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TMI Blog2019 (9) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-306 measuring 405 sq yards at Gehlewal, Major Sham Lal Road, Ludhiana." 2. Brief facts of the case:- (a) That the Assistant Excise and Taxation Commissioner, Ludhiana-I, lodged a complaint bearing no. 664 dated 18.07.2013 before the P.S. Division NO. 5, Ludhiana, alleging that, M/s Jaldhara Exports, Ludhiana having VAT no. 03472071375 has shown export of readymade garments to the tune of Rs. 33.36 crores to Bangladesh during the Financial year 2012- 13. On this basis the firm claimed VAT refund of Rs. 1.56 crores from the Government. However, on enquiry with the Custom Authorities, Petrapole Land, West Bengal had confirmed that all the shipping bills produced by the firm were found to be forged and fabricated. (b) That on the basis of above complaint, P.S. Division No. 5, Civil Lines, Ludhiana City registered an FIR bearing No. 126 dated 26.07.2013 u/s 177, 420,465,467,468, and 471 of Indian Penal Code, 1860 against Shri Raman Kumar Garg proprietor of M/s Jaldhara Exports, Ludhiana. (c) That after investigating the matter the police authorities filed a Challan under section 173 of Cr. P.C. 1973 for the offences u/s 177,420,465,467,468 and 471 of Indian Penal Code, 1860 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority has confirmed the PAO on 20.10.2016. 3. The case of the appellant:- (a) The present appeals have been preferred by Sh. Rajeev Jain, Smt. Kanchan Bala & Monika Jain, Appellants against the impugned notice dated 9.11.2016 wherein it was asked to vacate the property in question. The notice was issued stating therein that the property in question is owned by Smt. Seema Garg w/o Sh. Vinod Kumar Garg. (b) It is the contention of the appellants are that they were not a party before the adjudicating authority though they are the owner of portion of the property in question. (c) It is the case of the appellants are that the property in question measuring 405 sq. yds. Was owned by one Mrs. Seema Garg W/o Vinod Garg which was sold in 5 portions. 96.5 sq yds., each was purchased by these appellants namely Sh. Rajeev Jain and his wife Monika Jain, 90 sq. yds was purchased by one Kanchan Bala and 102 sq. yds was purchased by one Sanjeev Kumar who subsequently sold his portion to Monika jain by registered sale deed 09.03.2016 from Smt. Seema Garg through the power of attorney holder Sh. Vikas Jain and taken the actual physical possession after paying the full consideration and since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain (relative of appellant) is concerned, the same was executed with the sole aim as the appellants were apprehending that she may not come forward to execute the sale deed, as the appellants had paid her the entire amount in cash as demanded by her as she had to first procure an NOC from the Bank of India where the plot of the appellants and other plots were pledged, after the NOC dt. 26.04.2013 was issued by the Bank of India, the appellant got the sale deed registered in his name on 03.05.2013. (i) That the respondent has only raised this objection that the sale deeds are executed through a power of attorney and thus it is not a valid sale transaction and have placed reliance on the judgment of the Hon'ble Supreme Court delivered in the matter of Suraj Lamp and Industries (P) Ltd. V/s State of Haryana. That the observations made by the Hon'ble Supreme Court in the above cited matter are not applicable in the facts and circumstances of the present case as the Hon'ble Supreme Court never intended its observations to apply to genuine/bonafide transactions through SA/GPA/WILL, where there is no impediment for transfer and the concerned persons have paid the requisite stamp duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Vs. The Deputy Director, Directorate of Enforcement, Chandigarh has protected the rights of a bonafide purchaser who has no knowledge of any criminal activity attached with the said sale transaction. 4. Case of the Respondent is that;- (a) In their replies to the appeals, the case of the respondent is as mentioned at para no. 2 above. Besides the same it is stated by the Respondent that the property in question is owned by Smt. Seema Garg and documents submitted in the appeal shows that the plot was divided in five separate portions and each portion sold through power of attorney holders on 03.05.2013. The total amount of sale consideration was Rs. 81,50,000/- (Rupees Eighty One Lakhs Fifty Thousand only) (b) The respondent has relied on judgment passed by Hon'ble Supreme Court in the matter of Suraj Lamp and Industries Pvt. Ltd. in SLP (C) no. 13917 of 2009 held on 11.10.2011 and on the basis of the said judgment it is submitted by the respondent that in view of the hon'ble Supreme Court observation the aforesaid property transaction cannot be treated as a valid transaction and the property as on 09.05.2016 was legally owned by Smt. Seema Garg, hence same was attached vide P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court cited by the respondent is not applicable to the present fact and circumstances of the present case as there is no allegation that the power of attorney executed in favour of Shri Vikas Jain was with malafide intention or to commit any fraud or that the sale consideration amount has been obtained directly or indirectly from illegal sources. On the other hand the appellants have satisfactorily explained the reasons as to why they got the general power attorney executed in favour Sh. Vikas Jain by Smt. Seema Garg. Hon'ble High Court of Delhi in the matter of Pace Developers and Promoters Pvt. Ltd. Vs. Govt. of NCT has held that the observations as made by the Hon'ble Supreme Court in Suraj Lamp's case have been interpreted wrongly, as a conveyance can be registered by taking recourse to a GPA, as long as the transaction is genuine and the same shall be registered by the Registrar/Sub Registrar. (j) The issue of bonafide purchaser has been dealt with by this Tribunal in the matter of Vivek Mathias vs. Deputy Director, ED, Mumbai and in the matter of Sanjeev Kumar vs. Deputy Director, ED, Chandigarh. (k) In the present case, the case of the appellants are in a better ..... X X X X Extracts X X X X X X X X Extracts X X X X
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