H.N.Seth, J. - (1.) Petitioner Smt. Kamala Devi, who purchased house Number 118, Mohalla Rasulabad. Allahabad, from one Ram Din, by a registered sale-deed dated 21st November, 1969, has approached this Court for relief under Article 226 of the Constitution.
(2.) The facts, which are no more in controversy and which give rise to this petition, are that Ram Din was a partner in the firm, Kisan Oil Mills, which was an assessee under the U. P. Sales Tax Act. There were sales tax dues against the Firm for the years 1963-64, 1966-67, 1967-68 and 1968-69 which had not been paid. On 21st November, 1969, Ram Din sold the house in dispute to the petitioner. Subsequently, the Sales Tax Department initiated proceedings for recovery of the sales tax dues of the Firm Kisan Oil Mills and tried to recover the amount from its partners. In that process they attached the house in dispute on 8th October, 1975. The petitioner then filed objections against the attachment of the said house on the ground that the house belonged to her and she had nothing to do with the assessee Kisan Oil Mills. However the respondents advertised the said house for being put to sale on 9th December, 1975, without first deciding the objections 'to the attachment of the house, raised by the petitioner. The petitioner then filed the present writ petition before this Court on 3rd December, 1975, and obtained orders staying sale of the house, Subsequently, by an order dated 24th May, 1976. Additional Collector, Allahabad, rejected the objections to attachment, raised by the petitioner. While rejecting the objection the Additional Collector observed that the said house had been sold by Ram Din to the petitioner who "happened to be the wife of a brother of another partner, with a view to avoid payment of sales-tax dues. He held that in the circumstances the sale made by Ram Din in favour of the petitioner was void and the house continues to be liable for being sold for realisation of the sales tax dues of Kisan Oil Mills. The petitioner then amended the writ petition and sought the quashing of the order of the Additional Collector as well.
(3.) It is apparent that the property in dispute had been sold by Ram Din to the petitioner long before it was attached on 8th October, 1975. At that time there was no restraint on Ram Din from transferring or conveying title in the property to any body. Learned Standing Counsel appearing for the respondents relying upon the provisions contained in Section 34 of the U. P. Sales Tax Act which run thus:- "Transfer to defraud revenue void:- (1) Where, during the pendency of any proceedings under this Act, any person liable to pay any tax or other dues creates a charge on or transfers, any, immovable property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such charge or transfer shall be void as against any claim in respect of any tax or other dues payable by such person as a result of the completion of the said proceedings: Provided that nothing in this section shall impair the rights of the transferee in good faith and for consideration." contended that according to this provision any transfer made by a person with the intention of avoiding payment of sales tax or other dues payable under the provisions of the Sales Tax Act, is to be considered to be void as against any claim of the department. As according to the findings of the Additional Collector, this transfer had been made for the purposes of avoiding payment of sales tax dues, the transaction was void and there was no impediment in the way of the Sales Tax Authorities in attaching and selling the same for recovering the dues from Kisan Oil Mills. It is significant to note that Section 34 of the U. P. Sales Tax Act was added to the U. P. Sales Tax Act by means of U. P. Act No. 1 of 1973 with effect from 1st March, 1973. This provision was not there when Ram Din transferred the property to the petitioner on 21st November, 1969. The provisions contained in Section 34 were not given any retrospective operation for any period to 1st March, 1973. Accordingly, this provision cannot be invoked for the purposes of invalidating the transfer made as far back as on) 21st November, 1969.;