S. Ravindra Bhat, J.@mdashThe petitioner impugns a recovery proceeding by which the respondent i.e. Excise and Taxation Officer-cum-Assessing Authority, Rewari, Haryana sought to enforce a bond for the recovery of dues under the Haryana General Sales Tax Act (hereafter called ''the State Act'').
2. The brief facts necessary for deciding this petition are that one M/s. J.B. Paper Mills Ltd. made a reference u/s 15(1) of the Sick Industrial Company (Special Provisions) Act, 1985. The company was declared sick by the BIFR on 14.9.1989. In the meanwhile, the first respondent issued a warrant of attachment of the company''s properties to realise its dues under the Sales Tax Act on 21.10.1989. The petitioner issued a surety bond on 25.10.1989 undertaking to pay Rs. 9.50,000/- towards Sales Tax liability of the company. At this stage, it would be relevant to extract the material conditions of the said bond which inter alias is in the following terms:
Know all men by these presents that I/We J.B. Paper Mills Ltd., Plot No. 7, Sector VI, Industrial Complex, Dharuhera (Haryana) with registration certificate No. MOH 5562/III dt. 22.7.82, if any, am/are held and firmly bound to the Governor of Haryana (hereinafter referred to as ''the government'' which expression shall, unless excluded by, or repugnant to, the context, include his successor-in-office and assigns), in the sum of Rs. 9,50,000/- (Rupees Nine lacs fifty thousand only) (hereinafter referred to as the said sum) to be paid to the Government on demand, for which payment will and truly to be made. I/We bind myself/ourselves/my/our heirs, executors, administrators and legal representatives by these presents.
Whereas the above bounden has been required by the Assessing Authority Rewari to furnish security for the said sum for the purpose of securing the payment of any amount payable by him/them under the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the Act), and to indemnify the Government against all losses, costs or expenses which the Government, may, in any way, suffer, sustain, or pay by reason of the omission, default or failure or insolvency of the above bounden or any person or persons acting under or for him/them to pay the said sum in the manner prescribed under the said Act.
3. The first respondent sought to take coercive measures against the company, to realise its Sales Tax dues. The action was impugned before the Punjab and Haryana High Court being Writ Petition No. 2520/1990. By its order dated 29.5.1990, that High Court rejected the writ petition, directing the respondent to decide the issue within a period of two months by passing a speaking order. Consequently, the first respondent issued an order on 28.7.1990. A copy of that order is part of the record; it records that the sales tax arrears, both (State and Central) of approximately Rs. 36,20,600/- were pending and due as on 31.3.1990 from the firm/company.
4. The Collector, through the Assistant Collector, i.e. the second respondent apparently acting in furtherance of a request made by first respondent issued notice on 8.5.1990 claiming the sum of Rs. 10,54,722/- on account of Central Sales Tax arrears. The petitioner responded to this 2.7.1990, that the company had been declared sick and that no further action ought to be taken. The second respondent required the petitioner, by a notice dated 17.8.1990 to produce evidence of any interim order. Subsequently, on 23.11.1990, the petitioner was directed to deposit Rs. 9,50,000/- with the second respondent failing which he was warned that attachment proceedings would be initiated. This time, the second respondent claimed that the amount was due on account of ''Sales Tax arrears''.
5. Although this petition was premised on the existence of an order under the 1985 Act, the further contention that the company had been declared sick and, Therefore, respondent could not seek recourse to coercive proceedings, the learned Counsel did not press that ground. During the hearing, he confined the petitioner to two main grounds.
6. It was urged that the bond furnished by the petitioner covered only dues under the Haryana General Sales Tax Act. Counsel urged that in these circumstances, the respondent could not enforce the Central Sales Tax liabilities of the company. He sought to place reliance on a Division Bench ruling of this Court in R.H. Enterprises and Ors. v. Commissioner of Sales Tax and Ors. (1992) 85 STC 251 to say that Central Sales Tax is distinct and separate from local/State enactments dealing with Sales Tax and that merely because common officials are appointed under the two enactments to administer provisions of the Central Sales Tax, they cannot seek recourse to provisions of the Sate Act for the purpose of issuing orders under the Central Sales Tax.
