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TMI Blog2022 (4) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ry would be governed by the provisions of Section 46 of the GVAT Act. In the case on hand, it could be said that the day the assessment order came to be passed determining the liability of the writ applicant under the provisions of the GVAT Act, a charge over the immovable assets of the writ applicant could be said to have been created in favour of the State by operation of law, as envisaged under Section 48 of the GVAT Act - What could be said to have been done as on date is just to make one and all aware that by operation of law, as envisaged under Section 48 of the GVAT Act, there is a charge of the State Government over the immovable properties owned by the writ applicant, as described above. How would all come to know about the same. It is for this reason that an entry is ordinarily made in the revenue records. There is a fine distinction between attachment of property and a charge over the property by operation of law - Application dismissed. - R/SPECIAL CIVIL APPLICATION NO. 5413 of 2022 - - - Dated:- 29-3-2022 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: Mr. Apurva N Mehta (7202) for the Petitioner(s) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the State respondents. 5. Mr. Mehta would submit that the apprehension on the part of the department that in the absence of any charge, the writ applicant may dispose of the land and factory building is absolutely misconceived and not well-founded as Section 48 of the GVAT Act takes care of the situation. We are not impressed with such a submission. 6. At one point of time, Mr. Mehta, the learned counsel, during the course of his submissions, got confused between an attachment of property and charge created over the property. Mr. Mehta would also submit that the action on the part of the respondent No.2 is nothing, but amounts to attachment of the property pending the appeal before the first appellate authority. Mr. Mehta would submit that the same is not permissible in law as there is no provision in the GVAT Act which permits attachment of a property after the final assessment order is passed and the first appeal is pending before the first appellate authority. 7. There appears to be a serious misconception on the part of the writ applicant that its property referred to above has been attached. The argument is that there cannot be any attachment of property since a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marks 1. Shri Radhekrihna Ginning Pressing Pvt. Ltd. at.-Gomta, Ta. Gondal Dir.-1. Dilipbhai Chhaganbhai Sakhiya and others. Pvt. Ltd. R.S.No.252/2 Paiki 1 At.-Gomta, Ta.-Gondal You are instructed to provide that information of the above properties owned by the aforesaid persons/Firm/Company to this office and in case it is found that the above the property is owned by the dealer then make an entry of the charge with respect to the government dues/debts along with the evidence and provide to this office at the earliest. Sd/-illegible State Tax Officer-(3) Unit-94, Gondal. 10. In response to the aforesaid, the Talati-cum-Mantri has mutated an entry in the village form No.2 that the owner of Radhakrishna Ginning and Pressing Private Limited Company Shri Dilipbhai Chhaganbhai Shakhiya has incurred tax liability. In such circumstances, for the purpose of recovering the said amount, the first charge over the property owned by the company shall be that of the Government. 11. The aforesaid charge may be a bit uncomfortable to the writ applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100. Charges.- Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust- property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. 17. The above-mentioned Section clearly indicates the following types of charges : 1) Charges created by act of parties; and 2) Charges arising by operation of law. 18. The words by operation of law are more extensive than the words by law and a charge created by operation of law includes a charge directly created by the provisions of an Act (like Section 48 of the GVAT Act) as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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