Bombay High Court
Bank Of Baroda, Nagpur Branch ... vs Govt. Of Maharashtra Through Its ... on 26 September, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6033 OF 2015
Bank of Baroda, a Body Corporate
established under Banking Companies
(Acquisition and Transfer of Undertaking)
Act, 1970 (Act No.V of 1970), having
its Branch Office at South Ambazari
Branch, Laxminagar, Nagpur-440010,
acting through its Principal Officer,
Chief Manager, i.e. Shri Jgdish Ramdas
Nimje.
... Petitioner
- Versus -
1) Government of Maharashtra, through
its Sales Tax Department, BST
C-001, Recovery Branch, 1st Floor,
Vikrikar Bhavan, Civil Lines, Nagpur,
acting through its Sales Tax Officer.
2) Linkson International Ltd., a Company
registered under Companies Act, Office
at 4th Floor, Poonam Plaza, Palm Road,
Civil Lines, Nagpur - 440 001.
3) Linkson Coal and Minerals Pvt. Ltd.,
A Company registered under Companies
Act, Office at 4th Floor, Poonam Plaza,
Palm Road, Civil Lines, Nagpur-440001.
4) Linkson Ispat & Energies Pvt. Ltd.,
A Company registered under Companies
Act, Office at 4th Floor, Poonam Plaza,
Palm Road, Civil Lines, Nagpur-440 001.
5) Linkson International Club and Resorts
Pvt. Ltd., a Company registered
under Companies Act, Office at 4th
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Floor, Poonam Plaza, Palm Road,
Civil Lines, Nagpur - 440 001. ... Respondents
-----------------
Shri S.N. Kumar, Advocate for petitioner.
Shri A.V. Palshikar, Assistant Government Pleader for respondent no.1.
Shri R.R. Vyas, Advocate for respondent nos.2 to 5.
----------------
CORAM : SMT. VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATED : SEPTEMBER 26, 2016
ORAL JUDGMENT (PER SMT. VASANTI A NAIK
, J.) :
Rule. The rule is made returnable forthwith. The writ
petition is heard finally at the stage of admission with the consent of the
learned Counsel for the parties.
By this writ petition, the petitioner challenges the notice of
auction dated 5/10/2015 published by the Sales Tax Officer thereby
putting the property of the respondent no.5 for sale.
According to the petitioner Bank, the respondent no.5 had
secured loan from it and had mortgaged non-agricultural land bearing
Khasra No.148, admeasuring 7.99 hectares of Mouza Mangrul. It is
stated that though the respondent nos.3 and 4 have defaulted in paying
the sales tax dues, while auctioning their properties, the Sales Tax Officer
has wrongfully included the property of the respondent no.5 that is
mortgaged with the petitioner Bank though the respondent no.5 is not
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liable to pay the sales tax or value added tax dues. It is stated that the
issue involved in this case stands answered in favour of the petitioner by
the judgment dated 3/8/2016 in Writ Petition No.669/2016.
Shri Palshikar, the learned Assistant Government Pleader
appearing for the respondent no.1, admits that a similar issue was
considered by this Court in Writ Petition No.669/2016 and by the
judgment dated 3/8/2016, this Court has quashed the auction notice by
which the property that was mortgaged to the Union Bank of India was
sought to be auctioned as no sales tax dues were payable by the concerned
respondent. It is admitted that in the instant case, the sales tax and value
added tax dues are not liable to be paid by the respondent no.5 though
the respondent nos.3 and 4 are liable to pay the same. It is stated that the
respondent no.5 is liable to pay the profession tax dues to the extent of
Rs.20,000/-.
On hearing the learned Counsel for the parties, it appears that
the auction notice is liable to be quashed and set aside insofar as property
belonging to respondent no.5 is concerned. The sales tax and value added
tax dues are not payable by the respondent no.5 though they are payable
by the respondent nos.3 and 4. The Sales Tax Officer would be justified in
putting the properties of the respondent nos.3 and 4 to auction, but the
properties of respondent no.5 cannot be put to auction as sales tax or
value added tax dues are not payable by it. The profession tax dues to
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the extent of Rs.20,000/- are recoverable from the respondent no.5 as
arrears of land revenue. As per the provisions of Sections 11 and 11A of
the Maharashtra State Tax on Professions, Trades, Callings and
Employments Act, 1975, the arrears of profession tax could be recovered
from a defaulter only by adopting the procedure under the Maharashtra
Land Revenue Code, 1966. In the instant case, the Profession Tax
Authorities have not initiated the proceedings against the respondent no.5
and the property of respondent no.5 is sought to be put to sale by the
impugned auction notice by the Sales Tax Officer. Since recovery of
profession tax itself could be made only as per the provisions of the
Maharashtra Land Revenue Code, 1966, the Sales Tax Officer was not
justified in putting the property of the respondent no.5 for sale vide
auction notice dated 5/10/2015. The auction notice is liable to be
quashed and set aside in respect of the property at serial no.5 in the
auction notice, i.e. non-agricultural land bearing Khasra No.148,
admeasuring 7.99 hectares of Mouza Mangrul.
Hence, for the reasons recorded hereinabove and also for the
reasons recorded in the judgment dated 3/8/2016 in Writ Petition
No.669/2016, we allow this writ petition. The impugned auction notice is
quashed and set aside in respect of the property at serial no.5 therein, i.e.
non-agricultural land bearing Khasra No.148, admeasuring 7.99 hectares
of Mouza Mangrul. The said property stands released from attachment.
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Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
khj
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CERTIFICATE
I certify that this judgment uploaded is a true and correct
copy of the original signed judgment.
Uploaded by : Uploaded on :
Kamal H. Jeswani 29/9/2016
Private Secretary
