TMI Blog2021 (3) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant have received gift from her father-in-law and mother-in-law. Accordingly, it is legally earned income by the appellant from which the entire payment of cost of flats was made. This fact has also not been disputed by the lower authorities. As admittedly, no sale or purchase deed was registered between Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal with the builder. In this fact, it is established that no sale purchase of four flats against the payment made by Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal was concluded. Therefore, even though some transaction was made towards purchase of four flats by Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal with the builder but since the deal was cancelled there exists no sale purchase of four flats. Subsequently, in the fresh deal, the appellant has made payment from her own source which was received as gift from her mother-in-law and father-in-law and the sale deed for purchase of four flats with the builder was registered. Therefore, the appellant is sole owner of four flats purchased by making payment from her own source of income. In the deal between the appellant and the builder, the earlier inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the present appeal is whether the flats belonging to the appellant which she purchased under Registered Sale deeds dated 31.03.2008 out of monies received as gifts from her mother-in-law and father-in-law, can be proceeded against by the Excise department for recovery of Central Excise dues confirmed by order-in-original dated 21.12.2005 against two proprietory firms of her late husband Mr. Krishna Agarwal. 2. The brief facts of the case are that on 31.03.2008, by four registered Sale Deeds, the appellant purchased four flats bearing Nos. 201, 202, 301 and 302 in the building called Shreeji Ashraya , 7 Mamta Society, Behind Atmajyoti Ashram, Vadodara 290023. The said flats were purchased from Patwa Parikh Construction Company for the price of ₹ 26,32,500/- per flat i.e. total ₹ 1,05,30,000/-. Subsequent to the purchase of said four flats by the appellant in the year 2008, the Assistant Commissioner of Central Excise, Division IV, Vadodara-I issued letter dated 09.02.2011 to the Superintendent, City Survey No. 2, Vadodara in which it is stated that the Excise department is contemplating attachment of the said four flats, standing in the name of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en acquired by the Appellant from her own source of income and if so, to withdraw the said letter of encumbrance issued to the City Survey Superintendent. ; 4. By the above directions/ instructions, the Hon ble High Court remanded the matter to the Commissioner with specific direction to decide whether the said Four Flats had been acquired by the Appellant from her own source of income and if so, to withdraw the said letter of encumbrance issued to the City Survey Superintendent. In the remand proceedings before the Commissioner, the Appellant by letters dated 22.01.2018 and 16.04.2018 made detailed submissions and placed before the Commissioner, Chartered Accountant s Certificate dated 08.06.2013 which certified that the Appellant had purchased the said Four Flats out of her own source of income viz, the monies received as gift by her from her mother-in-law, Mrs. Panna Devi and father-in-law, Shri Satyanarayan Agarwal and in support thereof the Income Tax returns, Capital accounts, Bank statements, Income tax assessment order of the Appellant s mother-in-law and father-in-law and the Appellant s income tax returns and assessment order were submitted. The said Certificate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er jurisdiction. He submits that admittedly, the proposed purchases by Zenith Chemicals Pvt. Limited and Shivangi Agarwal did not fructify into a transaction of sale and purchase and no Registered Sale Deed was executed between the Builder and Zenith Chemicals Pvt. Limited and Shivangi Agarwal and accordingly, the monies paid by Zenith chemicals Pvt. Limited and Shivangi Agarwal were returned by the Builder. 6.1. He submits that it is settled law that a transaction of sale and purchase of an immovable property of the value of more than ₹ 100/- has to be by means of Registered Sale Deed and in the absence of a Registered Sale Deed, no title is acquired in the immovable property. Therefore, in absence of any Registered Sale deed between the Builder and Zenith Chemicals Pvt. Limited and Shivangi Agarwal in respect of the said four flats, they did not acquire any title in respect of the same. The only registered sale deed in respect of the said four flats is that between the builder and the appellant for which the price was paid by the appellant from the amounts of gift received by the appellant from her mother-in law and father-in-law. Clearly therefore the price for the purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Hon