Bombay High Court
Indian Overseas Bank Thr Its Authorised ... vs Deputy Commissioner Of State Tax Gst ... on 26 September, 2023
Bench: B. P. Colabawalla, M. M. Sathaye
6.WP.11733.23.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11733 OF 2023
Indian Overseas Bank ..Petitioner
Versus
Deputy Commissioner of State
Tax & Ors ..Respondents
ANJALI Digitally signed by
ANJALI TUSHAR
TUSHAR ASWALE
Date: 2023.09.26
ASWALE 15:02:00 +0530
Mr.Sidharth Samantaray, with Ms.Kalyani Wagle
i/b .T.N.Tripathi & Co, Advocates for the Petitioner
Mr.A. I. Patel, Addl. G.P., for the Respondent/State.
CORAM : B. P. COLABAWALLA &
M. M. SATHAYE, JJ.
DATE : SEPTEMBER 26, 2023
P.C.
The above Petition is filed by the Petitioner to quash and set aside the impugned attachments dated 24 th February, 2022 and 7th April, 2022 in respect of the secured assets of the Petitioner bank and the attachment dated 31st July, 2023 in respect of Account No.199802000055555 and the Demand Notice dated 4th August, 2023. The reliefs sought in the above Petition are on the basis that the bank, under the provisions of section 26E of the SARFAESI Act, 2002 have a priority over the dues of the sales tax.
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6.WP.11733.23.DOC 2 The learned counsel appearing on behalf of the Petitioner submitted that in the facts of the present case, the mortgage in relation of the secured assets was created as far back as in the year 2014 and the said mortgage has been registered with Cersai as far back as on 8th November, 2014. In contrast, the attachment orders passed by the Sales Tax Authorities are dated 24th February, 2022, 7th April, 2022 and 31st July, 2023. 3 The learned counsel appearing on behalf of the Petitioner bank submitted that once this is the factual situation, the issues raised in the present Petition are squarely covered by a Full Bench judgment of this Court in the case of Jalgaon Janata Sahakari Bank Ltd v/s Joint Commissioner of Sales Tax Nodal [(2022) SCC Online Bom 1767] and a Division Bench Judgment of this Court in the case of Punjab National Bank v/s Assistant Commissioner of Sales Tax [(2023) SCC Online Bom 682].
4 Mr. Patel, the learned Additional G. P. waives notice on behalf of Respondent Nos.1, 2 & 5 and seeks two week's time to file an affidavit in reply to the above Writ Petition. Page 2 of 4
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6.WP.11733.23.DOC 5 Acceding to his request, we direct that the affidavit in reply shall be filed on or before 10th October, 2023 and a copy of the same shall be served on the advocates for the Petitioner. 6 As far as interim relief is concerned, we find that a prima facie case is made out for grant of interim relief. We say this because on the facts narrated above, it is clear that the impugned attachments have been levied only in the year 2022. Once this is the case, at least, prima facie, the Sales Tax dues would not get precedence and/or priority over the dues of the bank. In these circumstances, we find that it would be expedient and necessary to grant ad-interim relief in terms of prayer clause
(c) which reads thus:-
"(c) That pending the hearing and final disposal of this petition, the Hon'ble Court may be pleased to stay the operation, effect and implementation of the impugned attachments dated 24th February, 2022 and 7th April, 2022 in respect of secured assets and attachment dated 31st July 2023 in respect of account No.199802000055555 and demand notice dated 4th August 2023 and or any further action pursuant thereto in any manner whatsoever in respect of the said assets."
7 We make it clear that by virtue of this stay, the bank is now free to operate Account No. 199802000055555 without any impediment.
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6.WP.11733.23.DOC 8 Place the above matter on Board on 12 th October, 2023 under the same caption.
9 This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[M. M. SATHAYE, J.] [ B. P. COLABAWALLA, J ]. Page 4 of 4
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