Nishant Sahakari Gramin Pat ... vs State Of Maha. Dept. Of Finance And ...
2017 Latest Caselaw 282 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                   WRIT PETITION No.3928 OF 2009


        Nishant Sahakari Gramin Pat Purawatha
        Sanstha Maryadit, Akola, [Regd. No.
        AKL [AKL]/PSR/CR/123/91-92 by its
        General Manager, Subhash Mahadeorao
        Tale, Adult, Service, having Office 
        of the Sanstha at 3rd Floor, Nishant
        Tower, M.G. Road, at Post, Tq. And
        Distt. Akola.                                                              :      PETITIONER

                          ...VERSUS...

        1.    State of Maharashtra,
               Department of Finance and Sales
               Tax and Value Added Tax,
               Through its Secretary,
               Mantralaya, Mumbai-32.

        2.    Asstt. Commissioner of Sales Tax,
               And Authority under the Value
               Added Tax, Acting as Authority
               under M.L.R. Code,
               No. AKO-VAT-D-001- Akola,
               Amravati Division, having
               Office at Akola, Tq. And Distt. Akola.                               :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.S. Kilor, Advocate for the Petitioner.
        Shri A.S. Fulzele, Addl. Government Pleader for the Respondents.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                              CORAM  :   SMT. VASANTI   A.  NAIK   AND
                                                         V.M.DESHPANDE, JJ.

                                              DATE      :   1 st
                                                                  MARCH, 2017.





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ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)

By this writ petition, the petitioner seeks a declaration that

the petitioner would have a prior claim and statutory charge on the

immovable property of Kamalkishor Baheti, bearing Nazul Plot Nos.100

and 101, in Sheet No.90, Akola over the claim of the respondent No.2-

Assistant Commissioner of Sales-Tax.

According to the petitioner co-operative Bank, four members

of Baheti family had secured a loan from the petitioner to the extent of

Rs.40/- lakhs. It is stated that since the members of the Baheti family

had defaulted in payment of the loan a certificate under Section 101 of

the Maharashtra Co-operative Societies Act was issued in favour of the

petitioner-society on 8.8.2008. It is stated that Kamalkishor Baheti, one

of the debtors was the owner of Baheti Automobiles in Nazul Plot No.100

and 101 of Sheet No.90, Akola and on 8.8.2008, the respondent No.2

Assistant Commissioner of Sales-Tax attached the said property and

allegedly held a first charge over the same. According to the petitioner,

the petitioner-society would have a first charge over the property of Shri

Kamalkishor Baheti in view of the provisions of Maharashtra Co-

operative Societies Act. The aforesaid declaration is sought by the

petitioner in the set of facts narrated herein above.

Shri A.S. Fulzele, the learned Additional Government Pleader

appearing for the respondents states that the petition is liable to be

J-wp3928.09.odt 3/4

dismissed as the issue involved in this writ petition is answered against

the petitioner by the judgment of this Court as also the Hon'ble Supreme

Court. The learned Additional Government Pleader relied on the

judgment of this Court, dated 17th November, 2011 in Writ Petition

No.9070/2011 to substantiate his submission that the sales tax dues

constitute a first charge over the property. It is submitted that since the

issue stands answered against the petitioner, the petition is liable to be

dismissed.

Shri A.S. Kilor, the learned counsel for the petitioner does not

dispute the position of law as laid down by this Court in the judgment

dated 17th November, 2011. It is submitted that an appropriate order

may be passed in the circumstances of the case.

On a reading of the judgment referred to herein above, it is

apparent that this Court has after relying on the judgment rendered by

the Hon'ble Supreme Court held that the sales tax dues constitute a first

charge over the property by virtue of the provisions of Section 38(C) of

the Bombay Sales Tax Act. The question involved in this writ petition

stands answered against the petitioner by the judgment of the Hon'ble

Supreme Court and the judgment of this Court, referred to herein above.

In view of the aforesaid, the relief sought by the petitioner cannot be

granted.

Hence, for the reasons recorded herein above and also for the

J-wp3928.09.odt 4/4

reasons recorded in the judgment dated 17 th November, 2011 in Writ

Petition No.9070/2011, the writ petition is dismissed with no order as to

costs.

                                                       JUDGE                                            JUDGE



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