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TMI Blog2019 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Pleader for the respondents. 3. Rule. Mr. Utkarsh Sharma, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 4. Having regard to the controversy involved in the present case and the urgency of the matter, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 5. By this petition under article 226 of the Constitution of India, the petitioner has challenged the attachment order dated 03.10.2013 passed by the Commercial Tax Officer-1 in exercise of powers under section 155 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as "the Code"). 6. The facts stated briefly are that by an assessment order dated 29.02.2008 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned order of attachment is bad in law. In support of such submission, the learned advocate placed reliance upon the decision of this court in the case of Automark Industries (I) Ltd. v. State of Gujarat, [2016] 53 GST 178 (Guj.), wherein the court has held that the respondents should stay their hands till the stay application is decided, unless the stay application is not decided on account of default on the part of the petitioner or it is found that the petitioner is unnecessarily delaying the hearing of the stay application. However, in the absence of any exceptional circumstances, there is no warrant for the respondent authorities to proceed to initiate coercive recovery. 8.1 It was further submitted that once the Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery. 11. The questions that arises for consideration in the present case are: firstly, as to whether the respondent was justified in making the order of attachment despite the pendency of the stay application before the Tribunal; and secondly, as to whether after the Tribunal had granted stay against recovery of the amount in connection with the demand raised, whether it is permissible for the respondents to continue with the attachment made vide the impugned order dated 03.10.2013. 12. Insofar as the first question is concerned, the same is no longer res integra as this court in the case of Automark Industries (I) Ltd. v. State of Gujarat (supra), has held thus: "13. While it is true that under rule 27 of the rules, the respondent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nothing has been pointed out to this court to establish that the stay application was not decided expeditiously by the Tribunal on account of any default on the part of the petitioner. Moreover, the petitioner has already deposited the tax component of the demand. In the absence of any exceptional circumstances having been made out, there was no warrant on the part of the respondents to initiate coercive recovery against the petitioner by attaching his immoveable properties. 13. As regards the second question, according to the respondents, since the Tribunal has only granted stay against recovery, the respondents are not required to lift the attachment on the property in question. In this regard, a perusal of the provisions of the Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor may cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrears is due to be sold. 15. Since the powers exercised by the respondents are under section 155 of the Code, it evident that the same is in the nature of recovery proceedings. Therefore, once the Tribunal had stayed the recovery by virtue of its order dated 24.01.2014, the respondents were bound to respect such orders and lift the attachment on the properties of the petitioner made vide the impugned order. Since, the attachment is part of recovery proceedings, the contention that there is no recovery and/or attachment, cannot be countenanced. The impugned order dated 03.10.2013, therefore, cannot be sustained. 16. For ..... X X X X Extracts X X X X X X X X Extracts X X X X
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