State Bank of India. Deputy Commercial Tax Officer, Suryapet, Nalgonda District, and others (and vice versa)

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1 [2014] 68 VST 340 (AP) [IN THE ANDHRA PRADESH HIGH COURT] State Bank of India V. Deputy Commercial Tax Officer, Suryapet, Nalgonda District, and others (and vice versa) HF Department. ROHINI G. AND SUNIL CHOWDARY T. JJ. December 23,2013 RECOVERY OF TAX--SECURED DEBT--FIRST CHARGE--PROVISION PROVIDING FOR FIRST CHARGE ON PROPERTIES OF DEALER FOR PAYMENT OF ARREARS OF SALES TAX UNDER ACT--WOULD PREVAIL AND HAVE PRECEDENCE OVER EVEN ON EXISTING SECURED DEBT CREATED BY DEFAULTER--NON OBSTANTE CLAUSE INCORPORATED IN PROVISION EXCLUDES NOT ONLY OTHER STATUTES BUT ALSO OTHER PROVISIONS OF ACT--ANDHRA PRADESH GENERAL SALES TAX ACT (6 OF 1957), SS. 16C, 17A. CONSTRUCTION OF TAXING STATUTES--COURT TO REJECT CONSTRUCTION THAT LEADS TO INCONSISTENCY IN SYSTEM REGULATED BY STATUTE. The assessee who had availed of a loan from the petitioner-bank by mortgaging certain immovable properties by deposit of title deeds on February 27, 1996 committed default in repayment. The petitioner filed a suit and a preliminary decree was passed in its favour on April 3, 2006, its application for final decree pending. The assessee fell into arrears of tax for the periods to under the Andhra Pradesh General Sales Tax Act, 1957 and the property was attached on January 22, 2008 under the Revenue Recovery Act. The Deputy Commercial Tax Officer issued a sale notice proposing to auction the property mortgaged by the assessee in favour of the petitioner purportedly under the A. P. Revenue Recovery Act, A legal notice informing Deputy Commercial Tax Officer that a preliminary decree had already been passed in its favour on April 3, 2006 was issued by the petitioner. However, the Deputy Commercial Tax Officer filed a reply notice contending that the property was attached by them towards arrears of tax dues under section 27 of the Revenue Recovery Act published in the District Gazette and claimed priority of charge under section 16C of the Andhra Pradesh General Sales Tax Act, The property was brought to sale in public auction on March 26, 2008 and sold to the successful bidder. On a writ petition seeking a declaration that the proceedings of the Deputy Commercial Tax Officer dated January 22, 2008 under section 27 of the Revenue Recovery Act attaching the property of the assessee were arbitrary and illegal: Held, dismissing the petition, that a plain reading of section 16C inserted into Andhra Pradesh General Sales Tax Act, 1957 by Amendment Act 9 of 1999 with effect from April 6, 1999 provided for an absolute precedence to the arrears of tax under the Andhra Pradesh General Sales Tax Act. Therefore any amount of tax payable by a dealer or any other person under the Andhra Pradesh General Sales Tax Act would be the first charge on the property of the dealer and would prevail over even on existing secured debt created by such dealer or person in favour of any other individual institution or instrumentality. Though section 17A inserted by Act 18 of 1985 with effect from July 1, 1985 appeared to have diluted the absolute precedence given to the arrears of tax under section 16C, in the light of the Statement of Objects and Reasons of Act 9 of 1999 under which section 16A was inserted, the non obstante clause incorporated therein excluded not only other statutes but also the other provisions of the Andhra Pradesh General Sales Tax Act.

