Gujarat High Court
Chetna Vijay Shah vs State Of Gujarat & 2 on 22 September, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/SCA/14823/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14823 of 2017
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CHETNA VIJAY SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
UCHIT N SHETH, ADVOCATE for the Petitioner(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 22/09/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Case of the petitioner is that he purchased a Flat No. 1005/B, Walkeshwar Chandanbala, Co-operative Housing Society Ltd., Malabar Hill, Mumbai, from its erstwhile owners Mrs. Dharmisthaben Shah and Mr. Sureshchandra Shah under a registered sale deed dated 22.04.2016 by paying sale consideration of Rs. 7.07 crores. Before executing the sale deed, advertisements were issued in the two news papers calling for objections, if any. No objections were received at that time. Later, the department wrote to the society on 22.04.2016 objecting to the society granting no objection certificate for transfer of the said property in name of the petitioner-purchaser Page 1 of 3 HC-NIC Page 1 of 3 Created On Mon Oct 02 03:34:14 IST 2017 C/SCA/14823/2017 ORDER since according to the department, the sellers are the partners in a firm which has not paid sales tax and central sales tax dues of Rs. 7,61,91,462/- plus interest and penalty.
2. Learned counsel Mr. Sheth submitted that if the department wishes to invoke section 47 of the Value Added Tax Act, it has to file a suit and cannot be unilaterally declared the sale as void. Referring to section 48 counsel submitted that, no charge was registered in the Government records nor the department raised any objection when the petitioner published public notice before purchasing the property. The petitioner has paid sizeable amount by way of sale consideration through cheque payments. The petitioner is, thus, a bona fide purchaser for value without notice.
3. On the other hand, learned AGP submitted that the erstwhile owners have transferred the property to defraud the Government revenue and therefore, in terms of section 47 of the VAT Act, the sale is void.
4. Rule returnable on 08.12.2017. By way of interim relief, it is provided that:
(i) The society shall consider the request of the petitioner for transfer of the shares of the said property in his name ignoring the objection of the department;
(ii) Even if shares are so transferred in the name of the Page 2 of 3 HC-NIC Page 2 of 3 Created On Mon Oct 02 03:34:14 IST 2017 C/SCA/14823/2017 ORDER petitioner, the same would be subject to outcome of this petition. Mere transfer of the shares would not create equity in favour of the petitioner;
(iii) On the basis of the purchase of flat and if shares are transferred in the name of the petitioner, the petitioner would be entitled to occupation, use and enjoyment of the said property and also carry out repairs and modifications but shall not be entitled to sale, transfer, lease or mortgage the property or in any other manner, create any charge thereon or part with the possession of the property.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) Jyoti Page 3 of 3 HC-NIC Page 3 of 3 Created On Mon Oct 02 03:34:14 IST 2017