2009 (6) TMI 931 - HC - VAT and Sales Tax

Auction notice challenged - Whether the respondents having first charge over the property, have the right to sell the property? Held that - In the present case, it will be evident that the assessee (dealer M/s. Jay Flash Ceramics Ltd.) mortgaged the land in question in favour of Indian Bank on August 1, 1990. After promulgation of NPA Act, the bank being the secured creditor and mortgaged property being a secured debt, the bank had right to auction sell the property. The assessee (dealer M/s. Jay Flash Ceramics) becomes eligible for interest-free sales tax on July 5, 1993, i.e., much after the property was mortgaged. Sales tax deferment agreement was reached on September 1, 1993 and April 22, 1996, i.e., much after the properties in question were mortgaged in favour of the bank. In that view of the matter also, the State cannot claim first charge over the property in question nor can it claim any priority over the debts due to the bank. Thus the respondents had no jurisdiction to auction sell the property in question and the impugned auction notice dated February 5, 2007 issued for auction sale of the property, which was mortgaged with the Bank and which has already been auction sold in favour of one K.O.P. Enterprises and subsequently purchased by the petitioner, is fit to be set aside. W.P. allowed.

Issues Involved:
1. Validity of the auction notice for the sale of the land.
2. Priority of State's claim for tax dues over secured debts.
3. Legal implications of the mortgage and subsequent sales.

Detailed Analysis:

1. Validity of the Auction Notice for the Sale of the Land:
The petitioner challenged the auction notice dated February 5, 2007, issued by the respondent for the auction sale of the land. The petitioner argued that the land had already been sold and transferred to him. The respondents contended that they had the first charge over the property, granting them the right to sell it.

The court noted that the land in question was initially mortgaged by Jay Flash Ceramics Ltd. to Indian Bank in 1990. The bank, after obtaining a decree from the Debts Recovery Tribunal (DRT) in 2004, auctioned the property in 2005, and it was sold to K.O.P. Enterprises. The petitioner later purchased the land from K.O.P. Enterprises in 2007.

The court concluded that the respondents had no jurisdiction to auction sell the property, which had already been mortgaged and sold. The auction notice dated February 5, 2007, was set aside, and the writ petition was allowed.

2. Priority of State's Claim for Tax Dues Over Secured Debts:
The core issue was whether the State's claim for sales tax arrears had priority over the secured debts of the bank. The respondents argued that under Section 24 of the GST Act, their claim had priority over all other claims against the property.

The court referred to several Supreme Court judgments, including Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and Central Bank of India v. State of Kerala, which established that the State's tax dues can claim priority over unsecured debts but not over secured debts unless explicitly stated by statute.

The court noted that Section 24 of the GST Act did not explicitly create a first charge over the property. Therefore, the State's claim did not have priority over the secured debt of the bank.

3. Legal Implications of the Mortgage and Subsequent Sales:
Jay Flash Ceramics Ltd. mortgaged the land to Indian Bank in 1990. The company later became eligible for sales tax deferral in 1993, after the mortgage. The bank, as a secured creditor, had the right to auction the property under the NPA Act.

The court observed that the sales tax deferral agreement and the subsequent tax dues accrued after the property was mortgaged. Therefore, the State could not claim a first charge over the property, which was already a secured debt in favor of the bank.

The court concluded that the bank's secured debt had priority over the State's claim for sales tax arrears. Consequently, the auction sale conducted by the bank and the subsequent sale to the petitioner were valid.

Conclusion:
The court held that the respondents had no jurisdiction to auction the property, which had already been sold by the bank to K.O.P. Enterprises and subsequently to the petitioner. The State's claim for sales tax arrears did not have priority over the secured debt of the bank. The auction notice dated February 5, 2007, was set aside, and the writ petition was allowed without any order as to costs.

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