(1.) BY this application in the nature of writ filed by the petitioner under section 8 of the West Bengal Taxation Tribunal Act, 1987, the petitioner has intended to get unsealed of suite No. 26, second floor of 8, Ho Chi Min Sarani, Kolkata, sealed by the Certificate Officer, Kolkata and 24 Pgs. (respondent No. 1) on August 11, 2010 and on the grounds stated therein. The undisputed rather admitted and/or established facts as is come out from the application and the documents annexed thereto and from the submissions of both the sides are that the father of the petitioner, namely, Mr. Sant Kumar Jhunjhunwala a resident of 6, Lee Road, Kolkata and one Sajjan Kumar Jhunjhunwala along with others were the directors of M/s. Ajanta Glass Industries Pvt. Ltd., incorporated on September 22, 1986 having registered office at 8, Ho Chi Min Sarani, Kolkata and subsequently the registered office shifted to 13, Crooked Lane, Kolkata 700 069. It is the contention in the application that the father of the petitioner, i.e., Mr. Sant Kumar Jhunjhunwala and Mr. Sajjan Kumar Jhunjhunwala were so inducted as directors of the said Ajanta Glass Industries Pvt. Ltd., dated September 20, 1990 and it is alleged that they have resigned from the directorship of the said company on October 16, 1990. The Certificate Officer, 24 Pgs. (respondent no. 1) initiated certificate proceedings being certificate Case Nos. 68 and 69 - ST/EL/1997 -98 in the names of the directors of M/s. Ajanta Glass Company Pvt. Ltd., for realization of the assessed dues of the companies for the period from February 11, 1991 to March 31, 1991 and fourth quarters ending on March 31, 1992 and sent 4 Nazirs at the registered place of business of the petitioner at 8, Ho Chi Min Sarani, Kolkata, for attachment of moveable property and by the impugned order dated August 11, 2010 respondent No. 1 has sealed the suite No. 26, second floor, 8, Ho Chi Min Sarani belongs to the petitioner and has so sealed the same for attachment of the assets lying therein on issuance of attachment notice in form STPC -23 and hence the present application praying unsealing of the same at once. It is contended in the application and submitted by Mr. Dudhoria, learned advocate of the petitioner that the petitioner is the director of 3 companies, namely, (i) M/s. Hindustan Refrigeration (P) Ltd., (ii) Short Street Projects (P) Ltd. and (iii) J. J. Spring Manufacturing (P) Ltd., having registered office at suite No. 26, second floor of premises 8, Ho Chi Min Sarani. It is alleged in the application and submitted by Mr. Dudhoria that the petitioner is an exclusive owner/possessor of the said suite No. 26 and his father Sri Sant Kumar Jhunjhunwala has no connection with the said suite in question and hence sealing of the said suite by an order of respondent No. 1 is a nullity and is liable to be set aside at once. It is further alleged and submitted that the father of the petitioner Sant Kumar Jhunjhunwala was the director of the defaulted company Ajanta Glass Company Pvt. Ltd., only for a short period, i.e., from September 20, 1990 to October 16, 1990 and that apart the tax recovery (TRC) proceedings relate to the period from February 11, 1991 to March 31, 1991 and for the period 1991 -92 and, therefore, does not relate to the tenure of directorship of the father of the petitioner and, therefore, he has/had no liability in connection with the defaulted tax liability of the company and hence sealing of the suite in question for realization of the said dues is arbitrary and without any legal basis and, therefore, liable to be set aside and that should be unsealed immediately.
(2.) IN refuting the above contention/allegation of the petitioner and submission of the learned advocate it is submitted by Mr. B. Majumdar, learned State Representative, that at the relevant point of time of nonpayment of the assessed due taxes by the said Ajanta Glass Company Pvt. Ltd., the father of the petitioner, namely, Sant Kumar Jhunjhunwala was the director and as per the provisions of the Companies Act he was liable to pay the proportionate dues of the sales tax. It is further submitted by Mr. Majumdar that though the tax recovery proceedings have been initiated for and proceeded with realization of the dues of the glass company for the periods from February 11, 1991 to March 31, 1991 and also 4 quarters ending on March 31, 1992 the father of the petitioner being the director of the company for the said period was/is liable to the proportionate tax due for the said period. It is also submitted by Mr. Majumdar that it has established on record that the registered place of M/s. Ajanta Glass Industries Pvt. Ltd., was at the suite No. 26, second floor of premises No. 8, Ho Chi Min Sarani and there is no documents to show that the petitioner is the absolute owner/possessor of the said suite and/or the registered place of M/s. Ajanta Glass Industries was shifted to 13, Crooked Lane, Kolkata 700 069 from before the relevant period of due tax, i.e., from 1990. Mr. Majumdar, therefore, prays for dismissal of the application with cost.
(3.) IT appears from the record that opportunity was given to the petitioner to prove that he is the exclusive possessor of the suite in question and/or his father Mr. Sant Kumar Jhunjhunwala was not at all director of the defaulted company in payment of tax and for the periods from February 11, 1991 and on subsequent period thereafter to disown the liability of payment of the proportionate due tax. It is also not substantiated by documents that the father of the petitioner was resigned from the directorship on and from October 16, 1990 and/or from any earlier date to absolve the liability of payment in proportionate to the share in the company. There is also no document to prove exclusively that there are no assets in the sealed suite in question and/or the assets lying therein are exclusively of the petitioner and/or his father has no right thereon.
However, on consideration of the documents on record when it appears that there is no document to show that respondent No. 1 issued due notice to the father of the petitioner for payment of the dues and/or proportionate amount of the assessed dues by date fixed in default to attach the assets of the suite in question and/or the assets lying therein are of the defaulting company we find no legality in sealing the said suite No. 26, second floor of 8, Ho Chi Min Sarani as legal and valid. That apart the petitioner filed documents to show that the said tax recovery proceedings of 68 and 69 have been initiated by notice in the name of other two directors only, namely, Sri Bhagabanti Prasad Puruswattam Puria and Sri Eddel Mular and no such notice has been issued and/or served upon the father of the petitioner. Moreover, it is established on record that the purpose of scaling of the suite No. 26 in question has not been actuated as per the procedure of attachment prescribed under the Public Demand Recovery Act.;