2019 (5) TMI 889 - HC - Income Tax

Priority of claim after attachment orders u/s 281 - mortgagee right of recovery vs Income tax dept right of recovery - property sold after attachment orders - Sub-Registrars refusing to register the sale deeds, in view of the orders of attachment passed by the 2nd respondent Tax Recovery Officer (TRO) - properties which belong only to third party guarantors, which do not form part of the proceedings before the NCLT under I B Code - claim of the TRO is that the very creation of the mortgage, during the pendency of the assessment proceedings, is null and void u/s 281 of the Income Tax Act, 1961 - HELD THAT - The properties which the petitioner bank has sold under the Securitization Act, are that of third party guarantors. If the petitioner bank has sold or attempting to sell the properties of the 5th respondent company, then what the learned Senior Standing Counsel for the Income Tax Department contends may be right. The properties of a company ordered to be wound up under the provisions of the Insolvency and Bankruptcy Code, 2016, cannot be brought to sale by the bank under the Securitization Act. But when the properties sought to be sold are that of third party guarantors, the said impediment cannot stand in the way of the bank. The action of the Sub-Registrars, who are respondents 6 to 10, in refusing to register the sale deeds, in view of the orders of attachment passed by the 2nd respondent Tax Recovery Officer, is not in accordance with law. The properties which belong only to third party guarantors, which do not form part of the proceedings before the National Company Law Tribunal, can always be sold by the bank and the attachment orders which are issued by the 2nd respondent after creation of mortgage cannot bind. Hence, the Writ Petition is disposed of, directing respondents 6 to 10 to proceed with the registration of the properties of third party guarantors sold by the bank outside the purview of the Insolvency and Bankruptcy Code, 2016.

Summary

Issues:
Challenge to orders of attachment by Tax Recovery Officer and Enforcement Directorate on properties forming security interest, Priority of charge between petitioner bank and Tax Recovery Officer, Jurisdiction of National Company Law Tribunal versus Securitization Act in property sales.

Analysis:
1) The State Bank of India filed a writ petition challenging attachment orders by Tax Recovery Officer and Enforcement Directorate on properties forming security interest. The loan accounts of the borrower company became non-performing assets, leading to initiation of measures under the Securitization Act.

2) The petitioner bank sought relief against attachment orders, with legal counsels representing all parties presenting arguments before the court. The borrower company initiated Corporate Insolvency Resolution Process, resulting in a liquidation order by the National Company Law Tribunal.

3) The petitioner bank's mortgage was created before the Tax Recovery Officer's attachment orders, invoking Section 281 of the Income Tax Act for priority. However, a previous judgment clarified that transactions during assessment proceedings do not automatically become void under Section 281.

4) The Income Tax Department argued that questions of priority should be raised before the Official Liquidator under the Insolvency and Bankruptcy Code, as the Code's provisions may take precedence. However, the court differentiated between properties of the borrower company and third-party guarantors in terms of sale under the Securitization Act.

5) The court held that properties of third-party guarantors, not part of the insolvency proceedings, can be sold by the bank despite attachment orders by the Tax Recovery Officer. The Sub-Registrars were directed to register the sale deeds of third-party guarantors' properties outside the Insolvency and Bankruptcy Code's purview, dismissing any pending miscellaneous petitions in the writ petition.