2022 (4) TMI 4 - HC - VAT and Sales Tax

Reassessment order - attachment of movable and immovable properties of the petitioner - Section 26E of the SARFAESI Act - HELD THAT - On perusal of the material on record and particularly, the order passed by the Trial Court and the Trial Court came to the conclusion that memo deserves to be dismissed for the reason that the present recovery application is filed for recovery of arrears of tax from the respondent. According to the applicant, it is the respondent who is liable to pay arrears of tax. When such is the case, it is not necessary to issue notice to the said bank. The very proviso which brought to the notice of this Court Section 26E of the SARFAESI Act which is clear that notwithstanding anything contained in any other law for the time being in force, after the registration of security interest, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority. This proviso is not brought to the notice of the Trial Court while arguing the matter. In the case on hand, there is no dispute with regard to the fact that already there was a charge in favour of the bank. The Trial Court also in the order mentioned that no doubt, the respondent has said that charge over the movable and immovable properties of the respondent has been created in favour of the bank but comes to the conclusion that when this Court is proceeding as per Section 421 of Cr.P.C, the grounds urged by the respondent are not acceptable to issue notice to the said bank - it is appropriate to set aside the order passed by the Trial Court and issue notice to the bank as sought in terms of the memo and Trial Court proceed in the matter in accordance with law. The revision petition is allowed.

Summary

Issues:
1. Disputed tax payment and recovery proceedings.
2. Priority of secured creditors under Section 26E of the SARFAESI Act.
3. Necessity of issuing notice to the bank regarding attachment of properties.

Analysis:
1. The petitioner, a private limited company dealing in iron ore, filed returns claiming exemptions under the Karnataka Value Added Tax Rules. The audit authority found discrepancies in the books of accounts, leading to a reassessment order under Section 39(1) of the KVAT Act. Subsequently, a demand notice was issued, and recovery proceedings were initiated for the disputed tax. The petitioner contended that the business was closed and raised objections, which were dismissed by the Special Court. The petitioner filed a revision petition challenging the dismissal and sought notice to the bank as a necessary party before attaching any properties.

2. The petitioner relied on Section 26E of the SARFAESI Act, emphasizing the priority of secured creditors in payment of debts over other obligations. The proviso clarifies that debts due to secured creditors take precedence over revenues, taxes, and other payments to government authorities. The petitioner argued that the bank, holding a charge over the petitioner's assets, should be notified before any attachment proceedings.

3. The High Court considered the arguments presented and reviewed the Trial Court's decision. It was noted that the Trial Court did not consider the proviso of Section 26E of the SARFAESI Act, which prioritizes secured creditors' claims. Given the existing charge in favor of the bank, the High Court concluded that notice to the bank was necessary in accordance with the law. The Trial Court's order was set aside, and the bank was directed to be served notice as requested in the petitioner's memo for further proceedings.

In conclusion, the High Court allowed the revision petition, overturned the Trial Court's decision, and directed the Trial Court to proceed with the matter by issuing notice to the bank as per the petitioner's request.