The petitioner seeks the issue of a writ of Certiorari to quash the proceedings dated 18.7.2008 in ROC-2192/99 A3 from the Commercial Tax Officer, Madurai, in respect of the tax dues from a defaulter for the period 1993-1994 to 1997-1998.
2. It is seen that in respect of the tax arrears of a defaulter assessee, the respondent herein issued notice in Form IV on 26.8.1999 under the Revenue Recovery Act and attached the property of the assessee. The attachment was published in the District Gazette on 8.12.2000 and notice as to bring the property for sale was published in the newspaper on 4.3.2001. placing reliance on the decision reported in [1999] 115 STC 545 (E.T. & T.D. Corpn. Ltd. Vs. State of Rajasthan) that the State Government's dues have the first charge over any other arrears, the respondent issued notice to the petitioner in Form B6 and called upon the petitioner to remit within fifteen days the amount realised by the Bank towards its dues by auction sale of the said property given as security along with interest at 2% per month in terms of Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959. Since there was no response from the petitioner Bank, a reminder was sent on 10.3.2008. On 24.3.2008, the petitioner Bank replied contending that the property in 228-C, Chinnakadai Street, Madurai, was mortgaged by one Somalingam, the proprietor of Ashok Jewels, as early as 29.10.1993. Since there was default on the part of the borrower, the petitioner filed a suit before the Debts Recovery Tribunal and in execution of the decree obtained, the mortgaged property was sold in auction sale and the auction sale was confirmed by a registered certificate dated 20.11.2006. Since the auction purchaser was a bona fide purchaser for value entitled to protection under
Section 41 of the Transfer of Property Act, the sale could not be questioned even otherwise. It was pointed out that the mortgage fetched a sum of Rs.14,30,000/- (Rupees fourteen lakhs and thirty thousand only) only as against the recovery certificate issued by the Debts Recovery Tribunal to the tune of Rs.47,37,929/- (Rupees forty seven lakhs thirty seven thousand nine hundred and twenty nine only). The petitioner further contended that Section 24 of the Tamil Nadu General Sales Tax Act provided for a charge on the asset of the defaulting assessee and does not provide for the charge on sale proceeds. Hence, the sale proceeds could not be traced for recovery.
3. The petitioner also contended that the decision reported in [1999] 115 STC 545 (E.T. & T.D. Corpn. Ltd. Vs. State of Rajasthan) relied on by the respondent, related to the case of transferee (auction purchaser) purchasing not only the assets but also the entire business of the defaulter on "as is where is" basis. The respondent, however, replied on 7.5.2008 and supported their action in terms of Section 26 of the Act. This was replied on 6.6.2008 by the petitioner that Section 26 of the Tamil Nadu General Sales Tax Act or Section 45 of the Tamilnadu Value Added Tax Act, 2006, have no application and resisted the action of the respondent.
4. Since the respondent rejected the claim of the petitioner, the present writ petition is filed before this Court contending that the mortgage in favour of the petitioner is much prior to the demand raised. Hence, the question of the petitioner's charge being defeated by reason of Section 24 of the Act does not arise. In this connection, learned counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court reported in 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others) that the priority of the charge available to the State cannot supersede the commercial transactions under which the property had already been subjected to charge in favour of the Bank.
5. In the above circumstances, learned counsel for the petitioner seeks the issue of a writ of Certiorari to quash the order dated 18.7.2008.
6. On notice, the respondent has filed a counter affidavit wherein, they have given the details as to the date of assessment and the demand made on the defaulter assessee. Placing reliance on Section 24(1) and (2) of the Tamil Nadu General Sales Tax Act and on the decisions in:
(i) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others reported in (1995) 96 STC 612 (SC);
(ii) Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others reported in 2000 (IV) CTC 170 = [2000] 120 STC 610 (SC);
(iii) Central Bank of India Vs. State of Tamil Nadu reported in 113 STC 145 (Mds) and
(iv) Thane Janata Bahakari Bank Ltd. Vs. Commissioner of Sales Tax and others reported in (2006) 148 STC 32 (Bom.), the respondent contended that the State has the preferential right over that of the petitioner Bank; consequently, the contention of the petitioner has to be rejected.
