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2022 Supreme(Guj) 690
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, NISHA M. THAKORE, JJ.
Shree Radhekrushna Ginning and Pressing Pvt. Ltd., Through Director Yash Pareshbhai Khachar - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 5413 of 2022
Decided On : 29-03-2022
For the Petitioner: Mr. Apurva N. Mehta.
For the Respondent: Mr. Utkarsh Sharma, AGP.
Headnote:
Constitution of India, 1950 – Article 226 – GVAT Act, 2003 – Section 46, 44, 48 Transfer of Property Act, 1882 – Section 100 – Power of High Courts to issue certain writs – Writ applicant has prayed for reliefs –Held, First appeal as well as second appeal that may be filed by writ applicant is dismissed, then next step in process would be recovery of requisite amount – What could be said to have been done as on date is just to make one and all aware that by operation of law, as envisaged under Section 48 of GVAT Act, there is a charge of State Government over immovable properties owned by writ applicant, as described above – How would all come to know about same – It is for this reason that an entry is ordinarily made in revenue records – Court would like to clarify that what has been done by Talaticum-Mantri does not amount to attachment of property – There is no attachment – Court reiterate that there is a fine distinction between attachment of property and a charge over property by operation of law – Writ application rejected.
JUDGMENT :
J.B. Pardiwala, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs :
“(A) Your Lordships may be pleased to admit and allow the present petition.
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and direction and further be pleased to quash and set aside the impugned order dated 13.08.2020 passed by the Ld. Respondent No.2.
(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and direction and further be pleased to direct the Ld. Respondent No.2 to release the charge on the property of the petitioner, being Revenue Survye No.252/2, Plot No.01, village : Gomta, Taluka : Gondal, District : Rajkot.
(D) Such other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.”
2. It appears from the materials on record that the writ applicant has incurred a liability of Rs.1,68,10,098/- towards the VAT under the provisions of the GVAT Act, 2003. Such liability came to be incurred by virtue of an assessment passed by the competent authority order dated 23rd March 2020.
3. The assessment order dated 23rd March 20202 is now a subject matter of challenge before the first appellate authority. The appeal has been admitted by the first appellate authority and the further proceedings towards the recovery have been stayed on the condition of pre-deposit of Rs.7 Lakh. The writ applicant is here before this Court redressing the grievance that since the first appellate authority has stayed the recovery, the charge which has been created over the property owned by the writ applicant in the form of land and factory building situated at the revenue survey No.252/2, paiki - 1, village : Gomta, Taluka : Gondal, should now be released. In other words, the charge which has been created in the revenue record should no longer remain in operation.
4. We have heard Mr. Apurva N. Mehta, the learned counsel appearing for the writ applicant and Mr. Utkarsh Sharma, the learned A.G.P. appearing for the State respondents.
5. Mr. Mehta would submit that the apprehension on the part of the department that in the absence of any charge, the writ applicant may dispose of the land and factory building is absolutely misconceived and not well-founded as Section 48 of the GVAT Act takes care of the situation. We are not impressed with such a submission.
6. At one point of time, Mr. Mehta, the learned counsel, during the course of his submissions, got confused between an attachment of property and charge created over the property. Mr. Mehta would also submit that the action on the part of the respondent No.2 is nothing, but amounts to attachment of the property pending the appeal before the first appellate authority. Mr. Mehta would submit that the same is not permissible in law as there is no provision in the GVAT Act which permits attachment of a property after the final assessment order is passed and the first appeal is pending before the first appellate authority.
7. There appears to be a serious misconception on the part of the writ applicant that its property referred to above has been attached. The argument is that there cannot be any attachment of property since against the assessment order, there is an appeal pending and the appellant authority has stayed the recovery.
8. Section 44 of the GVAT Act provides for a special mode of recovery. This provision has no application to the facts of the present case. Section 45 is with respect to the provisional attachment. Even this provision has no application to the facts of the present case as the assessment order has already been passed. Section 46 confer special powers to the Tax Authorities for recovery of tax as arrears of land revenue. We have not reached even to this sta