2 State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation [1995] 96 STC 612 (SC), State of M.P. v. State Bank of Indore [2002] 126 STC 1 (SC) and Andhra Pradesh State Financial Corporation v. Government of Andhra Pradesh [2010] 34 VST 258 (AP) followed. Central Bank of India v. State of Kerala [2009] 21 VST 505 (SC) applied. The principles of statutory interpretation require that the court should reject a construction that results in hardship, absurdity or anomaly or which leads to inconsistency in the system which the statute purports to regulate. The court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute and it must compare the clause with the other parts of law and the setting in which the clause to be interpreted occurs. State of West Bengal v. Union of India [1963] AIR 1963 SC 124 followed. Writ Petition No of 2008, WVMP No of 2008 decided on December 23,2013 A. Satyanarayana for the petitioner. P. Balaji Varma, Special Standing Counsel for Commercial Taxes and P.R. Prasad for the respondents. Cases referred to : State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation [1995] 96 STC 612 followed State of M.P. v. State Bank of Indore [2002] 126 STC 1 followed Andhra Pradesh State Financial Corporation v. Government of Andhra Pradesh [2010] 34 VST 258 followed Central Bank of India v. State of Kerala [2009] 21 VST 505 applied State of West Bengal v. Union of India [1963] AIR 1963 SC 124 followed Andhra Pradesh State Financial Corporation v. Government of Andhra Pradesh [2010] 34 VST 258 Referred to Central Bank of India v. State of Kerala [2009] 21 VST 505 [2010] 153 Comp Cas 497 (SC) Referred to Damera Ramakrishna v. Commercial Tax Officer (FAC) [2005] 142 STC 515 Referred to State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation [1995] 96 STC 612 [1995] 212 ITR 428 (SC) Referred to State of M.P. v. State Bank of Indore [2002] 126 STC 1 [2002] 108 Comp Cas 622 (SC) Referred to State of West Bengal v. Union of India [1963] AIR 1963 SC 124 Referred to The order of the court was made by ORDER MS.G.ROHINIJ.-The petitioner is a nationalized bank. The third respondent herein availed of a loan from the petitioner-bank by mortgaging certain immovable properties for securing repayment. Since the third respondent committed default in repayment, the petitioner-bank filed O.S. No. 24 of 2004 on the file of the court of Senior Civil Judge, Suryapet for recovery of money by sale of the mortgaged properties. The said suit was decreed by judgment dated April 3, 2006 and a preliminary decree was passed in favour of the petitioner-bank. Pursuant thereto, the petitioner filed I. A. No. 135 of 2008 for a final decree and the same is pending. While so, the first respondent-deputy Commercial Tax Officer issued sale notice dated August 18, 2008 proposing to auction the property mort-

3 gaged by the third respondent-bank in favour of the petitioner-bank purportedly under the A.P. Revenue Recovery Act, 1864 (for short, "the Revenue Recovery Act") for recovery of the arrears of commercial tax amount of Rs. 1,74,530. The petitioner got issued a legal notice dated February 28, 2008 informing the first respondent that a preliminary decree has already been passed in its favour on April 3, 2006 in respect of the properties in question and requesting to withdraw the property in question from the auction. However, the first respondent by reply notice dated March 10, 2008 contended that the property was attached by them towards arrears of tax dues under section 27 of the Revenue Recovery Act published in the District Gazette dated January 25, 2008 and thus claimed priority of charge under section 16C of the Andhra Pradesh General Sales Tax Act, 1957 (for short, "APGST Act") and section 26 of the Andhra Pradesh Value Added Tax Act, 2005 (for short, "the APVAT Act") over the property in question under the category of Crown debt. Page No: 342 Aggrieved by the said action of the first respondent, this writ petition is filed seeking a declaration that the proceedings of the first respondent dated January 22, 2008 under section 27 of the RR Act published in Nalgonda District Extraordinary No. 392, dated January 25, 2008 attaching the property of the respondent-bank are arbitrary and illegal. The first respondent filed a counter contending that respondent No. 3 did business under the name and style of M/s. Pabba Bixamaiah General Merchants and Commission Agent and fell in arrears of tax of Rs. 1,74,530 during the years to In spite of repeated demands, the said dealer failed to clear the above arrears and therefore the action was taken under the provisions of the Revenue Recovery Act and the dealer's house property was attached and the same was brought to sale in public auction on March 26, 2008 after giving wide publicity in the area. The auction proceedings were conducted in the presence of two employees of Suryapet Municipality and respondent No. 4 herein was declared as the highest bidder for a sum of Rs. 5,87,000. Accordingly, respondent No. 4 deposited the bid amount on April 23, 2008 and April 24, 2008, i.e., within 30 days as prescribed under section 36 of the Revenue Recovery Act. It is also stated that the Sub-Registrar, Suryapet, issued a certificate stating that the market value of the property is Rs. 7,49,139 for the purpose of registration and their investigations in the local area revealed that the property would fetch Rs. 5 lakhs. However, to protect the interest of the petitioner and the Government, the first respondent mentioned the estimated value of the property as Rs. 9 lakhs in form 7A notice in the auction conducted on March 26, The highest bid received was Rs. 5,87,000 and the same was accepted. The allegations of irregularities in conducting auction were denied and it is explained that five persons participated in the auction depositing the earnest money and the fourth respondent offered the highest amount of Rs. 5,87,000. It is also stated that the third respondent who is defaulter did not raise any objection as regards value and auction proceedings. It is further contended that in terms of section 16C of the APGST Act any amount of tax, penalty, interest or any other sum payable by the dealer under the said Act shall the first charge on the property of the dealer and therefore the first respondent holds priority over all other charges on the property including the mortgage. Respondent No. 4 in her counter-affidavit while reiterating the stand taken by the first respondent with regard to the legal position that the Crown debt will have preference over the other debts whether under the