7. Heard counsel for either side and perused the records .
8. It is stated that one N.Somalingam, Proprietor of Ashok Jewel Exports, availed a loan facility from the petitioner Bank for which he deposited the title deeds of his property as security. This was done as early as 29.10.1993. However, the said borrower defaulted in payment of the loan account. This led to the petitioner proceeding against the defaulter before the Debts Recovery Tribunal. A Debt Recovery Certificate was granted as early as 24.7.2003. The property was brought for auction on 20.10.2006. A sale certificate was issued on 20.11.2006 in favour of one R.Paul Pandi who offered and paid the highest bid at Rs.14,30,000/-.
9. It is stated that the respondent sent a notice on 19.2.2008 and called upon the petitioner to remit the sale proceeds on the ground that the mortgagor Somalingam, Proprietor, Ashok Jewel Exports, was a tax defaulter as regards the liability relatable to the assessment period 1993-94 to 1997-98 to the tune of Rs.72,590/-.
10. This was followed by yet another reminder on 19.3.2008. The petitioner replied in his letter dated 24.3.2008 that the mortgage with the Bank was as early as 29.10.1993. On account of the default committed by the borrower, the petitioner approached the Debts Recovery Tribunal and in due execution of the decree of the Tribunal, the mortgaged property was sold in public auction in favour of one Paul Pandi. The same was confirmed by issuing a sale certificate. The petitioner referred to the decision reported in [1999] 115 STC 545 (E.T. & T.D. Corpn. Ltd. Vs. State of Rajasthan) and submitted that the said decision does not contemplate tracing the sale proceeds for recovery, as Section 24 of the Tamil Nadu General Sales Tax Act provided for a charge only on the asset of the defaulting assessee. It is also pointed out that the above decision related to a case of auction purchaser purchasing not only the assets but also the entire business of the defaulter on "as is where is" basis; hence, distinguishable. Thereafterwards, the respondent sent a letter that the respondent was not aware of the liabilities to be discharged by the defaulter; hence, notice was not given to the petitioner herein. However, it was published in the Madurai District Gazette dated 8.12.2000, apart from the advertisement in the local newspaper on 4.3.2001. A reference was sent in the respondent's office proceedings dated 25.8.1999 to create an encumbrance of the suit property and the same was entered by the Sub Registrar, Madurai. Quoting Section 26 of the Tamil Nadu General Sales Tax Act, the respondent sought for remitting the sale proceeds. This was once again reiterated in the notice dated 18.7.2008. The above-said facts clearly show that admittedly, the mortgage in favour of the Bank was created much prior to the date of the assessment year 1993-94 to 1997-98 for which the demand was raised on the defaulter assessee. The extract of the register maintained by the petitioner shows that the borrower had deposited the title deed with the petitioner with an intention to create equitable mortgage on the property and for securing loans, and the title deeds had been handed over to the petitioner herein as early as 29.10.1993. The demand raised by the respondent, as given in the counter affidavit, is as follows: Asst. year Date of issue of notice Date of issue of Order Arrears & Date of service & Date of service 1993-94 17.02.1999 21.07.1999 Tax Rs.51,842-
17.02.1999 26.07.1999 Penalty Rs.77,763-
Total Rs.1,29,605-
1994-95 18.02.1999 21.07.1999 Tax Rs.3,75,759-
18.02.1999 26.07.1999 Penalty Rs.5,63,639-
Total Rs.9,39,498-
1995-96 19.02.1999 21.07.1999 Tax Rs.13,47,582-
23.02.1999 26.07.1999 Penalty Rs.20,21,373-
Total Rs.33,68,955-
Keeping this in the background, the decision reported in 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others) needs to be seen.
