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TMI Blog2023 (7) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the orders of attachment having been passed by the Income-Tax Department / Commercial Taxes Department. These writ petitions are thus liable to be allowed - The proceedings for attachment of the properties in the respective writ petitions stand quashed. - W.P. Nos. 24883 of 2017, 6483, 11994, 9352, 9413 of 2018, 9079 of 2019, 4328 of 2021, 18510 of 2020 and 11468 of 2017 And W.M.P.Nos. 26271 & 12450 of 2017, 8000, 11232, 11233, of 2018, 9613 of 2019, 4913, 4914 of 2021, 22947 & 22946 of 2020 - - - Dated:- 27-6-2023 - Honourable Dr. Justice Anita Sumanth For the Petitioner : Mr.Srinath Sridevan, Senior Counsel for Mr.T.K.Baskar, Mr.S.Ranjith Kumar, Mr.M.L.Ganesh, Mr.S.Sethuraman, Mr.Srinath Sridevan, Senior Counsel for Mr.K.Harishankar, Mr.S.Ranjith Kumar, Mr.N.Umapathi, Mr.N.Umapathi For the Respondents : Mr.A.P.Srinivas SSC for R1 to R3 Mr.Murali, GA for R5 No appearance for R4, Mr.Murali, GA for R1 Mr.A.P.Srinivas SSC for R2, Mr.Prabhu Mukund Arunkumar, JSC for R1 No appearance for R2 Mr.Murali, GA for R3, Mr.A.P.Srinivas SSC for R1, Mr.Murali, GA for R5 No appearance for R1 to R4, Mr.Prabu Mukund Arunkumar, JSC for R1 to R4 NA for R5, Mr.A.P.Srinivas SSC for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued prior to 2010 which is prior to the date of execution of mortgage deed dated 29.03.2010. Yes 2 11468 /2017 J.M.Financial Asset Reconsruction Co. Ltd 1. Tax Recovery Officer 2 2. Deepa Panels Pvt Ltd 3. SRO, Kunrathur Writ of mandamus directing the 1st respondent to lift the attachment and consequently direct respondent no.3 to register the sale certificate in respect of property situate in Kannapalayam Village, Sriperumbuthur Taluk, Kancheepuram Dist. Comprised in Survey No.184/3C measuring and extent of 163 cents if presented by the petitioner. The Secured creditor shall have precedence over Central or State Government in view of Sec.26E of SARAESI Act and Sec.31B of RDDB and FI Act. Note : Though it is stated as Certiorarified mandamus before the grounds the prayer and writ petition is only for a writ of mandamus. The Income Tax Department attached the property by issue of Form No. ITCP 16 on 21.11.2011 only thereafter proceeding under SARFAESI Act was initiated and notice u/s 143(2) was given much earlier to the mortgage. Sec.225( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la m and Mr.Srinivasan and S.Arumugam pertaining to property in Old Door No.11, new No.36/11, Avvaiyar Street 2, Veerappan Chathiram, Panchayat Board, Erode Dsitrict. The attachment is contrary to full bench judgment of the Hon'ble Madras High Court reported in 2016 (3) CTC 4937. Note : The petitioner has not challenged passed by the 2nd respondent dated 28.12.2017 Counter of 1st respondent, SRO, Erode Attachment of the subject property has been made by the Income Tax Department on 09.11.2017 No counter filed by 2nd respondent. Yes 6 6483/1 8 Bank of Baroda, Chennai 07. 1.The Tax Recovery Officer 2.Joint Commissione r of Income Tax 3.The Principal Commissione r of Income Tax 6 4.K.Chandras ekar(implead ed) Writ of Certiorarified mandamus to call for records of the 1st respondent in TRC No.207/201314, relating to the impugned order dated 16.03.2018 quash the same and to direct the 1st respondent to allow the objection petition and raise the order of attachment of the immovable property. The Income Tax Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported in AIR 2017 MAD 67 No counter Yes 11 4328/ 2021 Union Bank of India, Coimbatore 1.The Tax Recovery Officer 1 2.The Sub- Registrar, Tiruppur 3.M/s.Beetle Export Writ of Certiorarified Mandamus to call for the records of the 1st respondent made in proceedings in PRC No.8,9 and 10/NCR-2/201617/TRO-1/CBE PAN: AAHFB1761A/AA DFT3969N dated 27.03.2017 respectively and quash the same and consequently direct the 1st respondent to lift the attachment made in pursuant to the impugned order so as to enable the petitioner bank to proceed in accordance with law and render justice. The Secured Creditor shall have precedence over Central and State Government in view of Sec.26E of SARFAESI Act and Sec.31B of RDDB and FI Act and the Secured Creditor has first priority over the Income Tax Department in view of the judgment of the Full Bench judgment of the Hon'ble Madras High Court reported in AIR 2017 MAD 67. Notice of demand was issued as early as 31.03.2015 and therefore the Department as the first charge and the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction to the first respondent Tax Recovery Officer, Income Tax Department to remove the attachment made on 16.06.2017 and 23.07.2017 in respect of the properties, which were already mortgaged on 28.01.2016 and 07.02.2016, by the fourth and fifth Respondents to raise loan. 30.2. In all these cases, the orders of attachment passed by the Tax Recovery Officer / Income Tax Department were subsequent to the mortgage created in favour of the secured creditors and hence, the same will have no legs to stand, in view of the principles laid above by this court. Therefore, the orders impugned in the writ appeals viz., WA Nos.1512/2021, 60/2022 and 1249/2022 and in the writ petitions, are quashed. Regarding WA No.1385 of 2022 filed by the Revenue, there is no necessity to interfere with the order passed by the learned Judge. 31. Accordingly, all the Writ Appeals are disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 5. The tabulation made by Mr.Prabhu has taken note of the observations and conclusions of the Division Bench as extracted above. 6. There is consensus of all learned counsel before me, including learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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