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TMI Blog2025 (3) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... legal heirs does not make that nominee the exclusive owner holding full title to the property and the nominee holds it in trust of all the legal heirs as per applicable succession rules. As per the averments in petition itself (paragraph no. 3.3) late Madhusudan has passed away 'intestate'. Therefore, the laws of succession would squarely apply. The affidavit in reply filed by the Respondent State is not countered by filing any rejoinder. From the said affidavit, it is clear that the arrears under the said Act are in respect of period FY 2008-09 and FY 2012-13. If this period is considered along with dates of earlier notices issued, it is evident that the alleged transfer in favour of the Petitioner by her sons is subsequent in point of time, being effected in June 2017 and therefore, undivided share of Mr. Jayesh in the title therein is hit by Section 38 of the said Act. Whether the said transfer was with 'an intent to defraud revenue' is a disputed question of fact, that will have to be considered in accordance with law, including enquiry under Section 38 of the said Act. The affidavit in reply filed by the Respondent State is not countered by filing any rejoinder. From the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng behind the Petitioner (widow) and three sons namely Mr. Pankaj, Mr. Jayesh and Mr. Prashant. On the demise of late Madhusudan, necessary application under Form No. 15 was made to the said Co-Operative Housing Society for membership and transfer of share and interest in Petitioner's name. Along with the said application, a duly notarised affidavit, an indemnity bond, undertaking and declaration were also given. Out of these documents, only the affidavit dated 30/06/2017 is signed by the Petitioner and her three sons. It is stated in paragraph 4 of the said affidavit that they have no objection for accepting the Petitioner as member of the society and for transferring all the shares held by late Madhusudan and his interest in the said flat to the Petitioner alone. The other documents are signed by the Petitioner only. The said Cooperative Housing Society thereafter transferred the share certificate (noting shares of the late Madhusudan) in favour of the Petitioner on 25/02/2018. Thus as on date, the share certificate is in Petitioner's exclusive name. In November 2024, when the Petitioner sought to transfer her right, title and interest in the said flat, the society brought to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that as many as three times, notices were issued on 09/10/2012, 13/03/2013 and 03/02/2017 to Mr. Jayesh who is a proprietor of M/s. Sai Electricals who is in arrears of Rs. 8,96,776/- and Rs. 18,55,799/- in respect of the assessment for the periods financial years 2008-09 and 2012-13 under the said Act. In response to none of these notices, Mr. Jayesh or his representative attended and the Department and ex-parte orders were required to be passed on 09/04/2013, 29/03/2017 and 30/11/2018. He submitted that even in the year 2023, when the Government declared Amnesty Scheme, a courtesy letter was issued on 10/05/2023 to Mr. Jayesh, however there was no response. It is submitted that in such circumstances, various orders are passed, however the outstanding amounts are not paid and therefore, it has resulted in issuing the impugned order. He submitted that in the said flat, the defaulter Mr. Jayesh has share and therefore it can be attached to that extent. He fairly conceded that the impugned order is limited to the proportional right, title and interest of Mr. Jayesh and not to the entire flat. He submitted that by transferring the membership by joint application of the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld squarely apply. The document specifically relied upon by the learned Counsel for the Petitioner i.e. affidavit executed by the Petitioner and her three sons including Mr. Jayesh, especially paragraph 4 thereof, will not help the Petitioner for the simple reason that it only indicates transfer of membership right in the society exclusively in favour of the Petitioner, at the best. This document is executed on a non judicial stamp paper of Rs. 100/- and is an unregistered document. Therefore, for the Petitioner to acquire exclusive title to the said flat, a registered document of gift or relinquishment deed or such other transfer permitted under the Transfer of Property Act, is necessary. The affidavit relied upon by the Petitioner (page 40-43) cannot be construed as transfer of title exclusively in favour of the Petitioner in the teeth of Section 17 of the Registration Act, 1908. Therefore, it is obvious that the title in the said flat, after the death of late Madhusudan, devolves upon all the four legal heirs i.e. the Petitioner and her three sons including Mr. Jayesh. Therefore the extent of share of Mr. Jayesh in the title of the said flat can be attached. 9. The affidavit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faulter has undivided and proportional share. Therefore the said judgment will not advance the case of the Petitioner. 13. So far as reliance placed on the Judgment of Commissioner Vs. Anilaben (supra) is concerned, the said Judgment was delivered by a Division Bench of Gujarat High Court considering the following question: "Whether in law and on facts when the assessee received possession of the flat in October, 1981, and sold the same on December 4, 1982, the assessee is entitled to benefit of Section 80T of the Income-Tax Act, 1961?" It was in respect of claim of long term capital gain and claiming deduction under Section 80T of the Income Tax Act, 1961 for it. Therefore, it is clear that the issue under consideration in the said judgment was completely different and not comparable to the facts of the present case. 14. Lastly, so far as reliance upon the cases of T.R.O. Vs. Gangadhar (supra) and P.K. Kunjamma (supra) in support of argument about requirement of enquiry is concerned, it is already indicated above that since the Respondent State has fairly conceded that the attachment order would apply to only proportional share of Mr. Jayesh, the said judgments would not adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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