TaxTMI 
TaxTMI 
2022 (4) TMI 198
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....under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: "(A) Your Lordships may be pleased to admit and allow the present petition. (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and direction and further be pleased to quash and set aside the impugned order dated 13.08.2020 passed by the Ld. Respondent No.2. (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and direction and further be pleased to direct the Ld. Respondent No.2 to release the charge on the property of the petitioner, being Revenue Survye No.252/2, Plot No.01, village : Gomta, Taluka : Gondal, District....
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....t in the absence of any charge, the writ applicant may dispose of the land and factory building is absolutely misconceived and not well-founded as Section 48 of the GVAT Act takes care of the situation. We are not impressed with such a submission. 6. At one point of time, Mr. Mehta, the learned counsel, during the course of his submissions, got confused between an attachment of property and charge created over the property. Mr. Mehta would also submit that the action on the part of the respondent No.2 is nothing, but amounts to attachment of the property pending the appeal before the first appellate authority. Mr. Mehta would submit that the same is not permissible in law as there is no provision in the GVAT Act which permits attachment ....
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....unt is payable by a dealer or any other person on account of tax, interest or penalty for which he is liable to pay to the Government, the same shall be a first charge on the property of such dealer or as the case may be, such person. It appears that in the case on hand, the State Tax Officer(3), Unit - 94, Gondal addressed a letter dated 13th August 2020 to the Talati-cum-Mantri of village : Gomta, Taluka : Gondal, which reads thus: "No.:RVEA-3/U-94/GONDAL/2020-21/Ja.2154/55 DATE.13/8/2020 To, The Talati Mantri At Gomta, Ta. Gondal. Subject:-To provide information of property/making entry of encumbrance. Name of the dealer firm:- Shri Radhekrishna Ginning & Pressing Pvt. Ltd., At Gomta, Ta. Gondal ....
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....plicant as it appears that the bank from whom the writ applicant has obtained overdraft facility is creating some problems. It is for the writ applicant to sort it out with the bank. Today, there is no good reason for this Court to interfere in the matter. 12. We take this opportunity to explain the effect of attachment and also the effect of charge. In Mulla's Civil Procedure Code, 8th Edn., the law as applicable in India is thus summarised (p. 187): "Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations; it does not confer any title on the attaching creditors. There is nothing in any of the provisions of the Code which in terms makes the attaching creditor a secu....
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.... The concept of charge emanates from Section 100 of the Transfer of Property Act. Section 100 of the Transfer of Property Act, 1882 defines "charge" as follows: "100. Charges.- Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust- property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any la....