11. In the said case, Dena Bank was the appellant before the Apex Court.
It filed a suit for recovery of the defaulted sum from a partnership concern and its partners on the basis of a mortgage by deposit of title deeds made as early as 24.4.1969. During the pendency of the suit, the State of Karnataka tried to attach and sell the mortgaged property for recovery of sales tax arrears due and payable by the partnership firm. The arrears related to the period 1957-58 and 1966-67 to 1969-70 under the State Act and 1958-59 to 1964-65, and 1967-68 to 1969-70 under the Central Act. It is stated that in the sale organised by the State, the State of Karnataka itself purchased the property in auction. On a prayer from the Bank, the State was impleaded as a party in the suit. The trial Court decreed the suit filed by the Bank and held that the charge created in the property by mortgage in favour of the Bank was held proved. Hence, the trial Court took the view that the State could not attach and sell the property belonging to the partners for recovery of the sales tax dues against the firm. However, the suit was directed to be dismissed on the ground that the authority of the Manager and the power of attorney holder to sign and verify the plaint and institute the suit was not proved. The petitioner preferred an appeal. During the pendency of the same, the Bank entered into a compromise with the borrowers and the same was recorded by the Court. As the State was not a party to the compromise, the appeal as regards the rights of the State was contested by the bank. The High Court repelled the contention of the Bank as to the Bank's right over the State's priority. However, it recorded a compromise as regards the other properties and accepted the stand of the State as to its preferential claim to recover the sales tax dues by sale of the suit properties. Consequently, the High Court held that the Bank had to first settle the claim of the State from the amount recovered in the execution proceedings and thereafter the Bank was entitled to adjust the remaining amount towards the debt decreed . The Bank preferred an appeal before the Apex Court. Two questions arose for consideration before the Apex Court, namely, whether the State's claim for the recovery of sales tax dues shall have precedence over the right of the Bank to proceed against the property of the borrowers; secondly, whether the property belonging to the partners can be proceeded against for recovery of dues on account of sales tax of the partnership firm under the provisions of the Karnataka Sales Tax Act, 1957.
12. Dealing with the Crown's priority for the arrears due to the State towards the tax liability, the Apex Court pointed out that the principle of priority of the Government itself is founded on the rule of necessity and of public policy. In paragraph 10 of the judgment, the Apex Court pointed out " the Crown's preferential right for recovery of debts over other creditors is confined to ordinary or unsecured creditors". The Apex Court pointed out that the common law doctrine of the priority of the crown debts would not extend to providing preference to the Crown debts over the secured private debts. Referring to the provisions of the Karnataka Land Revenue Act, 1964 as well as Section 13 of the Karnataka Sales Tax Act, 1957 and the decision reported in AIR 1979 SC 1588 (CST Vs. Radhakrishnan), the Apex Court pointed out that the day on which the State of Karnataka proceeded to attach and sell the property of the partners of the firm mortgaged with the Bank, it could not have appropriated the sale proceeds to sales tax arrears payable by the firm, defeating the Bank's security. However on the facts of the case, the Apex Court further pointed out the Bank could not be allowed any relief; that Section 15(2A) of the Karnataka Sales Tax Act relating to the joint and several liability of the partners came into force on 18.12.1983, while the decree in favour of the Bank was passed on 3.8.1992 and was yet to be executed. Consequently, the Apex Court held that the claim of the Bank was still outstanding and even if the sale was to be set aside, it would only revive the arrears of sales tax to add on further interest to this. In the light of the amended provisions of Section 15(2-A) of the Karnataka Sales Tax Act, effective from 18.12.1983, the Apex Court held that the State will have a preferential right to recover its dues over the rights of the Bank. Applying the said decision to the facts herein, as already pointed out, the State dues arose only in the year 1999, whereas the mortgage created in favour of the Bank was well before the demand was raised by the respondent on the assessee. In the circumstances, the decision of the Supreme Court has relevance herein to the facts that the mortgage in favour of the petitioner created well before the liability arose will supersede the claim of the respondent.
13. The respondent relied on the decisions reported in [1995] 96 STC 612 (SC) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others), 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others), 113 STC 145 (Mds) (Central Bank of India Vs. State of Tamil Nadu) and (2006) 148 STC 32 (Bom.) (Thane Janata Bahakari Bank Ltd. Vs. Commissioner of Sales Tax and others), in support of their contention that the demand for the deposit of the sale proceeds towards sales tax arrears is in accordance with the settled law.
