TaxTMI 
TaxTMI 
2021 (3) TMI 168
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....jyoti Ashram, Vadodara - 290023. The said flats were purchased from 'Patwa Parikh Construction Company' for the price of Rs. 26,32,500/- per flat i.e. total Rs. 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 appellant to realize the government dues which were confirmed by order-in-original dated 21.12.2005 against two proprietory firms - Gujchem International and Gujarat Impex of the appellant's late husband Mr. Krishna Agarwal and which order-in-original is upheld by the Tribunal by order dated 02.07.2009. By the said letter, the said Superintendent, City Survey, Vadodara was requested to issue necessary instruction not to permit sale/ transfer of the said Four Flats by the Appellant. Based on the said request of the Assistant Commissioner of Central Excise, the Superintendent, City Survey issued Notice dated 22.02.2011 noting the encumbrance lodged by the ....
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....ns 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 Chartered Accountants also states that a report in this behalf has also been sent by the Income Tax assessing officer to the Excise department. 5. The Commissioner of Central Excise, Vadodara thereafter passed Order-in-Original dated 01.10.2018 wherein the learned Commissioner has passed the following order:- "20. The letter dated 09.02.2011 of the Assistant Commissioner, Central Excise Division IV whereby he had lodged the emcumberance of government dues with Superintendent City Survey No. 2, Police Bhavan, Vadodara and requested him not to permit sale/transfer of Flat No. 201, 202, 301, 302 of Shr....
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....e 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 purchase of the said four flats by the appellant under the four registered sale deeds was paid by the appellant from her own source of income and not out of monies inherited by her from her husband late Shri Krishna Agarwal. 6.2. As regards the claim on the fact that monies for purchase of four flats were paid by the appellant from her own source of income, he submits that payment was made by the appellant from her own bank account. In the said bank account payments have been received from the bank accounts of the appellant's mother-in-law and father-in-law and thereafter, from the appellant's bank accoun....
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....d 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, that monies which had gone from the account of Zenith Chemical Pvt. Limited were monies of Krishna Agarwal. He submits that out of three statements of Krishna Agarwal relied upon by the Commissioner, only in the statement dated 11.12.1997, Krishna Agarwal has stated that he had controlling interest in Zenith Chemicals Pvt. Limited. Merely because in 1997, Krishna Agarwal had controlling interest in Zenith Chemicals Pvt. Limited, it does not automatically mean that in 2008 whatever monies went from the account of Zenith Chemicals Pvt. Limited were monies of Krishna Agarwal. Krishna Agarwal was no longer ....
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....earned 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 appellant has clearly established by the Income Tax documents. The Hon'ble High Court had not remanded the matter to the Commissioner for investigating whether the transaction of purchase of the four flats under four registered sale deeds between the appellant and the Builder is a "Created" transaction or not. Indeed such an investigation cannot be undertaken by the Commissioner who lacks jurisdiction to question duly registered documents of title. There is no provision in the Central Excise Act, 1944 or the Rules which confers jurisdiction on the Commissioner to do so. He placed reliance on the judgment of the Hon'ble ....
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...., 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 her late husband Shri Krishna Agarwal's source. In support of this contention, the department has heavily relied upon the fact that initially the purchase of these four flats were initiated by making payment to the builder by Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal, daughter of the appellant. It is also not disputed that though initially a part payment was made by Zenith Chemicals Pvt. Limited and Ms. Shivangi Agarwal but that payment has been returned back to the same person and no sale or purchase was fructified. As admittedly, no sale or purchase deed was registered between Zenith Chemicals Pv....