7. The second ground urged in support of the petition was that the property sought to be proceeded against by the respondent is residential. Learned Counsel relied upon Section 60(1) of the CPC and urged that in terms of that provision, residential properties cannot be attached. He also relied upon another judgment of a Division Bench of this Court reported as
8. I have considered the submissions and examined the materials on record. There is no dispute about the liabilities of the company. The speaking order issued by the first respondent pursuant to directions of the Punjab and Haryana High Court records that cumulative dues as on 31.3.1990 aggregated Rs. 36,20,600/-. The petitioner was undisputedly a Director of the Company. He had furnished a bond on 25.10.1989 agreeing to pay the dues. Considerable emphasis was placed on second paragraph of the bond to say that what was undertaken by him was to indemnify the omission of the company towards the dues payable under the Haryana General Sales Tax Act.
9. The judgment of the Division Bench in R.H. Enterprises was rendered in the context of issuance of statutory forms under the Central Sales Tax Act. The Local Sales Tax Authorities duly empowered in terms of Central Sales Tax Act had apparently refused to issue them. In that context the Court held as follows:
Learned Counsel for the respondents is unable to bring to our notice and provisions of the Central Sales Tax Act or Rules framed there under which in any way empowers the sales tax authority to refuse the issue of ''F'' forms. The sales tax authorities are concerned with the safeguarding of the revenue under the Act. The Central Sales Tax Act is distinct and separate from the Delhi Sales Tax Act. Merely because it is the officers appointed under the Delhi Sales Tax Act who administer the provisions of the Central Sales Tax Act, would not empower those officers to take recourse to the provisions of the Delhi Sales Tax Act for the purpose of passing an order relating to the Central Sales Tax Act. As we read Section 6A and rule 4C we do not find any power with the respondents to refuse to issue the forms. Of course, the assessing officer is entitled to ask the petitioner to furnish security in terms of Sections 7(2A) and (3A). This means that if a request is made by a dealer from the furnishing of a form and there is any apprehension in the mind of the assessing authority that there may be a possible misuse of the form which may result in prejudice being caused to the revenue, then the dealer can be required to furnish security. The same has not been done in the instant case. For a period of over 11 months the application of the petitioner for 34 ''F'' forms remained unattended. It is only when the present writ petition was filed that 9 such forms were given to the petitioner. This delay seems to lend support to the allegation of the petitioner contained in the writ petition that the Sales Tax Officer concerned has acted in a vindictive manner and he has tried to harass and misuse his powers. Nine forms were issued to the petitioner on 16th October, 1990, when no order u/s 7 had been passed. We see no reason as to why the petitioner should not have been furnished the balance 25 forms also.]
10. The above extract would show that the Court was not concerned with the mode of recovery under one or the other enactment. Besides, the head note relied by counsel appears to be misleading as there is no discussion or mention about the lack of power of local authorities as has been urged by the petitioner.
11. The mechanism for recovery of the State sales tax i.e. Haryana General Sales Tax appears to be embodied Section 34 of that enactment. It empowers the authorities to recover the dues as arrears of land revenue by recourse to the land revenue laws. Likewise, the mechanism under the Central Sales Tax Act (Section 9(2A) of the Central Sales Tax Act as well as the Rule 7(b) of the Central Sales Tax (Haryana Rules) prescribe an identical mode of recovering dues as if they are arrears of land revenue. In this case, the relevant local statute is the Punjab Land Revenue Act. There is no dispute that the respondent has sought recourse to its provisions. In view of these, I am unperceived by the submission of the petitioner that the impugned recovery certificate which seeks to enforce the bond for Rs. 9,50,000/- is without authority of law.
12. As far as the arguments on applicability of Section 60 CPC is concerned, facially it is applicable to execution proceedings under the Civil Procedure Code. No provision of law was brought to my notice indicative of applicability of Section 60 to recover proceedings in revenue laws. Indeed Section 77 of the Punjab Land Revenue Act authorises attachment and sale of all types of properties.
13. In view of the above findings, I am of the opinion that this petition is unmerited; it is accordingly dismissed. Interim order is hereby vacated; Rule discharged. No costs.