14. A perusal of the decision reported in [1995] 96 STC 612 (SC) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others) shows that the same related to Section 11-AAAA of the Rajasthan Sales Tax Act 1954. The creditor Bank filed a suit for recovery of the amount payable by the defaulter and for the realisation of the same, asked for enforcement of the mortgage security under Order 34 Rule 4 of C.P.C. In the course of the suit proceedings, the Commercial Tax Officer, Bharatpur, got himself impleaded therein contending that the State had a prior claim for recovery of the sales tax dues; hence, entitled to realise the same by sale of the mortgaged property. In this, the Commercial Tax Officer placed reliance on the provisions of Section 11-AAAA of the Rajasthan Sales Tax Act which was introduced by way of an amendment in 1989. Going by the provisions of Section 11-AAAA of the Rajasthan Sales Tax Act that notwithstanding anything contained in any law for the time being in force, any amount of tax, penalty, interest and any sum payable by a dealer under the Act shall be the first charge on the property of the dealer, the Apex Court, following the decision in Dattathreya Sankar Mote and others Vs. Anand Chinthaman Datar and others (1974) 2 SCC 799), held that when a first charge is created by operation of law over any property, that charge will have precedence over an existing mortgage. In the case of the decision reported in 113 STC 145 (Mds) (Central Bank of India Vs. State of Tamil Nadu), this Court considered the provisions of the Tamil Nadu Act, wherein, the Bank sought for a writ of Mandamus to forbear the State from bringing the property of the defaulter company under the Tamil Nadu Revenue Recovery Act for recovery of sales tax dues. As far as the facts therein are concerned, the Commercial Tax Officer issued notice to the Bank informing them as regards the arrears of the sales tax for the Assessment Year 1983-84 for which revenue recovery proceedings were taken by issuing a notice in Form V and in Form VII dated 17.4.1989.
15. As far as the borrowing by the defaulter is concerned, the Bank extended credit facilities in April, 1983 and equitable mortgage was created thereafterwards by deposit of title deeds in February, 1984. This Court referred to the decision of the Supreme Court reported in [1995] 96 STC 612 (SC) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others) and held that in the wake of the decisions of the Supreme Court, it was no longer open to the Bank to contend that the amendment had not achieved a purpose on Crown priority. This Court further held that Section 24(2) and 26(6), as amended by Tamil Nadu Act 78 of 1986, sufficiently safeguarded the interest of the State to enforce the recovery of the dues as a first charge holder in supersession of the claims of an existing mortgagee. This Court negatived the plea of unconstitutionality of the said provision and further held that the fact as to whether a particular claim satisfied the legal requirements necessary to treat the same as a secured creditor would depend upon the nature of documents. In the absence of any material to adjudicate on the same, it was for the Bank to get adjudicated on this issue.
16. As regards the decision reported in [2006] 148 STC 32 (Bom.) (Thane Janata Bahakari Bank Ltd. Vs. Commissioner of Sales Tax and others), it is seen that the decision of the Bombay High Court related to the claim of the Bank pursuant to the proceedings taken under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Act 54 of 2002) (hereinafter referred to as "the Securitisation Act"). The sales tax dues of the defaulter company related to the period 1995-96 and 1999-2000. The company mortgaged its land and building in equitable mortgage in favour of the Bank on 18.2.1997. The provisions of Section 38-C of the Bombay Sales Tax Act, 1959 also creates a first charge on the property of the dealer as regards any amount of tax penalty or interest or any other sum due and payable by a dealer. The question raised before the Court was whether Section 35 of the Securitisation Act was inconsistent with the Bombay Sales Tax Act, 1959 and consequently overrides the said provisions by reason of a non-obstante clause in the Securitisation Act. The Bombay High Court took the view that there being no provision under the Securitisation Act providing for first charge in favour of the Bank, Section 35 of the Securitisation Act cannot be held to override Section 38-C of the Bombay Sales Tax Act, 1959 which specifically provides for a first charge. Referring to the decision of the Apex Court reported in [1995] 96 STC 612 (SC) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others), the Bombay High Court held that by virtue of Section 38-C of the Bombay Sales Tax Act and Section 169 of the Maharashtra Land Revenue Code, there was no manner of doubt that the recovery of sales tax dues has priority over the secured creditors. The Bombay High Court held that there was no inconsistency between the Section 38-C of the Bombay Sales Tax Act, 1959 and Section 35 of the Securitisation Act. It was also pointed out that even before the Bank initiated its proceedings, the Sales Tax Authorities had already attached the properties who had first charge as per Section 38-C of the Bombay Sales Tax Act, 1959.
