Subhash Kakade, J.@mdashThis appeal is directed by the appellants/defendants being aggrieved by the judgment and decree dated 23.12.1995 passed in Civil Suit No. 2-A/1994 by the learned Court of IVth Additional District Judge, Sagar (M.P.) decreeing the plaintiff/respondent''s suit.
(A) The respondent instituted a suit in respect of the house No. 48/324-A situated at Tilakganj Ward, Sagar (MP). It is alleged that the suit property was purchased by the respondent from one Rajendra Kumar for a consideration of Rs. 45,000/- by registered sale-deed dated 08.05.1985. The purchase according to the respondent was bonafide for her own use after payment of due consideration. After getting the possession from the seller addition, alteration work were performed investing sufficient amount.
(B) The suit property, however, attached by the appellant No. 2 -Sales Tax Officer, Circle-2, Sagar on 24/03/1988 in a proceeding for recovery of sales tax dues against one Firm M/s. Mulayamchand Rajendra Kumar, hereinafter in short "The Firm". It is further pleaded that the respondent filed an objection on 13.09.1990 before the appellant No. 2, who in his turn rejected the same vide order dated 23.08.1993. Therefore, after giving notice on 14.10.1993 u/s 80 of the Code of Civil Procedure, the suit for declaration was filed for the relief that the respondent is owner of the suit property and attachment of the suit property by Revenue be declared null and void.
2. The appellants submitted their written statement denying all averments of plaint. It was inter alia submitted that the Firm was engaged in business of cereals, pulses, oilseeds and was defaulter of sales tax arrears amounting to Rs. 1,55,566/- for the period from 1966-1967 to 1969-1970 and from 1981-1982 to 1984-1985. After depositing some amount, Rs. 1,33,632/- was to be recovered from the Firm. The seller Rajendra Kumar duly participated in the proceedings of sales tax assessment/recovery and was well aware of the sales tax dues against the Finn. In spite of it, the suit property with malafide intention surreptitiously sold to the respondent by Rajendra Kumar to defeat the attachment proceedings.
3. After casting the issues, learned trial Court recorded the evidence of the parties. Respondent Smt. Shantibai examined herself as PW/1 and also examined Mangal Singh (PW/2) and Hariom Kesharwani (PW/3) and produced original registered sale deed (Ex. P-1) of the suit property. Mutation document (Ex. P-2) tax payment receipts (Ex. P-3 to P-5), order (Ex. P-6) passed by appellant No. 2 and statutory notice (Ex. P-7-) before filing the suit. The Revenue Department examined witnesses Abdul Nazir (DW/1) and Murarilal Khare (DW/2) but, did not produced any documentary evidence.
4. On appreciation of evidence, the learned trial Court declared that the respondent is owner of the suit property and the attachment of the suit property by the appellants also declared null and void.
5. Shri Santosh Yadav, learned Panel Lawyer for the appellant/State after taking through the pleadings and evidence along with documents available on the record argued that the learned trial court erred in not appreciating the evidence in respect of the period of dues. Both witnesses Abdul Nazir (DW/1) and Murarilal Khare (DW/2), officers of the department were present with the official record and specifically stated that the suit property was attached in lieu of the sales tax recovery and they have not cross examined. In such premises, he submitted that impugned judgment be set aside.
6. Shri T.S. Ruprah, learned Senior Counsel appearing for the respondent supported the impugned judgment and argued that the learned trial court rightly decreed the suit, hence appeal deserves to be disallowed.
7. On close scrutiny of evidence produced by both the parties oral as well as documentary the following facts are not disputed as found proved:--
(i) The respondent purchased the suit house from Rajendra Kumar vide registered sale deed (Ex. P-1) dated 08.05.1985 and her name is also brought on official record as per mutation document (Ex. P-2).
(ii) Relation between respondent Smt. Shanti Bai and the seller Rajendra Kumar is also not disputed as she is sister-in-law of Rajendra Kumar.
(iii) Seller Rajendra Kumar is one of the partners of the Firm also.
(iv) It is also not disputed that the Firm was served with a notice that the Firm is a defaulter of sales tax dues of Rs. 1,55,566/- and after adjusting some deposited amount, the due remained to Rs. 1,33,632/-.
