9911796707
TMI Blog2018 (1) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... d this Writ Petition, praying for issuance of a Writ of Certiorarified Mandamus, to quash the proceedings of the second respondent, culminating in a notice of attachment of immovable property, dated 19.11.2012. 3. To test the correctness of the impugned notice, the following facts would be relevant:- i) The third respondent is registered with the Service Tax Commissionerate, and it is the service provider, who appears to have defaulted in payment of service tax. Consequently, proceedings have been initiated by the respondents 1 & 2 for recovery. However, the fact remains that, the second respondent has not been able to recover any monies from the third respondent, as it appears that, he is a defaulter before various forums and under vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank, who is a secured creditor. In such circumstances, the respondent/Department cannot have any precedence over the secured creditor. 6. It has been so held by the Hon'ble Full Bench of this Court, (in which, I was a party) in the case of Assistant Commissioner (CT) Anna Salai-III Assessment Circle Vs. The Indian Overseas Bank, in W.P.No.2675 of 2011 etc., dated 10.11.2016, wherein, the issue is with regard to the claim of the Sales Tax Department against a property, over which, the secured creditor had first charge. At this juncture, it would be useful to refer to the relevant portion of the decision of the Hon'ble Full Bench, which is extracted as hereunder:- " " " ''a) As to whether the Financial Institution, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority. Explanation. - For the purposes of this section, it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code, 2016, in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower, priority to secured creditors in payment of debt shall be subject to the provisions of that Code.'' 3.There is, thus, no doubt that the rights of a secured creditor to realise secured debts due and payable by sale of assets over which security interest is created, would have priority over all debts and Government dues including revenues, taxes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 8. Therefore, going by the said circular, the property, in question, could not have been attached. Further, from the Settlement Deed, dated 03.01.2012, it is seen that the mother of the third respondent, in whose favour, the property was settled, acted as General Power of Attorney of the defaulter (husband) resided in the said property. Therefore, the property which was put to personal use of the defaulter and his family could not have been proceeded with. 9. Thus, for the above reasons, the impugned proceedings are not sustainable in law. Accordingly, this Writ Petition is allowed and the impugned proceedings are set aside. However, this will not prevent the respondents 1 & 2 to proceed against the defaulter or his other commercial p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
