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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 ..... rule making power of the State Government under Section 328 of the Maharashtra Land Revenue Code, 1966 ('the Code' for short). By the said impugned Order, the total/proportional right, title and interest of the Petitioner's son Jayesh Madhusudan Panchal, a proprietor of M/s. Sai Electricals in Flat No. 201, Hayat Palace Co-operative Housing Society Limited, Patel Compound, Pushpa Park, Daftary Road, Malad (West), Mumbai-400097 ('the said flat' for short), is attached for non payment of tax dues by said Mr. Jayesh. The Petitioner is also seeking directions to the Respondents to withdraw the said impugned order and restrain them from taking any steps in furtherance thereof. 2. At the outset it is necessary to note that neither rule making p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 her knowledge the impugned order of attachment. According to the Petitioner, the said attachment order is never served upon her. The Petitioner was shocked to know about attachment of the flat for alleged outstanding demand of tax and interest from one of her sons, namely Mr. Jayesh. The Petitioner claims to be completely clueless about business activities of her son Jayesh. The Petitioner and her other two sons, namely Mr. Prashant and Mr. Pankaj have met the Respondent Authorities and also filed reply contending inter alia that the Petitioner is undisputed sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Recovery Officer v/s. Gangadhar Vishwanath Ranade [1998] 100 Taxman 236 (SC). (iv) P.K. Kunjamma v/s. Tax Recovery Officer [1997] 94 TAXMAN 447 (KER) 5. The learned Assistant Government Pleader on the other hand, by referring to Affidavit-in-Reply dated 19/09/2024 filed by the concerned Joint Commissioner of Sales Tax, submitted 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awal and Ors., 2012(4) Mh. L. J. 370 and Gopal Vishnu Ghatnekar v/s. Madhukar Vishnu Ghatnekar 1982 Mah. L.J. 65. 6. Pursuant to the order of this Court dated 01.10.2024, Mr. Jayesh Madhusudan Panchal (son of the Petitioner) has filed an affidavit dated 14.10.2024 stating that he has suffered heavy losses in his business and has no substantial assets or bank balance and has currently taken up a job as driver. It is stated that the said flat belongs exclusively to his mother and no steps should be taken against the said flat. 7. We have considered the rival submissions and perused the record. 8. Section 34 (1) (v) of the said Act empowers the Respondent No. 1 to perform duties of Tahsildar under the Code, for the purpose of effecting rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered 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 in reply filed by the Respondent State is not countered by filing any rejoinder. From the said affidavit, it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgments relied upon by the learned Counsel for the Petitioner. Reliance placed on the case of Adityaraj Builders (supra), especially paragraph 43 thereof, is clearly misplaced in the facts and circumstances of the present case. In the said case, what was under consideration was a question whether separate stamp duty can be levied on Permanent Alternate Accommodation Agreement (PAAA) when the Development Agreement executed by the society with the builder is already stamped. In that context, the co-ordinate Bench of this Court has explained the concept of sale of membership and its connection to right to hold, occupy, possess and enjoy the immovable property. The context of the present case is completely different, being attachment of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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