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Judgment
This writ application is to quash the notice dated 5.4.2002 under Annexure-1.
The brief fact of the case of the petitioner -Corporation is that loan had been advanced in favour of opposite party no.4 for establishing a rice
mill, but the loanee could not be able to repay the loan dues as a result of which the outstanding dues of the petitioner-Corporation on opposite
party no.4 becomes Rs.47,15,611.09. In spite of repeated notices, opposite party no.4 could not repay the dues of the petitioner-Corporation,
ultimately the petitioner took over the industrial unit on 13.3.2002 in exercise of the powers conferred under Section 29 of the State Financial
Corporation Act, 1951 (hereinafter to be referred to as ""the Act"", in short), the Corporation sold the assets of opposite party no.4 in public
auction to one Ajay Kumar Agarwala, opposite party no.5 for an amount of Rs.29.25 lakhs with down payment of Rs.10.25 lakhs subject to the
usual term of sale/ loan agreement. Opposite party no.4 was a defaulter under the Orissa Sales Tax Act and was having arrear dues of
Rs.15,46,097.00 under the Orissa Sales Tax Act. The arrear tax liability of the defaulter unit, the opposite party no.4, was not within the
knowledge of the petitioner-Corporation at the time of taking over possession. The opposite party no.2, the Sales Tax Officer served a notice
dated 3.4.2002 on the Branch Manager, OSFC, Sambalpur Branch under Section 13(a) of the Orissa Sales Tax Act and under Rule 32(a) of the
Orissa Sales Tax Rule asking the petitioner to pay the tax liability of the dealer, opposite party no.4. Further, opposite party no.2, the Sales Tax
Officer vide notice dated 5.4.2002 directed the opposite party no.3, Branch Manager, Union Bank of India, Sambalpur to pay the sales tax dues
from the petitioner''s account and attach the Bank account of the petitioner. According to the petitioner, the liability of arrear tax can be fastened
on the dealer and on transfer of the ownership of the units of the dealer, the transferee becomes liable for arrear tax. The provisions contemplated
under Section 19 of the Orissa Sales Tax Act clearly provide that the transferor of ownership of the business and the transferee are liable to pay
the arrear sales tax. The provision under Section 19(b) indicates that where the business in respect of which tax is payable is carried on by or in
charge of any trustee, tax shall be recoverable from the trust. On this background, this writ application has been filed.
While on the other hand, learned counsel representing the Sales Tax Department has submitted that the notice as contained in Annexure-1 has
been issued in the light of the order passed by this Court in OJC No. 7796 of 1993, which was decided on 16.1.2002 holding therein that there
shall be first charge on the property of the dealer or such person as the case may be, as per the provisions of the Sales Tax Act, and taking into
consideration the judgment passed by this Court, notice under Section 13(a)(b) of the Orissa Sales Tax Act has been issued and in consequence
thereof, order has been passed on 6.4.2002 directing the petitioner-Corporation to pay into the Government treasury within seven days of receipt
of notice if the money is due from him and as such, the authorities in the light of the proposition laid down by this Court have taken the decision.
Hence, the same needs no interference by this Court.
We have heard the learned counsel for the parties and have gone through the documents available on record.
