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Jafco Traders Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Civil Miscellaneous Writ No. 3130 of 1974
Judge
Reported in[1975]35STC553(All)
AppellantJafco Traders
RespondentState of U.P. and ors.
Appellant Advocate Swami Dayal, Adv.
Respondent Advocate V.K. Tewari, the Standing Counsel
DispositionPetition allowed
Excerpt:
- - the order passed by the recovering authority directing the supurdar to produce the machines at the appointed time and date for auction is clearly wrong and deserves to be quashed......impugned order is quashed and the respondents are directed not to disturb the petitioner's possession over the machines which are affixed in the factory so long as the petitioner's lease rights continue. the petitioner would be entitled to costs.
Judgment:

Satish Chandra, J.

1. A firm, named the Indian Leather Board Industries, carried on the business of manufacturing leather board in a factory. On 15th January, 1973, it executed a lease of the factory for a period of 11 months in favour of the petitioner. The lease deed provided for renewal for five years. Accordingly, the petitioner renewed the lease in November, 1973, for another period of 11 months and we are informed that it was further renewed in November, 1974, for a further period of 11 months. In the result, the petitioner has an existing lease of the factory in his favour.

2. It appears that the Indian Leather Industries had incurred some sales tax liability which they had to clear. The sales tax department launched recovery proceedings against the defaulter. In the course of these proceedings three machines fixed in this factory were attached and were placed in the custody of a Supurdar. On 5th April, 1974, the tax recovery officer directed the Supurdar to bring the attached machines at the appointed time and date to the place of auction. In consequence, the Supurdar wanted to take away the machines. Aggrieved, the petitioner filed the present writ petition. His case is that these machines are permanently fixed on a deeply set foundation and cannot be removed or moved easily, They would have to be dismantled. The petitioner's case further is that he is the lessee of the machines. He not having defaulted any payment of any dues, his rights, title and interest in the machines cannot be attached or sold. At the most the department can sell the title, right or interest of the lessors who are defaulters in order to recover the sales tax dues from them. In our opinion, the petitioner's grievance against the attempt of the respondents to remove the machines so as to sell them outright is justified. It is apparent that the petitioner is a lessee, whose lease is still in force. He is entitled, under the lease, to be in exclusive possession of the machines and use them for his business purposes. The machines were attached after the petitioner had acquired leasehold rights in the machines. The attachment and sale proceedings will be subject to the petitioner's right, title and interest in them. The petitioner's case is that the attached machines are permanently fixed on solid foundations, which are 8' to 10' deep. This fact is disputed in the counter-affidavit. But a perusal of the description of the machines shows that they cannot be just removed. One of the machines is of 40 H. P., the other of 15 H. P. and the third is of 5 H. P. These machines cannot be treated as ordinarily movable articles, but the fact whether the machines are easily removable or not is hardly material. So long as the petitioner has his leasehold rights intact in the machines they cannot be sold outright and their possession cannot be given to the purchaser. The order passed by the recovering authority directing the Supurdar to produce the machines at the appointed time and date for auction is clearly wrong and deserves to be quashed.

3. In the result, the petition succeeds and is allowed. The impugned order is quashed and the respondents are directed not to disturb the petitioner's possession over the machines which are affixed in the factory so long as the petitioner's lease rights continue. The petitioner would be entitled to costs.


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