17. As far as the Tamil Nadu General Sales Act, 1959 is concerned, Section 24(2) reads as follows:
" Section 24: Payment and recovery of tax.--
(1) ........
(2) Any tax assessed on or has become payable by, or any other amount due under this Act from a dealer or person and any fee due from him under this Act, shall, subject to the claim of the Government in respect of land revenue and the claim of the Land Development Bank in regard to the property mortgaged to it under Section 28(2) of the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act X of 1934), have priority over all other claims against the property of the said dealer or person and the same may without prejudice to any other mode of collection be recovered, --
(a) as land revenue, or
(b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him:
Provided that no proceedings for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax, other amount or fee, as the case may be, complied with an order by any of the authorities to whom the dealer or person has appealed or applied for revision, under Sections 31, 31-A, 33, 35, 36, 37 or 38. "
18. The above-said Section stands in contrast to the Rajasthan enactment and the Bombay Sales Tax Act. As already seen, the decision of this Court reported in 113 STC 145 (Mds) (Central Bank of India Vs. State of Tamil Nadu) left the question open as regards the right of the Bank, as is evident from paragraph 15 of ther decisison therein . The decision of the Apex Court reported in [1995] 96 STC 612 (SC) State Bank of Bikaner & Jaipur Vs. National Iron and Steel Rolling Corporation and others) is on a provision which is totally different from the Tamil Nadu Act. Section 11AAAA of the Rajasthan Sales Tax Act, 1954, reads as follows:
" Section 11-AAAA. Liability under this Act to be the first charge - Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax, penalty, interest and any other sum, if any, payable by a dealer or any other person under this Act, shall be the first charge on the property of the dealer, or such person." (emphasis supplied) The decision of the Bombay High court rested on the provisions of the Bombay Act which is also on the same line as the Rajasthan Act. The rights of the State under the Tamil Nadu Act, hence, has to be seen in the context of the statutory provision. All that the provision contemplates is that tax assessed on or has become payable by, or any other amount due under this Act from a dealer or person and any fee due from him under the Act, shall be subject to the claim of the Government in respect of land revenue and the claim of the Land Development Bank in regard to the property mortgaged to it under Section 28(2) of the Tamil Nadu Co-operative Land Development Banks Act, 1934 (Tamil Nadu Act X of 1934), and it will have priority over all other claims against the property of the said dealer or person to be recovered as land revenue. By so holding, the provision, by itself, does not create the first charge as in the other enactments and the claim of the State has to subserve the claim of the secured creditor, who, by the anterior charge created in his favour, has the first claim over even the State claim.
19. When the liability in favour of the Bank is well before the demand under the Tamil Nadu General Sales Tax Act fructified, the decision relied on by the respondent reported in 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others) is distinguishable and have no relevance to the facts herein. On the admitted fact position as regards the date of the passing of the assessment orders as stated in the counter in paragraph 4, I have no hesitation in accepting the plea of the petitioner.
20. It may be noted that in the decision reported in 2005 (I) CTC 758 (ICICI Bank Ltd. (formerly Bank of Madura Ltd.) Vs. Official Liquidator, Liquidator of Vibrant Investments and Properties Ltd. (in liquidation), following the decision reported in 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others), a Division Bench of this Court held that the Income Tax Department cannot claim priority over debts due to secured creditors. Respectfully following the same and the decision of the Apex Court relied on by the Division Bench of this Court in the decision reported in 2000 (IV) CTC 170 = 120 STC 610 (Dena Bank Vs. Bhikhabhai Prabhudas Parkesh and Co. and others), I have no hestitation in allowing the writ petition and thereby quashing the order impugned.
21. The provisions of the Tamil Nadu Act cannot stand the comparison of the Rajasthan Act or the Bombay Act to have the decisions of the Supreme Court applied in favour of the respondent's claim. In the light of the above-said facts, I have no hesitation in accepting the plea of the petitioner.
22. Having regard to the factual aspects, the petitioner's claim, hence, merits to be accepted. Consequently, the writ petition is allowed, thereby the impugned proceedings are quashed. Connected Miscellaneous Petition is closed. No costs.
rsb/ksv To:
The Commercial Tax Officer South Avani Moola Veethi Circle C.T.O. Complex, Madurai.