Gujarat High Court
Geetaben J Patel vs The Assistant Sales Tax Commissioner & on 4 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/12665/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12665 of 2015
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GEETABEN J PATEL....Petitioner(s)
Versus
THE ASSISTANT SALES TAX COMMISSIONER & 1....Respondent(s)
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Appearance:
VIJAY H PATEL, ADVOCATE for the Petitioner(s) No. 1
MR VANDAN BAXI, AGP for the Respondent(s) No. 1
MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 04/12/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has challenged the action of the Sales Tax Department of the State Government in attaching her private property being a leasehold rights on plot No.346, Block-A, NU-3, Apana Nagar, Gandhidham with a superstructure thereon
2. Brief facts are as under:-
2.1 The petitioner purchased the said property by way of leasehold rights granted by the Kandla Port Trust for a period of 99 years under registered deed dated Page 1 of 4 HC-NIC Page 1 of 4 Created On Tue Dec 08 02:07:53 IST 2015 C/SCA/12665/2015 ORDER 31.12.1994. The case of the petitioner is that the source of the funds for purchase of the property was through her own earnings as a Director of a private company and other 'stri dhan', with which her husband had no concern. In other words, the petitioner claims to be the sole and exclusive owner of the property in question. 2.2 The petitioner's husband started timber business in the name of 'Patel & Company', proprietary concern, of which he was the sole proprietor in the year 1998. The husband of the petitioner also obtained registration from the Sales Tax authorities for such concern. Since there were sales tax, State as well as Central dues of the husband of the petitioner, the Department attached the property of the petitioner. No formal order was served to the petitioner. However, the petitioner came to know about the same when the petitioner tried to sale the property and the transfer was prevented by Kandla Port Trust on account of such attachment. The petitioner has thereupon filed this petition with a prayer to quash the action of the Sales Tax Department in attaching her property for the dues of the husband.
3. Respondent No.1 has appeared and filed reply and contended that for the Assessment Year 1999-00, the husband of the petitioner had to pay State sales tax dues Page 2 of 4 HC-NIC Page 2 of 4 Created On Tue Dec 08 02:07:53 IST 2015 C/SCA/12665/2015 ORDER of Rs.43.88 lacs (rounded off) and Central sales tax dues of Rs.62.02 lacs (rounded off). The assessment order was passed on 31.03.2001. Notice was issued for recovering such tax. Since the tax was not paid, attachment is made only qua share of the husband of the petitioner.
4. Having heard learned Counsel for the parties and having perused documents on record, we do not see any authority in law permitting respondent No.1 to attach the property of the petitioner for the dues of her husband.
Nothing has been brought on record to suggest that the property in question was purchased from the sources other than that of the petitioner herself. It is not the case of the Department that the sale transaction of 31.12.1994 was 'benami' transaction and that the husband of the petitioner had funded for purchase of the property. In any case, as noted, the sale took place on 31.12.1994 and the husband of the petitioner started his current business in the year 1998. The sales tax dues pertain to the Assessment Year 1999-00. Nothing has been stated in the affidavit in reply to justify the action of the Department in attaching the property of the petitioner for the dues of her husband. By merely stating that only qua share of the husband, the said property was attached, would nor further the case of the Department. This is in fact curious statement. It does not clarify whether the Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Dec 08 02:07:53 IST 2015 C/SCA/12665/2015 ORDER share referred to is that of the sales tax dues or of the interest in the property. If later is the case, there is nothing on the record to suggest that the husband had any right, title or interest in such property.
5. Learned Counsel for the petitioner correctly drew our attention to two judgments of Division Benches of this Court in cases of Jayesh Vadilal Parekh Vs. Commercial Tax Officer-TWO & Ors. in SCA No.2320 of 2014 dated 11.09.2014 and Jashiben Vishnubhai Patel Vs. Assistant of Sales Tax in SCA No.1144 of 2015 dated 30.04.2015, in which, under similar situation, the Court had quashed the action of the Department.
6. Mere reference to the powers under Section 48A of the Gujarat Sales Tax Act would not save the situation for the Department. Such powers can be exercised only where the facts so permit.
7. In the result, the petition is allowed. Attachment by the Sales Tax authorities on the said property in question of the petitioner is quashed.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) SHITOLE Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Dec 08 02:07:53 IST 2015