2019 (11) TMI 1587 - HC - VAT and Sales Tax

Attachment of secured rupee asset available with the Petitioner-Bank - sales tax dues - absence of dates on which relating to sales tax dues the alleged charge was created - priority of charge - HELD THAT - In the instant case in the absence of dates on which relating to sales tax dues the alleged charge was created we dispose of the Petition declaring that the secured asset has to be sold and the buyer purchases the same free from any tax liabilities. Inter se the Petitioner and the Sales Tax Department on the issue of priority of charge the issue could be resolved thereafter. The question of setting aside the attachment by the Sales Tax Department does not arise and indeed the Sales Tax Department would be entitled to attach the property for realizing the tax dues - Petition disposed off.

Summary

Issues:
1. Priority of charge between a secured creditor and the State of Maharashtra under the Maharashtra Value Added Tax Act, 2002.
2. Resolution of the issue of priority of charge between the Petitioner and the Sales Tax Department.
3. Entitlement of the Sales Tax Department to attach property for realizing tax dues.

Analysis:
1. The judgment dealt with the priority of charge between a secured creditor and the State of Maharashtra under the Maharashtra Value Added Tax Act, 2002, in light of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI Act). The court referred to Section 26E of the SARFESI Act and Section 37 of the Maharashtra Value Added Tax Act, 2002. It was held that the secured creditor would have the first lien over sale proceeds realized by selling secured assets, with any surplus to be credited to the State of Maharashtra. The first charge created by the Central Legislation (SARFESI Act) would take precedence over the charge created in favor of the State of Maharashtra under the VAT Act.

2. In the specific case, as there were no dates provided regarding the creation of the alleged charge related to sales tax dues, the court declared that the secured asset should be sold, and the buyer would purchase it free from any tax liabilities. The issue of priority of charge between the Petitioner and the Sales Tax Department was to be resolved subsequently, allowing the Sales Tax Department to attach the property for tax realization. The judgment emphasized that this attachment would not affect the sale of the property secured to the Petitioner.

3. The judgment clarified that the Sales Tax Department was entitled to attach the property for recovering tax dues. However, the attachment did not impact the sale of the property secured to the Petitioner. The court highlighted that the Sales Tax Department's right to attach the property did not conflict with the secured creditor's priority in realizing the proceeds from the sale of the secured assets. The judgment provided a clear directive on the release of funds to the Petitioner in light of the discrepancy in the amount claimed under the SARFESI Act notice.