4 Central or local Act, further explained that she had complied with all the terms and conditions prior to auction conducted by respondents 1 and 2 in Page No: 343 pursuance of the sale notification dated February 18, 2008 and therefore she is entitled for conveyance of the property. We have heard the learned counsel for both the parties. The facts borne out of the record may be reiterated as under: The petitioner-bank sanctioned loan to respondent No. 3 on February 27, Even prior to that, the property in question was mortgaged in favour of the petitioner-bank by deposit of title deeds on February 27, The petitioner-bank filed O. S. No. 24 of 2004 and a preliminary decree was passed on April 3, The petitioner's application for final decree is pending. Coming to the claim of the first respondent, the third respondent fell into arrears of payment of commercial tax for the period to Therefore, the property of the third respondent was attached on January 22, 2008 by issuing form 5 under the Revenue Recovery Act. The same was published in the Gazette, dated January 25, Subsequently the sale notice was issued on February 15, 2008 and the sale was held on March 26, 2008 in which respondent No. 4 emerged as the successful bidder. From the above, it is clear that the preliminary decree dated April 3, 2006 was granted in favour of the petitioner-bank much prior to attachment effected by the first respondent on January 22, However, the question that requires consideration is whether the first respondent is entitled to have precedence over the secured debt created by the third respondent in favour of the petitioner-bank. Section 16C has been inserted into the APGST Act, 1957 by Amendment Act 9 of 1999 with effect from April 6, 1999 providing for an absolute precedence to the arrears of tax under the APGST Act. For ready reference, section 16C may be reproduced hereunder: "16C. Liability under this Act to be the first charge.-notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax, penalty, interest and any other sum, if any, payable by a dealer or any other person under this Act, shall be the first charge on the property of dealer, or such person." A plain reading of the above provision shows that any amount of tax payable by a dealer or any other person under the APGST Act shall be the first charge on the property of the dealer. The vires of section 16C was upheld by a Division Bench of this court in Andhra Pradesh State Financial Corporation, Hyderabad v. Government of Andhra Pradesh [2010] 34 VST 258 (AP); [2010] 51 APSTJ 117. Page No: 344

