Masterbaker Marketing Ltd vs Noshir Mohsin Chinwalla
2023 Latest Caselaw 3230 Bom

                                                      AMOL 907 IAL 8078.2023.odt




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION


                     INTERIM APPLICATION (L) NO. 8078 OF 2023
                                       IN
                           APPEAL (L) NO. 8074 OF 2023

Masterbaker Marketing Ltd.                                 ...Petitioner
      Versus
Noshir Mohsin Chinwalla                                    ...Respondent

Mr. Percy Pardiwalla, Senior Advocate a/w. Mr. Harsh Kapadia, Mr. Sagar divekar and Mr. Abhimanyu Mhapankar for applicant/appellant.

Ms. Peppino Bahl i/b law offices of Divya Bhal for respondent no.1

Ms. Saloni Vyas a/w. Mr. S. M Algaus i/b. Argus Partners for respondent no.2.

Ms. Vineesha Bhavesh Raheja, respondent no.4 and Mr. Bhavesh Mukesh Raheja respondent no.5 present.

Ms. Rekha Rane, 2nd assistant to court receiver present.

                                             CORAM:         K.R. SHRIRAM &
                                                            RAJESH S. PATIL, JJ

                                             DATED:         30th March, 2023

PC:-

1. The order impugn in this appeal is dated 8 th March 2023. The

order was passed on praecipe that circulated by the court receiver seeking a

AMOL 907 IAL 8078.2023.odt

direction with regard to the payment of TDS from the sale proceed of property

that belonging to judgment debtors-respondent no.1 and 2. Ms. Vyas for

respondent no.2 states that respondent no.2 was not a party to the suit and

has 50% interest in the suit property. We are not considering that issue at this

point of time.

2. The primary reason why we place this matter today on board was

because the property which was flat Nos. 5A & 5B on the 5 th floor of the

building known as "Woodhouse" situated at 29, Nathalal Parekh Marg,

Woodhouse Road, Colaba, Mumbai 400 039 were sold through the office of

the court receiver. The purchasers have paid full consideration less 23.92%

forming the TDS component. The purchaser have brought that amount today

by way of pay orders drawn in favour of the court receiver. Copy whereof is

scanned and reproduced herein below :-

AMOL 907 IAL 8078.2023.odt

AMOL 907 IAL 8078.2023.odt

The court receiver to encash the same.

3. By depositing this amount with the court receiver, the purchasers

namely Mr. Bhavesh Raheja and Mrs. Vineesha Raheja are absorbed of their

responsible and liable to deduct tax at source, under Section 195 of the

Income Tax Act, 1961. Mr. Bhavesh Raheja and Mrs. Vineesha Raheja will not

be saddled with any consequences under section 201 and 271 (C) of the

Income Tax Act,1961. We clarify that in the event they receive any notice from

the income tax authority they shall submit a copy of this order to the income

tax authority who shall accept the same.

4. That would leave the court receiver to deal with the sale

proceeds. It is not clear whether the judgment debtor-respondent no.1 would

be liable to pay capital gains tax on the property. It is open to respondent no.1.

It is open to respondent no.2 also to apply in which case the assessing officer

shall give his opinion within three weeks from the date of receiving this

application.

5. The judgment debtor shall submit the true certified copy of title

deeds that was submitted by defendant to office of the court receive, to the

assessing officer, in determining the cost of indexing should the need arise. For

an opinion as to whether capital gains tax has to be paid or not. Within 3

AMOL 907 IAL 8078.2023.odt

weeks of receiving this application, the assessing officer shall give his opinion

with a copy to the court receiver as well as to appellant.

7. Ms. Bahl for judgment debtor-respondent no1 objects this

direction being given to the court receiver and states that she would take

instructions as to whether the court receiver could apply at the cost of

judgment debtor. Objection are not accepted, judgment debtor who is

responsible for creating such a situation cannot be heard to create more

hurdle in the functioning of this court and is disposing the matter. The

judgment debtor is warned and cautioned that this court will initiate contempt

proceeding, if judgment debtor interferes with the administrative of justice.

8. The court receiver to deposit the entire sale proceeds in the fixed

deposit with the nationalized bank for an initial period of six months.

(RAJESH S. PATIL,J.)                                       (K.R. SHRIRAM,J.)