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Gujarat High Court · body

2018 DIGILAW 710 (GUJ)

ROHINTON PANTHAKI v. UNION OF INDIA

2018-05-10

AKIL KURESHI, B.N.KARIA

body2018
ORDER AKIL KURESHI, J. 1. Petitioner’s main prayer is for declaration that there is no charge of the Central tax authorities on the petitioner’s immovable property in the nature of a Flat No. 6/A, situated on 6th Floor, Usha Kiran Flats, Khanpur, Ahmedabad. The peculiar facts in which the petitioner has approached this Court are as under : 2. Petitioner himself is aged about 70 years and we are informed that he is bad-ridden due to various ailments. He had inherited the said property from his mother, who expired in the year 2016. According to the petitioner, the mother had acquired such property from her own funds way back in the year 1973. The petitioner’s father was engaged in a small time business run in the name of a proprietary concerned – M/s. Refrigeration Agency. His father expired in the year 1999. The petitioner is not aware about any dues of his father’s proprietary concern towards the respondent-tax authorities. In any case, the case of the petitioner is that the property in question having been acquired by the mother, long before the father started the business from her own sources, in any case, the Department cannot utilize such property for the dues of the father; even if there are any outstanding. 3. The petitioner’s problem revolves around a communication dated 10th June 1996 issued by the Superintendent of Central Excise, Division VI, Ahmedabad addressed to the Chairman/Secretary of Kanchan Janga Coop Housing Society Limited, which is a society of members of Usha Kiran Building. In such communication, he had stated as under:- “Kindly refer to this office letter of even no. dated 15th February 1994 and your reply thereto vide letter dated 24th February 1994 and 12th July 1994. Inspite of repeated reminders by this office, you have not furnished the particulars of payment made by Smt. Dinooben K Panthaki, at the time of purchasing the Flat No. A/6, Sixth Floor in your Cooperative Housing Society. As the matter is delayed abnormally, you are requested to look into the matter personally and reply may be given by return of post.” 4. The petitioner is not aware about the response which the Society may have given to such communication. The petitioner however contends that other than the said letter, the Department has taken no further steps either conveying the dues of the father of the petitioner or seeking recovery thereof. 5. The petitioner is not aware about the response which the Society may have given to such communication. The petitioner however contends that other than the said letter, the Department has taken no further steps either conveying the dues of the father of the petitioner or seeking recovery thereof. 5. We, of course, also noticed a letter dated 26th September 2013 written by the Superintendent of the Central Excise to the mother of the petitioner conveying the following : “The records of this office show arrears of Central Excise against the captioned firm. You are requested to let this office know what is your relationship with late Shri K.R Panthaki. You are also requested to let this know the present status of the legal heirs and any movable/immovable property owned by them to this office.” 6. The petitioner needs to dispose of the said immovable property to pay his medical bills and for his old age sustenance. He was, however, informed by the Chairman of the Society that in view of prohibitory order issued by the Central Excise Department, the property cannot be transferred to the purchaser. It is under these circumstances that the petitioner has filed this petition for a declaration of the nature noted earlier. 7. In response to the notice issued, the respondents have appeared through learned advocate Mr. Diveshwar, however, despite sufficient time being granted, was unable to place any material suggesting outstanding dues of the father of the petitioner. He also could not produce any order giving rise to such liabilities. For various reasons, the petitioner’s property must be cleared of the Department’s clutches. Firstly, as of now, there is no material suggesting any outstanding dues of the father of the petitioner. No order of assessment giving rise to any such liability is available. Secondly, the origination of acquisition of the property in his hands is from mother of the petitioner who acquired it way back in the year 1973. There is no material on record suggesting that the same was a benami purchase. Thirdly, the Department has not even prima facie established that for recovery of any dues of the father of the petitioner, such property can be utilized. There is no material on record suggesting that the same was a benami purchase. Thirdly, the Department has not even prima facie established that for recovery of any dues of the father of the petitioner, such property can be utilized. The communication dated 26th September 2013 from the departmental authorities to the petitioner’s mother was only in the nature of general inquiries, in which a fleeting reference to the outstanding dues of her husband is made, without there being any further specifications. The communication dated 10th June 1996 from the Superintendent of Central Excise to the Chairman/Secretary of the Society was also in the nature of general inquiries and cannot form shape of any prohibitory order. Under the circumstances, it is declared that there is no attachment of the respondents-tax authorities on the above mentioned immovable property of the petitioner and only on this ground, the Cooperative Society concerned shall not prevent its transfer, if the petitioner sales the same, following the rules and regulations and bye laws of the Society. Petition stands disposed of accordingly.