TMI Blog2019 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... is immoveable properties - the decision in the case of Automark Industries (I) Ltd. v. State of Gujarat [2015 (11) TMI 1016 - GUJARAT HIGH COURT] is squarely applicable to the facts of the present case, where it was 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. 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? - Held that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT PLEADER (1) ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. In compliance with the order dated 12.12.2018, the second respondent has filed an affidavit-in-reply. The same is taken on record. 2. Heard Mr. Trupesh Kathiriya, learned advocate for the petitioner and Mr. Utkarsh Sharma, learned Assistant Government 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents for lifting the attachment made vide the impugned order; however, such request was turned down by the respondents. Being aggrieved the petitioner has filed the present petition. 8. Mr. Trupesh Kathiriya, learned advocate for the petitioner submitted that the attachment in the present case has been made during the pendency of the stay application and hence, 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire tax amount has already been deposited and the attachment is only for the amount payable towards penalty and interest. It was submitted that therefore, the order of attachment having been made during the pendency of the petitioner is invalid. Moreover, the respondents are not justified in continuing with such order of attachment despite the Tribunal having granted stay against recovery. 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 rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y application. However, in the absence of any exceptional circumstances, there is no warrant for the respondent authorities to proceed to initiate coercive recovery in exercise of powers under section 44 of the Act by attaching the bank accounts of the petitioner. 12.1 The above decision would be squarely applicable to the facts of the present case, insofar as the first question is concerned. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other Revenue Demands . In other words the chapter relates to recovery of revenue demands. Section 152 of the Code provides for issuance of a notice of demand. Section 200 thereof bears the heading Power of revenue officer to enter upon any lands or premises for purposes of measurement, etc. Section 155 of the Code provides for Sale of defaulter s immovable property and provides that the Collector 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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