ROM INDUSTRIES LTD Vs. STATE OF J&K

JUDGEMENT

(1.) PETITIONER , M/s Rom Industries Limited, has preferred this petition seeking to quash the attachment order No.740 -741/DCR dated 13 -06 -2003 passed by respondent 3, by issuing a writ in the nature of certiorari and further commanding the respondents to open the locks of the factory premises and allow the petitioner to run the Unit and earn livelihood. The case of the petitioner as disclosed in the petition is that the withdrawal of the exemption to the petitioner -Company by the respondents has rendered his Company sick. The petitioner approached the Board for Industrial and Financial Reconstruction (hereinafter for short referred to as the BIFR ) by making a reference under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter for short referred to as the SICA, 1985 ) for declaring the Unit as sick industrial Unit and taking steps for revival and rehabilitation of the Unit. The reference made by the petitioner -Company, however, came to be rejected by the BIFR, against which appeal has been preferred before the Appellate Authority for Industrial and Financial Reconstruction (hereinafter for short referred to as the AAIFR ). It is further stated that during the pendency of proceedings before the AAIFR, the respondents assessed the petitioner for payment of sales tax on the basis of the returns filed in respect of the sale of its products. According to the petitioner, the action of the respondents in raising demands and issuing recovery certificates in respect of the sales tax against the Petitioner -Unit and property by way of attachment is in violation of the provisions of section 22(1) of the SICA, 1985. That it was well within the knowledge of the respondents that appeal against the order of rejection of the reference of the Petitioner -Company is pending before the AAIFR when they initiated the process of recovery by attachment of the property of the Unit and their action is, thus, illegal and unsustainable in law.

(2.) THE specific stand of the respondents in their demurrer is that after the reference made by the petitioner Company before the BIFR to declare the Unit as sick industrial Unit has been rejected and there being no direction issued by the BIFR or the AAIFR restraining the respondents from assessing the Unit for the purpose of sales tax, raising a demand and effecting the recovery by adopting coercive methods, the recovery of arrears of sales tax by attachment of the Unit is in accordance with the provisions of the sales tax. It was further contented by the respondents that the assessment has been based on the returns filed by the Petitioner -Firm, which has collected tax on the sale of its products. That the petitioner -Company is under an obligation to deposit the tax, which it has collected on the sale of its products. It is further contended that the action of the respondents by attachment of the property and recovery of sales tax is protected within the law.

(3.) I have heard the learned counsel appearing for the respective parties and considered their rival contentions in context with material placed on record.