Nisha Sunil Shah vs State Of Gujarat

J.B. Pardiwala, J

By this writ-application, the writ-applicant has prayed for the following reliefs:-

17(A) be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ or order directing the learned Respondents to forthwith withdraw charge entered under the Vat Act on property located at 12/1, House No. 3967 and 3967/1, Ashabaug Co-operative Housing Society, Navsari;

(B) Pending notice, admission and final hearing of this petition, be pleased to direct the learned Respondents to forthwith withdraw charge entered under the Vat Act on property located at 12/1, House No. 3967 and 3967/1, Ashabaug Co-operative Housing Society, Navsari and in any case the learned Respondents may be restrained from taking further coercive steps with respect to the property in question;

(C) Ex parte ad interim relief in terms of prayer B may kindly be granted;

(D) Such further relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray.

The writ-applicant claims to be a housewife, residing at 70, Ashabaug Society, Dudhiya Talav Road, Navsari, State of Gujarat. The husband of the writ-applicant is a Proprietor of the proprietary concerned running in the name of M/s. Navpad Chemicals. The proprietary concerned is engaged in the business of trading in chemicals. The said firm is duly registered under the VAT Act.

It appears that the writ-applicant along with her husband jointly owned the above referred residential property. On 25/06/2015, the husband relinquished his share in the property in favour of his wife. This according to the respondents was a fraudulent transfer within the meaning of Section-47 of the Act. It appears that the residential property referred to above came to be attached by the authority concerned. It also appears that against the assessment order, the first appeal is pending before the appellate authority.

It is pointed out by Mr. Sheth, the learned counsel appearing for the writ-applicant that the recovery for all the assessment years has been stayed by the first appellate authority. Mr. Sheth submitted that in such circumstances, the attachment should be removed.

This writ-application is fairly opposed by Ms. Maithili Mehta, the learned AGP appearing for the respondents.

Whether the relinquishment of the share in the attached property by the husband in favour of the writ-applicant could be termed as fraudulent transfer or not - will be looked into by the first appellate authority. The fact remains that as on date the first appeal is pending and the matter is being looked into on the merit. The recovery has also been stayed.

In view of the above, let Rule be issued to the respondents returnable on 16/10/2019. Ms. Maithili Mehta, the learned AGP waives service of notice of rule for and on behalf of the respondents.

Pending the final adjudication of this petition, the attached property shall not put to auction.

At this stage, Mr. Sheth clarified that the first appellate authority cannot go whether the issue of fraudulent transfer within the meaning of Section-47 of the Act or not. According to Mr. Sheth, for the purpose of declaring the transfer to be void within the meaning of Section-47 of the Act, the Department may have to prefer a civil suit in the competent Civil Court and seek an appropriate declaration in that regard. It is further pointed out that pending writ-application shall not preclude the first appellate authority in hearing the appeal and deciding the same on merit.