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2014 (12) TMI 1143 - HC - Benami PropertyPetition for direction to be made for lifting the order of attachment of property or not - Direction to be made for quantification of the stamp duty to be paid - The transfer of the property and registration of the sale deed transferring the title in the property to be allowed or not - Validity of transaction u/s 47 of the Gujarat Value Added Tax Act – Held that:- There is no explicit provision made under the GVAT Act as is provided under the IInd Schedule of the Income Tax Act, however, it is a well settled law that in the event of any dispute in relation to the title of any property, it is the civil court which shall have a jurisdiction as already held in Tax Recovery Officer v. Gangadhar Viswanath Ranade [1998 (9) TMI 1 - SUPREME COURT] - the suit property is a tenement, admeasuring 127.05 square metres, situated at Bhavnagar - The purchase was made by Mrs. Magiya on 29.06.1995 by a registered sale deed - tax dues of Mr. Deepak Magiya have been finalized somewhere in the month of October, 2009. The contention raised by the revenue that Mrs. Jayshreeben Magiya would have no funds of her own, is also not acceptable as she also possibly can have her ‘Stridhan’ or can own property inherited from her father - the provision of section 3 of the Benami Transactions Act makes it obligatory on the part of the person to prove otherwise when such property is purchased in the name of the wife as legal presumption favours the wife and unmarried daughter - such presumption can be rebutted by the person who alleges by production of evidence or other material before the court, that the property was purchased for the benefit and interest of the person other than the wife and the unmarried daughter - unless the presumption gets rebutted by successfully producing cogent evidence that the suit property was purchased benami by the husband / father for his own benefit, such presumption would continue. The property had been transferred in the name of the present petitioner by way of a registered sale deed on payment of due consideration and, this was done in absence of any charge, registered with the office of the Sub Registrar in respect of the said property - Prima facie, it shall have to be termed as the bona fide purchase of the immovable property for value without notice - in absence of any explicit provision under the GVAT Act and in the wake of the fact that the outstanding dues of Mr. Deepak Magiya, nearly to the tune of ₹ 5 crores, having been finalized somewhere in the year 2009 for the assessment years 2005-06, 2006-07 and 2007-08 - serious question of limitation also would stare in the face of the respondent – the Court chooses not to adjudicate on disputed questions of title which shall have to be necessarily decided by the court of law in the civil suit rather than concluding on this aspect in the present petition - the respondents ae allowed to take recourse if permissible under law and for both the parties to argue all these aspects at an appropriate stage before appropriate forum – thus, the direction issued by the respondent No.1 to the respondent No.2 for the attachment of the impugned property is set aside - respondent No.2 is also further directed to permit the execution of the sale deed in favour of the proposed purchaser – Decided in favour of petitioner.
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