2018 (9) TMI 481 - HC - VAT and Sales Tax

Attachment of property - Encumbrance has been created on the property owned by the petitioner - validity of assessment orders passed by the first respondent dated 21.11.2016 for the years 2010- 11 and 2011-12. Held that - It is not in dispute that the first respondent addressed to the Customs Department and the Income Tax Department. However, he has not received any reply. This is so because the correct officers have not been addressed - The official, who is present in court, expresses his apprehension that in the event the proceedings culminated in an order levying tax, the Department will not be in a position to recover the same. When the assessment orders have been set aside and when the matters have been remanded for de novo consideration, the attachment cannot continue. Petition allowed.

Summary

Issues: Challenge to encumbrance on property, pending assessment orders, communication with relevant departments, lifting of attachment, cooperation of concerned departments.

Challenge to Encumbrance on Property:
The petitioner challenged an encumbrance created on their property by the first respondent. The petitioner argued that the market value of the property was less than the encumbrance amount. Previously, the petitioner had filed writ petitions challenging assessment orders, which were allowed, setting aside the assessment orders and remanding the matters for further inquiry. The court directed the first respondent to conduct necessary enquiries with the Customs Department, Income Tax Department, and concerned banks before proceeding with fresh show cause notices.

Pending Assessment Orders:
The petitioner contended that the matter was still pending before the first respondent even after a year. The petitioner made a representation seeking withdrawal of the encumbrance due to inability to raise loans against the property. The petitioner denied involvement in alleged transactions and stated that verifications by the Income Tax Department showed nothing adverse against them.

Communication with Relevant Departments:
The court impleaded respondents from the Customs Department and Income Tax Department. The standing counsels for these departments informed the court that the appropriate officers' names and designations had been provided to the first respondent. However, there was a lack of specific instructions from the standing counsels. It was highlighted that the assessment orders had been set aside a year ago, and the attachment could not continue.

Lifting of Attachment:
The court allowed the writ petition, setting aside the impugned order and directing the first respondent to lift the attachment on the property. The petitioner was required to file an affidavit undertaking not to alienate the property until the proceedings concluded. The Customs Department and Income Tax Department were instructed to furnish necessary details within eight weeks to assist the first respondent in proceeding further based on the directions issued in the previous order.

Cooperation of Concerned Departments:
To protect the revenue's interest, the court passed appropriate orders for the first respondent to lift the attachment and for the concerned departments to cooperate by sharing information and holding discussions. The first respondent was directed to proceed further based on the material provided by the departments. No costs were awarded, and the connected Writ Miscellaneous Petition was closed.