TaxTMI 
TaxTMI 
2018 (10) TMI 1563
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....t of Maharashtra, is a deemed State Financial Corporation under Section 46 of the State Financial Corporation Act, 1951, by virtue of notification dated 11.12.1986, issued by the Government of India. 4. By lease deeds dated 19.01.2007 and 30.11.2007, the Ujjain Development Authority had allotted two plots of land admeasuring 11,156.93 Sq. Mtrs, situated at Plot No.D9, Ujjain to respondent No.4 on which the respondent No.4 constructed a shopping mall including the multiplex theatre. For the purposes of construction and development of the mall, the respondent No.4 had taken certain financial assistance from the respondent No.5 and created a first charge by way of mortgage of respondent No.4's rights and title to the said land and the Mall constructed thereon. 5. On 24.09.2012, an amount of Rs. 50,87,50,703/- (Rs.Fifty Crores, Eighty Seven Lacs, Fifty Thousand and Seven Hundred Three) was due and payable by the respondent No.4 to respondent No.5. Accordingly, the respondent No.5 exercised its right under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFAESI Act, 2002) and submitted an application before the Debts Rec....
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.... the Companies Act, 1956 and is the first charge on the properties of the Company under liquidation, as contemplated in Section 88 of the Finance Act, 1944. 11. As per amendment made in Section 88 of Finance Act, 1994 on 8/04/2011, the liability under the Service tax Act to be the First Charge and the same is recoverable from the present petitioner. 12. Accordingly, out of Rs. 7,79,80,171/-(inclusive of penalty), which is recoverable from respondent No.4 - M/s. Ujjain Treasure Bazaar Pvt. Ltd., Indore being confirmed demand, recovery proceedings for Rs. 6,83,99,472/-(inclusive of penalty) shall be initiated in the event of dismissal of appeals already preferred by M/s. Ujjain Treasure Bazaar Pvt. Ltd., Indore against order in Original No.15/Commr/ST/IND/2014 dated 18/12/2014 and requested to pay an amount of Rs. 95,80,699/-(inclusive of penalty), failing which, action under the provisions of Section 87 of the Finance Act, 1994 may be initiated for recovery of government dues. 13. It is this action which has been impugned in this writ petition on the ground that the present petitioner has purchased the asset of respondent No.4 from respondent No.5 - SICOM Ltd. which is establishe....
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..... has drawn our attention to the proviso to Section 87 (c) and Section 88 of Finance Act, 1994 and submitted that the power to distrain property under the aforesaid provision could only have been exercised by the respondents No.1 to 3 in respect of "any movable or immovable property belonging to or under the control of" the respondent No.4 on the date of the order of distraint, viz. the order of attachment dated 4.03.2017 issued by the respondent No.2. In the present case, on 4/03/2017, the date of the attachment order, the respondent No.4 was neither the owner, nor did it have control over the property comprising the mall. 19. He further submitted that in the present case, since the transfer of the asset to the petitioner was made in terms of the order of Debts recovery Tribunal, Mumbai passed under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993, the operation of Section 88 of the Finance Act, 1994 creating a first charge in favour of the respondent No.1 to 3 is specifically excluded. He has also drawn our attention to the date of events and submitted that the respondent No.5 had taken symbolic possession of mortgaged asset on 10/08/2012 and physical/actual possessi....
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....any of the provisions of this Chapter or of the rules made thereunder is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below:- (c) the Central Excise Officer may, on an authorisation by the 3[Principal Commissioner of Central Excise or] Commissioner of Central Excise, in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus amount, if any, to such person; 2[Provided that where the person (hereinafter referred to as predecessor) from whom the service tax or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, o....
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....g the amounts of financial assistance extended to the borrower, has appointed the PURCHASER to undertake the day to day management of the said property and also to assist SICOM in achieving an expeditious leas/sale of the said property and/or units/shops therein in whole or in part vide agreement dated December 24, 2013 on such terms and conditions more particularly contained therein." 27. It is not in dispute that the business of the respondent No.4 M/s. Ujjain Treasure Bazar Ltd. Indore had been taken over by the petitioner - M/s Future Market Networks Ltd. Mumbai on "as is where is and what is" basis according to the Tri-Party Settlement Order issued by DRT, Mumbai vide order dated 30/07/2014. In these circumstances, the acquisition by the petitioner is not limited to immovable property only but they also acquired entire running business of the respondent No.4 and, therefore the plea of petitioner that they had not taken over the business / liabilities of the respondent No.4 does not appear to be correct. 28. It is an admitted fact that entire business of the respondent No.4 has been transferred to the petitioner and Ujjain Treasure Bazar Mall was under the control and possess....