TMI Blog2024 (4) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2 had initiated certain investigation against the petitioner s husband Whether respondent No. 2 would have any authority under the Customs Act to proceed against the property of a third party namely of the wife of a person who is being investigated? Whether de hors the Customs Act, there is any provision in law permitting respondent No. 2 to issue such communication? HELD THAT:- Both the questions are required to be answered in the negative. We have not been pointed out any provision which can be resorted by the Customs officials to attach the property of a third party like the petitioner who cannot be connected to any recovery under the Customs Act, much less to issue the impugned communication. Even the provisions of Section 142 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G. S. KULKARNI, J.) 1. This petition under Article 226 of the Constitution assails a communication dated 25/30 July 2014 issued by respondent No. 2 Deputy Commissioner of Customs (Preventive), M P Wing, Mumbai, to the Secretary, Pushpa Niketan Co-op. Housing Society (for short the Society ) informing the society not to permit the petitioner to transfer the flat No. 406-B owned by her without prior No Objection (NOC) from the office of respondent No. 2. The reason being that respondent No. 2 had initiated certain investigation against the petitioner s husband Shri. Anil B. Chokhara. It is also the case of the petitioner that a copy of the said communication was never forwarded to the petitioner and that the petitioner came to know of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 2 would not have jurisdiction in any manner to consider the same to be the property of the petitioner s husband and have an indirect attachment of the said property under the impugned communication. He would submit that the petitioner is discharging loan installments in respect of the said flat from her income. It is his contention that such action on the part of respondent No. 2 would also be hit by Section 3 of the Prohibition of Benami Property Transactions Act, 1988. He has supported such contention by placing reliance on the decision of the Division Bench of the Kerala High Court in the case Dy. Commissioner of Cus. (Preventive), Kozhikode Vs. Ayesha. A.V. 2014 (300) E.L.T. 167 (Ker.). 3. On the other hand, Mr. Mishra, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms officials to attach the property of a third party like the petitioner who cannot be connected to any recovery under the Customs Act, much less to issue the impugned communication. Even the provisions of Section 142 of the Customs Act which provides for recovery of sum due to Government could not have been resorted by respondent No. 2 to issue the impugned communication. Thus, respondent No. 2 has acted in patent lack of jurisdiction. 7. This apart, there is another aspect of the matter which, in our opinion, would go to the root of the matter. Even assuming that a statement is stated to be made by the petitioner's husband in relation to the flat in question being purchased by him or actually being his property and ostensibly owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Cus. (Preventive), Kozhikode Vs. Ayesha. A.V. (supra) is quite apposite. The issue before the Kerala High Court was in regard to the recovery of the dues of the defaulter, who was husband of the respondent therein. Whether the wife and children of the defaulter were entitled to be proceeded against and whether the properties standing in their name could be applied to the satisfaction of such dues of the defaulter on the premise that the same were in fact purchased by the defaulter and that the purchase was in favour of the defaulter s dependents. The Court considering the provisions of Section 142 of the Customs Act, 1962 as also the provisions of Section 3 of the Benami Act repelled the revenue s contention. It was observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wife is bound to account to the husband and in such circumstance the property even if in the name of the wife, can be proceeded against for the dues of the husband/defaulter. The learned counsel also relies on the Division Bench decision of this Court in Sunitha v. Ramesh [2010 (3) KLT 501] and the decision of the Supreme Court in Marcel Martins (supra) to advance the said proposition. 14. The principle stated in the said decision cannot clothe the Department with any power or authority or a legal right to step into the shoes of the husband/defaulter; as has been stated above. The transaction between the husband and wife cannot, going by the declaration of law in the decisions cited above, be ever termed as a benami transaction, since t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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