Case Law Details
RELEVANT PARAGRAPH
After considering the submissions made on behalf of the learned advocates appearing on behalf of the respective parties, this Court is of the view that in order to decide the issues raised in the instant writ petition it is necessary first to advert to the impugned order dated 6th August, 2007 passed by the TRO-I, Hooghly. The order of the TRO was passed under Rule 11(6) of the second schedule to the Income Tax Act, 1961. While dealing with the matter, the TRO took into consideration the earlier orders passed by this Court in C.O. 8094 (W) of 1996 and W.P. 12187(W) of 2006. While proceeding to deal with the principal issue as to whether the property-in- question could be auctioned for the recovery of the outstanding demand of Dwarka Prasad Agarwala, the TRO issued notices to all concerned in terms of the order passed by the High Court on 09th June, and heard the matter at length. The TRO in his order dated 06th August, came to several findings based on evidence, which are, inter alia, as follows: –
With regard to the question as to whether Panna Bai had shown the property-in- question in the wealth tax return or not, the TRO concluded that Panna Bai residing at 24B, Nimtoala Ghat Street, Calcutta-6, had shown the property in the wealth tax return for the assessment year 1966-67 furnished on 30th June, 1966. He, however, observed that the order could not be verified for non-availability of the records in the department.
With regard to the question as to whether Panna Bai was the benamidar of Dwarka Prasad Agarwala or not, the TRO, held that without doubt the transaction was benami and the real owner of the property at 13,Kalipukur Lane (Road), Sheoraphully, Hooghly, was Dwarka Prasad Agarwala and Panna Bai, wife of Dwarka Das Agarwala, was the ostensible fictitious owner. The TRO further held, inter alia, that Dwarka Prasad Agarwala had acquired the property in the name of fictitious benamidar Panna Bai, wife of Dwarka Das Agarwala. The TRO also held that a registered deed was prepared and executed after considerable deliberation and the name of the Panna Bai, wife of Dwarka Das Agarwala, was expressly shown as the purchaser or the transferee in the deed. But, the address which was written in the wealth tax return was forged, as proved by the field enquiry conducted by the inspector. Therefore, the TRO came to the conclusion that Panna Bai, wife of Dwarka Das Agarwala, had no existence. The beneficiary of the property was also Dwarka Prasad Agarwala as per deposition of the tenants. Upon the death of Dwarka Prasad Agarwala, his heirs were enjoying their interest in the property and the filing of application before the High Court against the attachment and auction of the property, standing in the name of a fictitious benamidar, proves the interest of the heirs, i.e., interest of Dwarka Prasad Agarwala in the property.
If Panna Bai and Panna Devi was the same person, the name of the husband must be Dwarka Das Agarwala as per purchase deed of the disputed property, whereas the name of husband of Panna Devi Agarwala is Dwarka Prasad Agarwala. Therefore, the TRO held that Panna Bai, Panna Devi and Panna Devi Agarwala could not be the same and identical person and proceeded to reject the claim of the writ petitioner, as raised in his letter dated 09th July, 2007. The TRO also specifically observed that the explanation as to why Panna Bai, wife of Dwarka Das Agarwala, should not be treated as the benamidar of Dwarka Das Agarwala on the basis of evidence as submitted was sought for vide letter dated 28th May, 2007, but was not adduced by the evidences and reply of Vishwanath Agarwala. The TRO proceeded to observe that practically Vishwanath Agarwala did not answer this vital issue.
Please become a Premium member. If you are already a Premium member, login here to access the full content.