5 Having considered the issue whether the liability of the dealer in respect of the tax, penalty, interest or any other sum payable to the State/Commercial/Sales Tax Department under the provisions of the APGST Act has priority, would prevail and have precedence over even on existing secured debt created by such dealer or person in favour of any other individual institution or instrumentality, the Division Bench held (page 263 in 34 VST): "The policy justification for the impugned provision is the well entrenched common law doctrine of priority of crown debts. The common law doctrine postulates that the State is entitled to claim, for the recovery of the amount of tax due to it from a citizen precedence and priority over unsecured debts due from the said citizen to his other private creditors. The basic justification for such claim of priority rests on the well recognized principle that the State is entitled to raise money by taxation, otherwise it will not be able to function as a sovereign Government at all. This consideration emphasizes the necessity and wisdom of conceding to the State the right to claim priority in respect of its tax dues..." So far as the effect of the first charge created under section 16C in respect of the tax, penalty, interest and any other sum payable under the APGST Act is concerned, in State of M.P. v. State Bank of Indore [2002] 126 STC 1 (SC); [2002] 108 Comp Cas 622 (SC); [2002] 10 SCC 441, the apex court considered an identical statutory first charge created under section 33C of the M.P. General Sales Tax Act, 1958 which is in pari materia to section 16C of the A.P. General Sales Tax Act, In the said case, the second respondent therein had obtained a term loan from the State Bank of Indore and executed a promissory note apart from pledging certain machinery to the bank. While so, the State claimed a first charge upon the machinery in respect of the sales tax dues from the second respondent in priority to the charge held by the bank. It was held by the apex court that the charge created in favour of the State in respect of the sales tax dues prevailed over the charge created in favour of the bank in respect of the loan taken by the second respondent irrespective of the fact that section 33C was inserted with effect from January 19, 1976, since section 33C operated in respect of all charges that were then in force and gave sales tax dues precedence over them. In State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation [1995] 96 STC 612 (SC); [1995] 212 ITR 428 (SC); [1995] 2 SCC 19 also the apex court considered a similar provision, i.e., section 11AAAA of the Rajasthan Sales Tax Act, 1954 providing for the first charge Page No: 345 of the State on the property of the dealer and it was held that charge includes mortgage and therefore a statutory first charge has precedence over an existing mortgage. Rejecting the contention on behalf of the bank that its dues will have priority because at the time when the statutory first charge came into existence there was already a mortgage in respect of the same property, it was held in State Bank of Bikaner & Jaipur v. National Iron & Steel Rolling Corporation [1995] 96 STC 612 (SC); [1995] 212 ITR 428 (SC); [1995] 2 SCC 19 (page 615 in 96 STC): "8...Theargumentthough ingenious, will have to be rejected.

6 Where a mortgage is created in respect of any property, undoubtedly, an interest in the property is carved out in favour of the mortgagee. The mortgagor is entitled to redeem his property on payment of the mortgage dues. This does not, however, mean that the property ceases to be the property of the mortgagor. The title to the property remains with the mortgagor. Therefore, when a statutory first charge is created on the property of the dealer, the property subjected to the first charge is the entire property of the dealer. The interest of the mortgagee is not excluded from the first charge. The first charge, therefore, which is created under section 11AAAA of the Rajasthan Sales Tax Act will operate on the property as a whole and not only on the equity of redemption as urged by Mr. Tarkunde." In Central Bank of India v. State of Kerala [2009] 21 VST 505 (SC); [2010] 153 Comp Cas 497 (SC); [2009] 4 SCC 94, the question as to whether section 38C of the Bombay Sales Tax Act, 1959 and section 26B of the Kerala General Sales Tax Act, 1963 by which a first charge was created on the property of the dealer were inconsistent with the provisions contained in the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, fell for consideration. After reviewing all the decided cases on the issue, the Supreme Court answered the question in negative and held that the Parliament did not intend to give priority to the dues of private creditors over sovereign debt of the State. It was also observed that in the absence of any specific provision to that effect it is not possible to read any conflict or inconsistency or overlapping between the provisions of the DRT Act and Securitisation Act on the one hand and section 38C of the Bombay Sales Tax Act and section 26C of the Kerala General Sales Tax Act on the other and the non obstante clauses contained in section 34(1) of the DRT Act and section 35 of the Securitisation Act cannot be invoked for declaring that the first charge Page No: 346 created under a State legislation would not operate qua or effect the proceedings initiated by banks, financial institutions and other secured creditors for recovery of their dues or enforcement of security interest as the case might be. As could be seen from the above decisions, the statutory first charge held by the State has been consistently upheld by the courts. However, the contention of the learned counsel for the petitioner-bank is that section 16C of the APGST Act has to be read with section 17A and if so read, section 17A operates as an exception to the first charge created under section 16C in favour of the State. It is to be noticed that section 17A was inserted by Act 18 of 1985 with effect from July 1, 1985 and the same reads as under: "17A. Transfer to defraud revenue void.-where during the pendency of any proceeding under this Act, or after the completion thereof any dealer creates a charge on, or parts with the possession by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever of any of his assets in favour of any other person, with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax, or any other sum payable by the dealer as a result of the completion of the said proceeding or otherwise:

