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TMI Blog2007 (9) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferees so as to avoid the rigour of section 26A? (3) Whether before revenue recovery sale, the person in possession could be directed to vacate the house in the property sought to be sold? The parties are referred to hereunder as per their rank in the writ petition. The fourth respondent-firm, M/s. Marvel Industries, is an assessee under the Kerala General Sales Tax Act, 1963. Respondents 5 and 6 are the partners of the firm. The counter-affidavit filed by the Assistant Commissioner (Law) holding the charge of the Joint Commissioner (Law), Department of Commercial Taxes, in the writ appeal reveals that the fourth respondent-firm is liable to pay a sum of Rs. 90,91,837 as sales tax for the assessment year 1992-93, penalty of Rs. 41,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of sales tax arrears due from the fourth respondent. But those suits were subsequently withdrawn. Thereafter, when the properties were proclaimed for sale, the petitioners filed O.P. No. 23617 of 2002. The said writ petition was disposed of as per exhibit P 1 judgment dated May 30, 2006 directing the Tahsildar to dispose of the claim petitions filed by the petitioners under section 46 of the Kerala Revenue Recovery Act, 1968. The learned single judge who disposed of the writ petition held thus: "The Tahsildar will call for the records from the concerned sales tax authority for verifying the date of inspection of the factory. If he finds that the sale was effected in favour of the petitioners during pendency of any proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any transfer effected by the assessee before the demand made for realisation of arrears of sales tax would be valid and that the petitioners are in possession of the properties. They also contend that the notices to vacate the houses are quite illegal. In the counter-affidavit filed by the third respondent, the Tahsildar, apart from stating the facts to support exhibits P 2 to P 4, it is stated thus: "Though the defaulter transferred their properties to the petitioners, the possession of the properties is still with the defaulters. The fifth respondent Sri. K. Abdul Samad resides in the house which he transferred to the third petitioner Sri. K. Abdu. The sixth respondent Sri. K.P. Muhammadali resides in the house which he transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble by the assessee under the KGST Act. Inspection of the shop, factory or business premises of the assessee by the sales tax officers would also come within the meaning of the expression "during the pendency of any proceedings" under section 26A. The transfer as such is not void. It would be a valid transfer as between the transferor and the transferee. But it would be void against any claim in respect of any tax or any other sum payable by the assessee-transferor under the Act. The transferee is not entitled to put forward any defence that the transfer was made for valid consideration or that he is a bona fide purchaser for value. Such defences are outside the purview of section 26A of the Act. Once the ingredients of section 26A are attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector shall cause a publication of the name of the purchaser as provided under section 57(1) of the Act. Sub-section (2) of section 57 provides that registration of the certificate of sale under the Indian Registration Act, 1908 shall be insisted upon in case the purchaser requests that he may be put in possession of the land. Section 58 confers powers on the Collector to effect delivery of possession of the property to the purchaser as if the immovable property had been decreed to the purchaser by a decision of a civil court. Under section 58(2) of the Revenue Recovery Act, the Collector is competent to exercise all the powers of a civil court under the Code of Civil Procedure, 1908. It is true that section 37 of the Act empowers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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