9911796707
TMI Blog2019 (8) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... has securitised immovable properties which are subject matter of provisional attachment. Therefore, the question as to whether the immovable properties, which are subject matter of provisional attachment qua impugned orders have already been securitised with third respondent Bank as the creditor, itself is not clear and even if that be so, the question of apportioning the monies realized from the attached properties, if such a scenario unfurls need to be gone into only at that stage. The issue as to the date of securitisation and as to whether it is appropriate to pass impugned orders are the determinants which may govern this apportionment aspect. However, it is not necessary to go into these aspects in this order. Suffice to say that it is clear that there are no fetters on the powers of the Income Tax Department with regard to original attachment. As this is the last point that has been canvassed, this Court finds no infirmity, more so at the instance of a writ petitioner company qua the impugned orders. Therefore, this Court considers that this is not a fit case for interfering with impugned orders. - W.P.Nos.12272 , 12281, 12283 and 12284 of 2019 And W.M.P.Nos.21646 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the impugned orders reveal that immovable properties belonging to an individual one J.Sekhar have been made subject matter of provisional attachment. 7. However, writ petitioner before this Court in these four writ petitions is not that natural person i.e., individual J.Sekhar, but it is a juristic person. In other words, it is a private limited company, which goes by the name J.S.R Infra Developers Pvt. Limited. Therefore, in the previous hearing, a question arose as to the locus based on which the writ petitioner is assailing the impugned orders. Besides this, the sole and pivotal question that falls for consideration in these writ petitions was also projected. Capturing these two aspects of the matter, this Court made proceedings dated 20.06.2019, which reads as follows: 'Subject matter of instant writ petition is an order of attachment qua immovable properties. Legal issue is whether Income Tax Department can attach properties which have already been securitised. Be that as it may, on facts, Revenue Counsel points out that the interest of writ petitioner in the immovable property, which is subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r company,(Personal properties belonging to the directors of the petitioner's company have been mortgaged with the 3rd respondent bank). It is further stated, that the attachment of some of these properties by the 1st respondent/income tax officials, more clearly mentioned in the scheduled provided in the earlier filed affidavits, are the subject matter of challenge in the present writ petitions, as these properties have already been mortgaged with the third respondent bank and security interest has been created as per law.' 10. The crux and gravamen of the first respondent's stand is articulated in Paragraphs 6 of the counter affidavit, which reads as follows: '6. I submit that the details of amount of loan sanctioned, value of the property, the payments made so far and the present outstanding amount and any SARFEASI proceedings are initiated are not stated by the writ petitioner. The first charge in favour of the Bank is not admitted this respondent. Any number of attachments can be made on the properties and the relevance of first charge and subsequent charge comes only at the time of sale. The petitioner cannot su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20.06.2019, this Court considers it appropriate to embark upon the exercise of examining that legal point also as this is a generic legal principle. 13. As would be evident from 20.06.2019 proceedings, which has been extracted and reproduced supra, the legal issue is whether immovable property which has already been securitised can be made subject matter of attachment by the Income Tax Department. To be noted, this is captured with specificity in Paragraph 2 of the aforesaid proceedings dated 20.06.2019. With regard to the aforesaid legal submission, learned counsel for writ petitioner pressed into service a judgment made by a Hon'ble Full Bench judgment of this Court reported in AIR 2017 Mad 67 (FB) [The Assistant Commissioner (CT) Vs. The Indian Overseas Bank and another]. This Court deems it appropriate to extract Paragraphs 1 to 7 of the said order, which read as follows: 'The writ petitions have been listed before the Full Bench in pursuance to the reference order in W.P.No.6267 of 2006 and W.P.No.253 of 2011, in respect of the following issues:- ''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 ..... sales, which may be carried out in pursuance to the rights exercised by the secured creditor having a mortgage of the property. This aspect is also covered by the introduction of Section 31B, as it includes ''secured debts due and payable to them by sale of assets over which security interest is created''. 7.We, thus, answer the aforesaid reference accordingly. ' 14. Learned Revenue counsel points out that order of Hon'ble Full Bench would only mean that attachment by Income Tax Department will be subject to securitisation if properties which have already been securitised are attached and it does not mean that the Income Tax Department does not have the right to order attachment of properties which are already securitised. 15. This Court, considering the order of the Hon'ble Full Bench of this Court, has no difficulty in accepting the submission made by learned Revenue Counsel that it is clear that order of Hon'ble Full Bench does not place any fetters on the rights of the Income Tax Department to attach a property which has already been securitised if the Income Tax Department chooses to attach a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