7 Provided that, such charge or transfer shall not be void, if it is made,- (i) for adequate consideration and without notice of the pendency of such proceeding under this Act or, as the case may be, without notice of such tax or other sum payable by the dealer; or (ii) with the previous permission of the assessing authority. Explanation.-In this section 'assets' means land, building, machinery, plant, shares, securities and fixed assets in banks to the extent to which any of the assets aforesaid do not form part of the stock in trade of the business of the dealer." A perusal of the above provision shows that the charge created by the dealer on his assets in favour of any other person with the intention to defraud the revenue shall be void. However, as per the proviso such charge or transfer shall not be void if it is made for adequate consideration and without notice of the pendency of such proceeding under APGST Act. Subsequently, section 16C has been inserted by Act 9 of 1999 with effect from April 6, 1999 providing for an absolute precedence to the arrears of tax under the APGST Act. Page No: 347 The object of insertion of section 16C has been explained in the Statement of Objects and Reasons of Act 9 of 1999 as under: "The collection of arrears of sales tax has been posing certain administrative problems. It is noticed that the property attached under Revenue Recovery Act could not be disposed of as it was hypothecated to either financial institutions or to others. In order to have a definite claim on the property, it is now proposed that the liability under the Sales Tax Act shall be the first charge on the property. Similar provision is available in the Rajasthan Sales Tax Act and it was upheld by the court." It is no doubt true that section 17A appears to have diluted the absolute precedence given to the arrears of tax under section 16C, however the principles of statutory interpretation require that the court in such circumstances must have regard to consequences and has to reject a construction that results in hardship, absurdity or anomaly or which leads to inconsistency in the system which the statute purports to regulate. (vide Principles of Statutory Interpretation by G.P. Singh). As held in State of West Bengal v. Union of India AIR 1963 SC 124, the court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute and it must compare the clause with the other parts of law and the setting in which the clause to be interpreted occurs. In Central Bank of India v. State of Kerala [2009] 21 VST 505 (SC); [2010] 153 Comp Cas 497 (SC); [2009] 4 SCC 94, the court considered the question whether the non obstante clauses contained in section 34(1) of the DRT Act and section 35 of the SARFAESI Act can have overriding effect over section 38C of the Bombay Sales Tax Act, 1959 and section 26B of the Kerala General Sales Tax Act which also contained non obstante clauses

8 and gave statutory recognition to the priority of the State's charge over the other debts. After an elaborate discussion, it was concluded that the DRT Act and SARFAESI Act did not create first charge in favour of the banks, financial institutions and other secured creditors and the provisions contained in section 38C of the Bombay Sales Tax Act, 1959 and section 26B of the Kerala General Sales Tax Act, 1963 are not inconsistent with the provisions of DRT Act and SARFAESI Act so as to attract non obstante clauses contained in section 34(1) of the DRT Act or section 35 of the SAR- FAESI Act. In the light of the legal position noticed above, we are unable to accept the contention of the learned counsel for the petitioner that section 17A should be read as an exception to section 16C of the APGST Act. If the Page No: 348 contention of the learned counsel for the petitioner is to be accepted the very purpose of insertion of section 16C would be defeated and it would virtually render section 16C otiose. It also appears to us that in the light of the Statement of Objects and Reasons of Act 9 of 1999 under which section 16A is inserted, the non obstante clause incorporated in section 16C is intended to exclude not only the other statutes but also the other provisions of the APGST Act. In Damera Ramakrishna v. Commercial Tax Officer [2005] 142 STC 515 (AP), cited by the learned counsel for the petitioner, the Division Bench of this court had considered a different issue relating to burden of proof under section 17A and did not go into the question as to whether section 17A operates as an exception to section 16 of APGST Act. Hence, the said decision in no way supports the petitioner's case. For the aforesaid reasons, the writ petition is devoid of any merit and the same is accordingly dismissed. No costs. Consequently the miscellaneous petitions, if any, pending in the writ petition shall stand closed. Page No: 349

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