ble Supreme Court in the case of Gapadibai vs. State of Madhya Pradesh AIR 1980 SC 1040. He also placed reliance on the decision of Hon ble Madras High Court in the case of A.G. Krishnamoorthy vs. V. Kannammal Ors 1992 (2) MLJ 343 in which the decision of the Hon ble Supreme Court has been followed and it is held that a registered deed is a solemn document of title which cannot be disputed by a third party and it is not open to a Creditor who has a claim against a Debtor to say that his debtor is the real owner of a property which stands in the name of another person under a registered deed. 6.4. He submits that the Commissioner has seriously erred in presuming that monies paid by Zenith Chemicals Pvt. Limited and Shivangi Agarwal for the proposed purchase which did not materialize were monies paid by the appellant s late husband Shri Krishna Agarwal. The Commissioner has proceeded on the basis that Krishna Agarwal had in his statements dated 11.12.1997, 01.01.1998 and 15.06.1998 stated that amongst other companies, he had floated a Company by the name of Zenith Chemicals Pvt. Limited. On that basis the Commissioner has presumed without any evidence whatever, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Krishna Agarwal but was saving account of Shivangi Agarwal under Guardian, Meena Agarwal (the appellant). Learned Counsel also invited our attention to the Bank Account statements to this effect. He further submits that monies in the account of Shivangi Agarwal from which she made payments to the builder for the proposed purchase were received by her by way of gifts from her grandmother. He also referred to the gift letters enclosed with the appeal papers. He submits that in the above circumstances, the Commissioner has proceeded on the totally erroneous basis. 6.6. Learned Counsel further submits that learned Commissioner has totally exceeded her jurisdiction in holding that the purchase by the appellant under the four registered sale deeds are created transactions. The sale deeds are duly registered with the Registration Authority in law and are documents of title to the property in law. The matter was remanded to the Commissioner by the Hon ble High Court for the limited and specific purpose of examining whether the monies paid by the appellant to the builder for the purchase under the said Registered four sale deeds was out of her own source of income which the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant out of her own source of income and had not been acquired through inheritance from her late husband. 10. I find that after remand by the Hon ble High Court, the appellant, before the Adjudicating Authority had placed Chartered Accountant s certificate dated 10.06.2011 giving full details of source of income from which the appellant has purchased the said four flats. It was submitted by the appellant that the entire money which was paid by her for purchase of four flats was received by her as gift from her Father-in-law Shri Satyanarayan Agarwal and Mother-in-law Mrs. Panna Devi. To substantiate this fact, the appellant submitted income tax returns, capital accounts, bank statements and Income tax assessment orders of both the persons. On scrutiny of these documents, it is absolutely clear that the appellant have received gift from her father-in-law and mother-in-law. Accordingly, it is legally earned income by the appellant from which the entire payment of cost of flats was made. This fact has also not been disputed by the lower authorities. Both the lower authorities have proceeded to hold that the payment made by the appellant is not from her own source of income but from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these four flats for a simple reason that the payment by the appellant made to the builder is not from Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal but entire payment was made by her from her own source of income. As observed above, since the four flats were purchased by the appellant from her own source of income, question of inheritance from her late husband Shri Krishna Agarwal does not arise. 11. The Hon ble High Court precisely directed the department to examine only two points whether the appellant has made payments for purchase of four flats by her own source of income and whether the property was possessed by the appellant as a result of inheritance from her late husband Shri Krishna Agarwal. From the detailed submissions along with the documentary evidence submitted by the appellant, it is clearly established that appellant have purchased four flats and made payment from her own source of income and it is also fact that appellant has not inherited the property from her late husband Shri Krishna Agarwal. In this undisputed fact, the lower authorities have travelled blindly ignoring the observations made by the Hon ble Gujarat High Court and without any basis ..... 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