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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 ..... Arunkumar, JSC for R1 to R4 NA for R5, Mr.A.P.Srinivas SSC for R1 Mr.Murali, GA for R2 No appearance for R3 And Mr.A.P.Srinivas SSC for R1 Mr.Murali, GA for R2 No appearance for R3 COMMON ORDER This common order disposes a batch of writ petitions wherein the challenge is to proceedings for attachment of various immovable properties. The Income-Tax Department represented by Standing Counsel is the respondent in all but one writ petition (W.P.No.9413 of 2018) where the Commercial Taxes Department is arrayed as respondent, for whom there is no appearance. 2. Mr.Prabhu Mukund Arunkumar, learned counsel, appointed as amicus curiae to assist the Court in tabulation of the particulars relating to dates of creation of mortgage and dates of attachment by the Income-Tax Department / Sales Tax Department has, very helpfully, prepared a comprehensive chart, as follows:- Sl.No W.P.No Petitioner Respondent Prayer Issue raised by Bank / Financial Institution/ ARC Counters Whether the issue raised in the WP is covered by the judgment in WA 1512 of 2021 1 24883/17 Pridhvi Asset Reconstructions and Securitization Company 1. Tax Recovery Officer-1 2. M/s.Nihaa Retail Pvt Ltd. 3. Rama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red at SRO, Kundrathur but in the Sub Registrar Office, Avadi. The petitioner has not presented any sale certificate for registration. Yes (But the order passed by the 1st respondent has not been challenge d). 3 9352/ 2018 Corporation bank, Coimbatore 1. The Commissione r of Income Tax Dept. 2. Mr.V.Balasubramaniam Writ of declaration declaring the order of attachment bearing no.TRC No.8,9 & 10/NCR-2/201617/TRO-1/CBE dated 27.03.2017 passed by 1st respondent subject to mortgage dated 01.07.2015 as Doc.No.3269 in favour of the petitioner bank and render justice The Secured Creditor shall have precedence over Central or State Government in view of Sec.26E of SARFAESI Act and Sec.31B of RDDB and FI Act The demand notice was issued on 31.01.2015 prior to the mortgage with the petitioner bank on 24.06.2015 registered with the SRO, Thiruppur on 01.07.2015. Notice of demand for defaulters in Form No. ITCP-1 were issued on 07.11.2016 Yes 4 9413/1 8 Maximus ARC Ltd 1.Commercia l Tax Dept, Puducherry, 2.Sreenivas Buildtech (Ind) Pvt Ltd 3.Mr.R.Venug opal, Puducherry 4.Mrs.V.Kan mani, Puducherry 5.SRO, Boomainpet, Puducherry Writ of Certiorarified mandamus t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st respondent to allow the objection petition and raise the order of attachment of immovable properties and render justice. The petitioner is a Secured Creditor and has priority over crown debt. Challenges as against an auction sale by the Department in pursuant to order of attachment. Hence the question of priority does not arise. Yes, whereas the issue of auction sale by the Income Tax Department was not put to question before the Single Bench as well as before the Division Bench. 10 18510/ 2020 Union Bank of India, Coimbatore 1.The Tax Recovery Officer - 1 2.The Sub- Registrar, Tiruppur. 3.M/s.Ultimat e Solution 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 or State Government in view of Sec.26E of SARFAESI Act and Sec.31B of RDDB and FI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gages were created in favour of appellant on 23.04.2013 vide document No.453 of 2013, on 18.08.2014 vide document No.2467 of 2014 and on 22.10.2015 vide document No.3168 of 2015. However, the Income Tax Department passed the order of attachment on 03.11.2015, for recovery of the tax dues, in respect of the properties over which mortgages were already created. (ii) In W.A.No.1249 of 2022, the appellant sought to quash the communication of the Respondent dated 27.12.2007 with respect to recovery of income tax arrears of M/s.NEPC Agro Foods Limited and its Directors, on the premise that mortgage in respect of the property, was executed in favour of the Bank on 31.03.1999 itself, i.e., prior to the recovery proceedings. (iii) In WA.No.1385 of 2022, the writ petitioner / Bank challenged the attachment notice dated 27.03.2017 issued by the Income Tax Department, in respect of the properties which were offered to them as security by way of mortgage by deposit of title deeds for securing loans on 10.02.2014. The learned Judge allowed the writ petition on the ground that the mortgage preceded the attachment. (iv) In WA.No.1512 of 2021, the appellant / Bank sought a direction to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion filed under Section Article 226 of Constitution of India praying to issue a writ of mandamus directing 1st respondent to register sale certificate dated 12.01.2018 in favour of auction purchaser Mr. Venkatachalam and Mr.Srinivasan and S. Arumugam pertaining to property old door No. 11 New No. 36/11 Avvaiyar Street-2 Veerapanchathiram, Panchayath Board, Erode District. 8. These prayers are accepted in light of the decision of the Division Bench in State Bank of India v Tax Recovery Officer. I am thus of the considered view that the orders of attachment would have to go, and the fact that the orders of attachment have not been challenged would have no consequence in the matter. In these cases as well, it is an admitted position that the attachment of the properties by bank in question in those cases was far prior to the orders of attachment. 9. In light of the discussion as aforesaid and applying the conclusion of the Division Bench that has taken note of several judgments of the Hon'ble High Court, these writ petitions are allowed. Let the needful be done within a period of four weeks from date of receipt of a copy of this order. 10. Writ petitions stand allowed as above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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