Smt. Anurapa Bose @ Anurupa Basu vs The State Of Jharkhand
2022 Latest Caselaw 4710 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P.(T) No. 3580 of 2022

          Smt. Anurapa Bose @ Anurupa Basu              ---          --- Petitioner
                                              Versus
          1.    The State of Jharkhand
          2.    The Commissioner of Commercial Taxes, Ranchi.
          3.    The Joint Commissioner of Commercial Taxes,
                Jamshedpur Division, Jamshedpur.
          4.    The Certificate Officer, East Singhbhum, Jamshedpur.
                                                          ---        --- Respondents
                                                   ---

CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

---

                For the Petitioner :       Mr. Nitin Kr. Pasari, Advocate
                                           Ms. Sidhi Jalan, Advocate
                For the State        :     Mr. P.A.S. Pati, G.A.-II

06/24.11.2022         Heard learned counsel for the parties.

2. Reference is made to the order dated 21st September 2022 reproduced hereunder :-

"Petitioner has assailed the notice dated 9th July, 2022 (Annexure-7) relating to different Financial Years, by which the petitioner, who is the widow of Late Director, Sujit Kumar Basu has been asked to pay the outstanding dues of the Company, M/s. Perfect Electric Concern Ltd. Learned counsel for the petitioner submits that petitioner being widow cannot be made liable for the dues of Company when she is not a guarantor of the Company. Learned counsel for the petitioner submits that in the case of same petitioner concerning similar demand notice, the issue has been decided in favour of the petitioner by judgment dated 28th March, 2012 passed in W.P(T) No. 103 of 2012. The impugned notices, therefore, amounts to breach of the orders of this court.

Learned counsel for the State is allowed three weeks' time to seek instruction and file counter affidavit. They may, in the meantime, also withdraw the notices if they are contrary to law and in teeth of the decisions rendered by this Court earlier in the case of same petitioner.

List this case in 2nd week after reopening of Dussehra vacation.

In the meantime, no coercive steps be taken pursuant to the notice dated 9th July, 2022 (Annexure-7) issued in connection with Certificate Case no. 02(CT)/2007-2008 to 13 (CT) 2007-2008."

3. The same petitioner had to approach this Court in W.P.(T) No.103 of 2012 on issuance of a demand notice in her name concerning the outstanding dues of the company M/s. Perfect Electric Concern Ltd. since she is the widow of the deceased Director Sujit Kumar Basu. Coordinate Bench of this Court vide judgment dated 28th March 2012 (of which one of us Aparesh

Kumar Singh, J. was a Member) held as under :-

"Heard learned counsel for the parties.

The very short point involved in the writ petition is that petitioner was served with a demand notice, Annexure-5 dated 29.12.2011 and petitioner is apprehending that under the garb of this notice for recovery of certain dues from the registered company M/s Perfect Electrical Concern Limited, Jamshedpur, the respondents are proceeding to recover the dues of the company from the personal property of the writ petitioner, who is the wife of one of the directors, Sujit Kumar Basu, who is no more.

Learned counsel for the respondents submitted that the Central Bank of India, Jamshedpur Branch has initiated proceeding for recovery of loan advanced to the company, wherein company's property may be sold out. In view of the above, learned counsel for the respondent submitted that the respondent may be permitted to take his plea of State's first charge in recovery proceeding initiated by the Central Bank of India, Jamshedpur Branch.

However, this position cannot be disputed that the company is a legal entity which can hold property and if, there is dues of the company, then the recovery can be affected from the property of the company and not from the property of the Directors, if they themselves are not personally liable, which may be due to the personal guarantee or mortgage of their personal property. However, in this case it has not been stated by the respondents that deceased-director of the company, Sujit Kumar Basu has mortgaged his property to the respondents in security to the amount sought to be recovered as dues against company and which has devolved upon the petitioner's wife of former Director of the Company Sujit Kumar Basu.

Since, the amount can be recovered only from the property of the company as well as from its guarantor in terms of the guarantee and mortgagor in terms of the mortgage and here simply because notice has been issued in the name of the company, which also indicates that respondents have not held that the petitioner herself is liable for any of the amount of the company, therefore the notice dated 29.12.2011 issued in the name of the company cannot be executed against the writ petitioner and no money can be recovered from the property of the writ petitioner, may it was received by the petitioner in succession due to death of her husband.

Since the notice under challenge is in the name of the company, we find no reason to set aside the above notice, as the respondents cannot recover any money from the writ petitioner in the name of the company.

This writ petition is, accordingly, allowed."

4. The respondent nos. 1, 2, 3 and 4 have filed a counter affidavit on 4th November 2022 wherein relying upon the provisions of Section 18 of the Central Sales Tax Act, 1956 and Section 38 of the Bihar Finance Act, respondents sought to defend the notices. However, on being specifically asked as to how the petitioner could be made liable for the outstanding dues of the company as a widow of the deceased Director, learned counsel for the State took time and has filed a second counter affidavit on 17 th November 2022. This has been sworn by the respondent no.4 Certificate Officer.

5. Learned counsel for the respondent State submits that the impugned notices are not in the name of the petitioner on this occasion, but inadvertently it has been issued upon the name of the Perfect Electric Concern Limited through the proprietor Sujit Kumar Basu, deceased husband of the petitioner. Therefore, the impugned notices have been stayed. The warrant issued in the name of the company pursuant to the impugned notices has also been stayed.

6. Learned counsel for the State Mr. Pati submits that the respondent Certificate Officer has sought apology for the inadvertence on his part since he was not aware of the judgment rendered by this Court in W.P.(T) No.103/2012. He also submits that the impugned notices would not, in any case, entail any legal consequence upon the petitioner as they are not directed towards her and rather intended to realize the dues from the company M/s Perfect Electric Concern Limited. As such, the petitioner may not bear any apprehension.

7. On consideration of the submissions of learned counsel for the parties and the stand of the respondents contained in the second counter affidavit, it is but evident that the impugned notices are not going to have any legal effect upon the petitioner as they were issued in the name of the company M/s Perfect Electric Concern Limited. Respondent no.4 is cautioned to be careful in this regard as his acts were bordering on over-reaching the judgment of this Court passed against the respondents in the case of the same petitioner where demand notices were issued in the name of the petitioner for dues of the same company. The respondent Certificate Officer would do to recall the impugned notices and the warrant issued in the name of M/s Perfect Electric Concern Limited through its Proprietor which is not as per law. The instant writ petition stands disposed of.

8. It goes without saying that the Certificate Officer is at liberty to proceed against the defaulter M/s Perfect Electric Concern Limited for realization of the outstanding dues in accordance with law.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.) Shamim/