Hemant Gupta, J. - (1.) CHALLENGE in the present writ petition is to the threat of the respondents in selling the secured assets, land measuring 10 kanals, of M/s. Sambhav Textile Ltd., Ludhiana (for short "the company"). The company availed credit facilities from the petitioner and mortgaged land measuring 10 kanals situated at village Khwajeke Tehsil and District Ludhiana to secure the loan advanced to it. Since the company defaulted in making payments amounting to Rs. 8,95,80,690.51 paise as on 30th June, 2006, the petitioner initiated the proceedings under s. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act'). The petitioner also served possession notice dt. 9th Feb., 2007 to the borrowers and to the general public before taking the possession of the properties. The petitioner took possession in terms of the said possession notice and put the property to sale during the pendency of the present writ petition.
(2.) A perusal of the written statement shows that the property i.e., land and building of the factory was provisionally attached under s. 281B of IT Act, 1961 on 14th Dec, 2007 with the prior approval of the CIT -III, Ludhiana. It was on the basis of said order, the Revenue claimed a preferential right to realise its dues being crown debt. In the written statement it is pointed out that the assessment was completed under s. 144 of the IT Act, 1961 for a total sum of Rs. 2,45,67,820 on account of difference in the net profit between the audited balance sheet filed with the Department and with the RoC and Rs. 52,86,610 on account of profit earned on unaccounted sales. The penalty proceedings were also initiated and finalised on 18th June, 2008. It is asserted that Department is well within its right to recover the income -tax dues from the assessee as the dues of Government of India.
(3.) LEARNED counsel for the petitioner relied upon judgment of Hon'ble Supreme Court in UTI Bank Ltd. vs. Dy. CCE (Writ Petn. No. 39536 of 2005, decided on 20th Dec., 2006), to contend that the secured creditor has a preferential rights as against the crown debt. The crown debt has priority only amongst unsecured creditors. Reference has also been made to the judgment of Hon'ble Supreme Court in Union of India & Ors. vs. Sicom Ltd. & Anr. : (2009) 2 SCC 121.;