TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 951
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter is taken up for hearing, as the issue involved is very short. 3. The petition has been filed under Article 226 of the Constitution of India with the following prayers :- "A. Your Lordship be pleased to issue a writ of mandamus or a writ in the nature of prohibition or certiorari or mandamus or any reference to the encumbrances, if any, which are contradictory to the provisions of section 26E of the SARFAESI Act. B. The Respondent No. 1 has no power such conditional sale certificate, when there is no rule of law which empowers the Respondent No. 1 to issue the Sale Certificate by mentioning the encumbrances of any Government authorities. B (1). Your lordship be pleased to issue a writ of mandamus or a writ in the nature of prohibition or certiorari or mandamus or any other appropriate writ, order or direction be given to the Respondent No. 2 to remove the provisional attachment order dated 18.05.2015 as well as the final attachment order dated 09.08.2016, whereby the charge was created on the property being Commercial property at survey no. 316/8p, Sr. No. 294, Opp. Rajdhani Hotel, Mahuva Road, Badhada, Ta. Savarkundla, Dist. Amreli, as the said property is not of the m....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Additional Affidavit in reply dated 21.11.2024, wherein the details of the attachment orders and notices are placed on the record. In the said attachment notices, the Respondent No. 2 has stated the provisional attachment order dated 18.05.2015 as well as the final attachment order dated 09.08.2016, whereby the charge was created on the property of the main borrower. 4.6 The Petitioner alleged that the property of the subject matter does not belong to Respondent No. 3 and hence, the charge over the property purchased by the Petitioner is not the subject matter of charge of the Respondent No. 2. The Petitioner further alleged that the charge of the Respondent No, 2 was subsequent and subservient to the charge of the Respondent No. 1. 5. Learned advocate Ms. Harshada K. Darji for the Petitioner submitted that the Respondent No. 1 has failed to comply with the provisions of Section 26E of the SARFAESI Act and also ignored the judgment of the Hon'ble Apex Court in the case of Central Bank of India Vs. State of Kerala & others reported in (2009) 4 SCC 94, in the case of Central Government has amended SARFAESI Act, 2002 by introducing Chapter-IV-A by amending Act, 44 of 2016 dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to "Name of Title holder" of property No. 3 to be "Sangitaben Hareshkumar Mashru" and not M/s. Rameshwar Cotton Industries, which is only shown as title holder of property No. 1. Therefore, the aforesaid property being property No. 3 in the auction notice has been wrongly attached as a property of M/s. Rameshwar Cotton Industries or any of its partners, whereas, in reality it was a self own property, a third party - guarantor. 7.3 Further it will be seen that the CERSAI Registration in respect of the charge by the Bank is dated 11.04.2008. Whereas, the date of issuance of notice under Section 135D of the Bombay Land Revenue Code, 1879 is 03.06.2015 and the date of attachment of the State Tax Authority is dated 13.08.2019. Therefore, evidently the Bank has prior charge over the property and following the law declared by this Court in Kalupur Commercial Co-operative Bank Ltd. Vs. State of Gujarat reported in AIRONLINE 2019 GUJ 418, it has to be held that the property in question, being property No. 3 in the auction notice dated 20.06.2022 does not bear any charge for the crown debts, after the same has been purchased in the auction by the Petitioner. In Kalupur (Supra) this Court h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... away from defaulting member. It therefore held that by virtue of rule 43 of Bombay Stock Exchange Rules security provided by a member shall be a first and paramount lien for any sum due to Stock Exchange. Thus, Bombay Stock Exchange being secured creditor would have priority over Govt. dues and if a member of BSE was declared a defaulter, Income-tax department would not have priority over all debts owned by defaulter member. The first thing to be noticed is that the Income Tax Act does not provide for any paramountancy of dues by way of income tax. This is why the Court in the case of Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. [2005] 5 SCC 694 (para 19) held that Government dues only have priority over unsecured debts and in so holding the Court referred to a judgment in Giles v. Grover (1832) (131) English Reports 563 in which it has been held that the Crown has no precedence over a pledgee of goods. In the present case, the common law of England qua Crown debts became applicable by virtue of Article 372 of the Constitution which states that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until alt....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the State Act would come into force from the assessment of the earlier financial years and what is relevant in the present case is that the dues and resultantly the charge under Section 48 of the VAT Act came into existence after the implementation of Section 31B of the RDB Act. 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 ....