Sheikh Mohammad Yaqoob vs. Union Territory Of J And K And Ors. (Tax And Recovery)

Held

The Court held that the Special Tehsildar Recoveries, Srinagar, possesses the jurisdiction to proceed with the recovery of GST arrears as land revenue. The Court reasoned that Section 79(1)(e) of the GST Act allows for recovery as arrears of land revenue. Rule 155 of the GST Rules mandates that the Proper Officer send a certificate to the Deputy Commissioner, vested with Collector powers, for recovery. The communication from the Proper Officer of the Taxes Department to the Deputy Commissioner, Srinagar (Collector) in form GST DRC-18 confirms the legality of the recovery process initiated through the Special Tehsildar Recoveries, whose office is established for such recovery functions within the Collectorate. Furthermore, Chapter VII of the Jammu & Kashmir Land Revenue Act, particularly Sections 61 and 63, clearly empowers Revenue Officers, not below the rank of Tehsildar, to enforce collection of land revenue, including by arrest and detention. The Court found the petitioner's contention that the Tehsildar lacked jurisdiction to be misconceived, especially in light of the summons issued on September 22, 2023, indicating the petitioner's awareness of the ongoing proceedings. The petition was dismissed as misconceived, and the interim directions were vacated.

Facts

The petitioner, Sheikh Mohammad Yaqoob, a government contractor, filed a writ petition challenging recovery proceedings initiated by the Special Tehsildar Recovery (Respondent No. 4) for alleged GST default. Previously, this court directed Respondent No. 4 to first decide the issue of maintainability and jurisdiction before proceeding on merits. However, Respondent No. 4 allegedly failed to comply and issued non-bailable warrants (NBWs) against the petitioner. A subsequent contempt petition led to a direction for Respondent No. 4 to decide the warrant recall application within a week. The petitioner claims Respondent No. 4 still failed to comply and intended to arrest him. The present petition seeks to quash the NBWs and a subsequent summon, and to command Respondent No. 4 to decide the jurisdictional issue first.

Key Issues

1. Whether the Special Tehsildar Recoveries has the jurisdiction to initiate recovery proceedings against the petitioner for alleged GST default, considering the petitioner's argument that only the Collector is competent under the Jammu & Kashmir Land Revenue Act. 2. Whether the non-bailable warrants and subsequent summons issued by the Special Tehsildar Recoveries are legally valid, given the petitioner's assertion of lack of jurisdiction and non-compliance with previous court orders. Petitioner's arguments: The Special Tehsildar Recoveries lacks the competence to initiate proceedings, as only the Collector is empowered under the Land Revenue Act. The Tehsildar proceeded on his own initiative, exceeding his authority. Despite this court's previous directions, the Tehsildar failed to address the petitioner's objections regarding jurisdiction and maintainability before issuing coercive processes like NBWs. Respondents' arguments: The Deputy Commissioner, State Taxes (Recovery), Kashmir Division, opted for recovery as Land Revenue through the Collectorate. The State Taxes (Recovery) Authority certified the amount to the District Collector for recovery as land revenue arrears. Proceedings were initiated by Respondent No. 4 under the District Collectorate. The petitioner's failure to respond to the demand and appearance process made the Tehsildar competent to issue NBWs. The petitioner did not produce the previous court order on the date NBWs were issued, absolving the Tehsildar of blame for non-compliance. The Tehsildar, as a Revenue Officer, is empowered to proceed with recovery, including issuing processes and warrants. The petitioner has not challenged the underlying liability order creating the tax demand.