Indian Overseas Bank Thr Its ... vs Deputy Commissioner Of State Tax ...
2023 Latest Caselaw 9949 Bom

                                                                                                  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.

SEPTEMBER 26, 2023 Aswale

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.

SEPTEMBER 26, 2023 Aswale

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.

SEPTEMBER 26, 2023 Aswale

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 ].

SEPTEMBER 26, 2023 Aswale