TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 1170
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....ties to recover its dues in appropriate proceedings provided by law also by clarify that VAT dues cannot claim priority over bank dues as secured creditor and may pass further appropriate direction in facts of case. (C) Pending hearing and final disposal of this petition this Hon'ble Court may grant interim relief by respondent no.2 to 4 may be restrained from taking any coercive action against the property mortgaged with the bank and operative of communication dated 21.04.2020 by respondent no.4 may be stayed till further order. (D) ..............." 2. The case of the petitioner bank that it had sanctioned a loan facility in the form of cash credit limit to M/s. Jay Steel Industries, where the proprietor of the firm also stood as a guarantor and executed a Memorandum of Deposit of title deeds by mortgage on 28.11.2011 of non-agricultural land of industrial purpose, Paiki Plot No.6, admeasuring 1040.60 Sq. Mtrs. of Village Veraval (Shapar), District Rajkot. The said deed of mortgage is registered deed at serial No.2644 in the office of the Sub-Registrar, wherein encumbrance certificate is also issued registering the charge of the petitioner bank over the property in questio....
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....petitioner has specifically pointed out the decisions delivered by the Coordinate Bench of this Court as well as the Division Bench of this Court to the authority, but conspicuous silence is made by the respondents, which has led the petitioner to approach this Court by way of the present petition under Article 226 of the Constitution of India for seeking the reliefs, as indicated above. 4. This petition came up for consideration before this Court initially on 7.1.2021, wherein, the Coordinate Bench of this Court was pleased to issue notice for final disposal, making it returnable on 28.1.2021 and later on, it has come up for consideration before this Court on 28.6.2021. Learned AGP Mr. Sahil Trivedi appearing on behalf of the authority had requested for some time to verify as to whether this controversy about the first charge is set-right by the decisions of this Court or not and with a view to take appropriate instruction and to look into the judgments, time was sought, which was granted and it is in this background, today, the matter has come up for further hearing. 5. Learned advocate Mr. Sandip Bhatt appearing on behalf of the petitioner bank has submitted that the petitione....
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.... analyzed by this Court and the decisions which are reflecting on page 55 and 82 respectively are covering the stand taken by the petitioner and as such, without much resistance, has left the matter to the discretion of this Court. 7. Having heard learned advocates appearing for the parties and having gone through the aforesaid submissions, it appears to this Court that following circumstances are not possible to be unnoticed:- (1) That the position prevailing on record is that the properties in question have been mortgaged with the petitioner bank undisputedly by registered mortgage deed and encumbrance certificate has also been issued to the petitioner bank incorporating the charge of the bank over the property. It is also not in dispute that the petitioner has taken all steps strictly under the provisions of the Act to realize the dues of the mortgaged property and it is only at that stage, the respondent No.4 has come out with a plea that they have got first charge over the property to realize their dues. (2) It is also reflecting from series of communications inter-se took place, wherein the petitioner has clearly pointed out to the authorities that they have got first c....
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....he statutory entitlement of the parties." (b) Para 51 to 56 of the judgment of the Division Bench of this Court dated 23.9.2019 in Special Civil Application No.17891 of 2018 read as under:- 51. Section 48 of the VAT Act would come into play only when the liability is finally assessed and the amount becomes due and payable. It is only thereafter if there is any charge, the same would operate. The authority under the VAT Act passed the assessment order later in point of time. 52. The language of Section 48 of the VAT Act is plain and simple and the phrase 'any amount payable by a dealer or any other person on account of tax, interest or penalty' therein assumes significance. The amount could be said to be payable by a dealer on account of tax, interest or penalty once the same is assessed in the assessment proceedings and the amount is determined accordingly by the authority concerned. Without any assessment proceedings, the amount cannot be determined, and if the amount is yet to be determined, then prior to such determination there cannot be any application of Section 48 of the VAT Act. We may also refer to Section 47 of the VAT Act. Section 47 of the VAT Act is wi....