay Kumar Ginodiya and another .... Petitioners


Trade Tax Officer, Sector- I and

others .....Respondents

Hon'ble Prakash Krishna, J.

Hon'ble Bharati Sapru, J.

By means of the present writ petition the petitioners have sought quashing of the order dated 24-8-1999 (Annexure-8) passed by the Trade Tax Officer, Sector-I, Varanasi whereby the Trade Tax Officer, Varanasi has adjusted a sum of Rs. 1,36,000/- out of refund due to the petitioners. The facts of the case in brief are as follows.

M/S Khetan Fibres respondent no. 5 herein, defaulted in making the payment of Trade Tax dues for the assessment year 1983-84. The assessment order became final upto the High Court stage. Thereafter, the Department initiated recovery proceedings against M/S Khetan Fibres. In pursuance of the recovery proceedings, a Maruti Car, bearing registration no. DL-3 CA/2404, was attached by the authority concerned. The petitioner no. 1 by his letter dated 30-12-1998 addressed to the District Magistrate/Collector, Varanasi expressed his willingness to stand surety for a sum of Rs. 1,36,000/- against outstanding dues payable by the respondent no.5. On the basis of the said letter the District Magistrate passed an order dated 30-12-1998 releasing the said vehicle. It appears that the respondent no. 5 was not able to pay the outstanding trade tax dues, the Department thereafter issued a show cause notice to the petitioner no. 1 which was served on him on 11-11-1999, calling upon him to show cause as to why a sum of Rs. 1,36,000/- be not adjusted in the refund amount due to the petitioners. The Trade Tax Officer, Sector-1, Varanasi by the impugned order, after affording opportunity to the petitioners, adjusted a sum of Rs. 1,36,000/- from the refund due to the petitioners. The said order is under challenge in the present writ petition.

Heard Sri C.K. Parekh, learned counsel for the petitioners and the learned Standing Counsel for the respondents.

The contention of the learned counsel for the petitioners is that the letter given by the petitioner no. 1 is not a bond or surety as it is on unstamped paper, therefore, the petitioners in the eyes of law are not a sureties and, therefore, the amount in question cannot be adjusted from the refund due to the petitioners. Secondly, it was submitted that ultimately the vehicle in question was attached and sold subsequently against the sum due towards the arrears of Trade Tax dues and, therefore, there was no justification to pass the impugned order.

We have given careful consideration to the aforesaid submissions of the learned counsel for the petitioners.

A detailed counter affidavit has been filed by the Department. In para-7 of the counter affidavit the fact that the vehicle in question was attached and subsequently sold has been accepted with the rider that the said Maruti Car was attached and sold in a different recovery proceeding towards tax dues against the respondent no. 5. It appears from the counter affidavit that the respondent no. 5 is a defaulter of Trade Tax dues and in addition of demand of Rs. 1,36,000/- still the trade tax dues are outstanding against the respondent no. 5. This fact is evident from Annexure-1 to the supplementary counter affidavit of Sri Rai Vinod Kumar, Trade Tax Officer Sector-1, Varanasi.

The contention of the learned counsel for the petitioners is that the letter of 30-12-1998 is not a bond and, therefore, the same cannot be enforced against the petitioners has got no merit. It is the petitioner no. 1 who represented to the District Magistrate, Varanasi to release the Car in question. The petitioner no. 1 in unequivocal terms has stated in the letter that he is prepared to stand surety willingly for a sum of Rs. 1,36,000/- due from the respondent no.5 as trade tax dues. The District Magistrate acted upon the said letter and passed an order releasing the Car in question. This fact could not be denied by the learned counsel for the petitioners. In this view of the matter, the petitioners are estopped to say that their letter dated 30-12-1998 cannot be treated as surety. The petitioners cannot be permitted to play fast and loose. The petitioners having obtained an advantage on the basis of their letter dated 30-12-1998, they cannot be permitted to turn round and say otherwise. The letter dated 30-12-1998 was acted upon by releasing the car.

Apart from above, a writ court is not meant for such person. There is no equity in favour of the petitioners. It is not a fit case to exercise writ jurisdiction on the facts and circumstances of the present case. There is no merit in the writ petition.

The writ petition is dismissed summarily.

(Prakash Krishna, J.)

(Bharati Sapru, J.)




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