We have gone through the judgment rendered by this Court in OJC No. 7796 of 1993. The fact leading to the said case was that the
Corporation held a mortgage over the unit belonging to M/s.Indo-East Extractions (Private) Limited located at Bhadrak. In enforcement of its
mortgage and in exercise of power under Section 29 of the Act, the Corporation took over the unit. In exercise of power conferred under Section
29(1) of the Act, the Corporation sold the industrial concern. It was purchased by M./s.Sreeram Extractions (Pvt.) Ltd., at the time of taking over
the industrial concern under Section 29 of the Act, there was liability of sales tax upon M/s. Indo-East Extraction Pvt. Ltd. The Corporation sold
the aforesaid unit in exercise of power conferred under Section 29 of the Act. The Commercial Tax Authorities had issued notice to the
Corporation calling upon it to discharge the liability of the defaulter towards sales tax. The Corporation not having exceeded to its request and not
having responded to the notice, the Commercial Tax Officer, Bhadrak Circle issued a notice calling upon the Corporation to credit the Sales Tax
Officer the dues of Rs.17,47,880/- being the demand for sales tax raised against the defaulter for the period from 1982-83 to 1984-85 and
outstanding as on the date of demand. The Sales Tax Officer had also issued notice to the Branch Manager, Central Bank of India, the
Corporation''s banker to credit forthwith a sum of Rs.17,47,880/-by way of draft in favour of the Sales Tax Officer and the said decision of the
sales tax authorities was challenged before this Court in the said writ application. A coordinate Bench of this Court after taking into consideration
the ratio laid down by the Hon''ble Apex Court in the cases of State Bank of Bikanir, Jaipur v. National Iron and Steel Rolling Corporation, 96
STC 612 and Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. and others (2000) 5 SCC 694 referring to Karnataka Land Revenue Act,
held that the principle of priority or precedence of Crown debt was law in force in British India and was law that was enforceable under the
Constitution and hence going by that principle, the Crown''s or State''s right to recover the amount due to it, is to be given priority over the
mortgagee''s right even though the mortgage was earlier in point of time. This Court has also taken into consideration the judgment rendered by the
High Court of Rajasthan in the case of Rajasthan State Industrial Development and Investment Corporation Ltd. v. State of Rajasthan, AIR 1995
Rajasthan 219 in which it was held that the liability to sales tax for which a first statutory charge was available to the State, would prevail over the
rights of the mortgagee even though the mortgage was first in point of time and accordingly, this Court has refused to interfere with the decision of
the Sales Tax Officer by which demand of Rs.17,47,880/- was directed to be paid by the Orissa State Financial Corporation in the Government
treasury.
The fact of the case in hand is similar to the fact of the case in O.J.C No. 7796 of 1993 since in this case also the loan was advanced in favour
of opposite party no.4 for establishing a rice mill after availing loan from the petitioner-Corporation, could not able to repay the loan dues, as a
result of which the outstanding dues of the petitioner-Corporation has become Rs.47,15,611.09 and when in spite of repeated notice issued from
the office of the petitioner-Corporation, the opposite party no.4 could not repay the loan dues, ultimately the Corporation took over of the
industrial unit on 13.3.2002 and by exercising its jurisdiction conferred under Section 29 of the Act, sold it out in faovur of one Ajay Kumar
Agarwala by way of public auction. At that juncture, the sales tax authorities had issued notice upon the Corporation asking the petitioner-
Corporation to deposit the tax liability of opposite party no.4 by depositing the default amount in the Government treasury vide notice dated
5.4.2002, which is impugned in this writ application. The contention raised by the learned counsel representing the petitioner-Corporation that
since the property has already been sold out in faovur of opposite party no.5 and as such, the Sales Tax authorities ought to have asked the
opp.party no.5 to clear up the sales tax liability by depositing it in the Government treasury and no liability can be inflicted upon the petitioner-
Corporation since the property in question is not in its possession. This argument is not acceptable after the judgment has been delivered by this
Court in OJC No. 7796 of 1993 wherein in similar facts and circumstances, this Court after taking into consideration the judgments rendered in the
cases of National Iron and Steel Rolling Corporation (supra), Bhikhabhai Prabhudas Parekh and Co. (supra) and Rajasthan State Industrial
Development and Investment Corporation Ltd. (supra), has been pleased to hold that the Corporation has converted into money assets over which
the Crown has a first charge, the Sales Tax Officer has called upon the Corporation to satisfy the sales tax dues first and as such, the contention of
the petitioner that the sales tax liability can be realized from the opposite party no.4, is not worthy to be accepted.
We, after taking into consideration the judgment rendered by this Court in OJC No. 7796 of 1993 basing upon which the Sales Tax authorities
have taken action against the petitioner-Corporation, are not inclined to interfere with the decision as contained in the notice dated 5.4.2002 vide
Annexure-1. Accordingly the writ application deserves no merit and the same is accordingly dismissed.