8. Now, the substantial question is whether the suit property can be legally attachable in proceedings for recovery of sales tax dues against the Firm Mulayamchand Rajendra Kumar?
9. Learned trial court rightly held while passing the impugned judgment that the burden to prove this substantial issue, which is directly related to decide this appeal is rests upon the appellants.
10. The provisions of Section 33-A of Madhya Pradesh Sales Tax Act, hereinafter referred to as ''the Act'', empowers the Revenue Officer to attach any property in respect of recovery of sales tax dues against defaulter who transfers his assets with intention to defraud the revenue, which is reproduced below for facility of references:--
Section 33-A- Where during the pendency of any proceeding under this Act, any dealer creates a charge on or parts with the possession by way of sale, mortgage, exchange or any other mode of transfer whatsoever, of any of his assets in favour of any person with intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the dealer as a result of the completion of the said proceedings:--
Provided that such charge or transfer shall not be void if made for valuable consideration and without notice of the pendency of the proceedings under this Act.
11. The aforesaid section lays down that any transfer made during the pendency of the proceedings with the intention to defraud the revenue shall be void as against any claim in respect of any tax or any other sum payable by the dealer as a result of the proceedings.
12. In light of above provisions the appellant No. 2 attached the suit property with the aid of the provisions of Section 147(g) of the Madhya Pradesh Land Revenue Code, 1959, hereinafter in short "the Revenue Code".
13. Now coming to the proviso to the said section which exempts a transfer made for valuable consideration and without notice of the pendency of the proceedings under the Act. The proviso is apparently to protect a transferee, who acquires the property for valuable consideration and without notice of the proceedings.
14. When the suit property attached by the appellant No. 2 the respondent filed objection to it as an third party as per provisions of Rule 24(1), made under the Revenue Code, which reads as under:--
if any claim is set up by a third person to the property attached or proceeded against under the provisions of this code, the Revenue Officer shall enquire into the claim and may admit or reject it.
15. The objection filed by the respondent on 13.09.1990 were rejected after three years by the defendant No. 2 vide order (Ex. P-6) dt. 23.08.1993.
16. The person against whom an order is made under Rule 24(1) of the Revenue Code may, within one year from the date of the order, institute a suit to establish the right which he claims to the property attached or proceeded against; but subject to the result of such suit, if any the order shall be conclusive.
17. As per provisions of rule 24(2) of the Revenue code, suit filed by the respondent on dated 10.01.1994 is well within one year from the order (Ex. P-6) dated 23.08.1993 passed by the defendant No. 2.
18. In order to claim the benefit of the proviso of Section 33(A) of the Act, it is necessary for the transferee to show that he purchased the property for the consideration and that he had no notice of the proceedings at the time of the sale or prior to the sale.
19. The statements of respondent Smt. Shantibai (PW/1) are unrebutted, in which, she categorically stated that she does not have any knowledge regarding sales tax dues against Rajendra Kumar. It is pertinent to mention here that sale transaction (Ex. P-1) of the suit property took place between the respondent and Rajendra Kumar on 08.05.1985 prior to the order (Ex. P-6) dated 23.08.1993 passed by the respondent No. 2, in which he himself mentioned the date 13.09.1990 of raising objection by the respondent.
20. The appellants did not discharge the burden proving by documentary evidence that there was sales tax arrears amount of Rs. 1,33,632/- due against the Firm for the period from 1966-1967 to 1969-1970 and from 1981-1982 to 1984-1985. It is pertinent to mention here that this burden can be shifted by the appellants simply by filing documentary evidence. Abdul Nazir (DW/1) and Murarilal Khare (DW/2) stated regarding the dues etc., but both the witnesses did not file any necessary documentary evidence to shift this burden. The appellants also failed to prove the fact that prior to execution of sale-deed (Ex. P-1) dated 08.05.1985, this fact was well in knowledge of the respondent that there was sales tax arrears due against the Firm or his partner Rajendra Kumar. For the reasons stated herein above, I do not find any merit in the appeal and the same is hereby dismissed. Since a lady has been dragged in this Court, therefore, she is entitled for the exemplary cost of Rs. 5,000/- (Five Thousand) with cost throughout.
Appeal dismissed.
