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The Punjab & Sind Bank Branch Office, Mani Majra, Chandigarh Versus The State of Punjab & Another

2015 (6) TMI 81 - PUNJAB & HARYANA HIGH COURT

Attachment of property - Preferential creditor - Held that:- In the case of Punjab National Bank Vs. The State of Haryana & others [2009 (10) TMI 886 - PUNJAB & HARYANA HIGH COURT], income dues were not given any statutory preference - The statutory preference has been given to the tax arrears under the VAT Act. In view of the Supreme Court judgment in Central Bank of India's case (2009 (2) TMI 451 - SUPREME COURT OF INDIA), we find that the claim of the petitioner that it had preference over th .....

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communication dated 23.05.2014 (Annexure P-1), whereby the possession of the assets of the borrower were taken by the Collector -cum- Assistant Excise Taxation, Ropar circle, Ropar and the management of the land handed over to the Tehsildar, SAS Nagar. The petitioner, a public sector Bank, advanced loan to respondent No.2 - M/s Sumit Engineering Pvt. Ltd., when the said respondent mortgaged its immovable properties. After the loan was declared non-performing asset on 31.08.2013, the petitioner- .....

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but the same could not be auctioned. In the meantime, the petitioner-Bank received a letter dated 07.05.2014 in respect of attachment of the property for recovery of dues of the State under the Punjab Value Added Tax Act, 2005 (for short the VAT Act'). The grievance of the petitioner is that respondent No.1 is a preferential creditor, as against the crown debt, therefore, the property could not be attached in terms of the VAT Act. In the reply filed on behalf of respondent No.1, the stand i .....

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e has been created for the payment of amount of tax, penalty, interest and other sum payable. The relevant Section 35 of the VAT Act reads as under: "35. Notwithstanding anything to the contrary contained in any contract or law for the time being in force, any amount of tax, penalty, interest and any other sum, payable by a taxable, registered or any other person under this Act, shall be the first charge on the property of such person from the date on which the amount becomes due and payabl .....

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j, learned Additional Advocate General, Haryana representing respondent No.1 - State, apart from relying upon the judgment in Central Bank of India's case (supra), referred to judgments of Division Bench of this Court in CWP No.3875 of 2005 titled Punjab State Industrial Development Corporation Vs. Union of India' decided on 30.01.2007 and CWP No.2431 of 2009 titled Axis Bank Ltd. Vs. The Commissioner of Income Tax, Ludhiana & another' decided on 02.12.2011 to contend that the St .....

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Bench held that the reliance on the provisions of Section 61 of the VAT Act are unwarranted, as the said provisions only contemplate that all arrears of tax and other amount due at the commencement of the VAT could be recovered if the same had accrued under the VAT Act, but there is no provision in the Haryana General Sales Tax Act corresponding to Section 26 of the VAT Act giving preference to the dues of the State. The relevant extract from the said judgment reads as under: "22. A perusal .....

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esponding to Section 26 of the VAT Act. Therefore, Section 26 of VAT Act cannot be read as part of HGST Act because Section 61 is aimed at asserting only those rights which have accrued under the HGST Act. There is no charge created on a property as has been created by Section 26 of VAT Act. Therefore, by no stretch of imagination, it could be assumed that the arrears of tax under the HGST Act could be recovered by creating a charge over the mortgaged property belonging to respondent No.3, there .....

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of above discussion, we hold that the DRT Act and Securitisation Act do not create first charge in favour of banks, financial institutions and other secured creditors and the provisions contained in Section 38C of the Bombay Act and Section 26B of the Kerala Act are not inconsistent with the provisions of the DRT Act and Securitisation Act so as to attract non obstante clauses contained in Section 34(1) of the DRT Act or Section 35 of the Securitisation Act." In V. S. Kandalgaonkar's ca .....

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lien is made fully effective by statute." Based on this it was further argued that such lien would not include any lien provided by or dependent on an agreement to give security, whether or not such lien is also provided by or dependent upon statute, and whether or not such lien is made fully effective by statute. 39. The first thing to be noticed is that the Income Tax Act does not provide for any paramountcy of dues by way of income tax. This is why the Court in Dena Bank Vs. Bhikhabhai P .....

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