1 WP.569/2010
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.569 OF 2010
Amit Rasiklal Shah ...Petitioner
Vs.
Sonal Amit Shah ...Respondent
Ms. T. F. Irani for the Petitioner
Mr. Rakesh K. Agarwal for Respondent
CORAM : SMT. ROSHAN DALVI, J.
DATED : 18TH NOVEMBER, 2010
ORAL ORDER :
1. The Petitioner husband has challenged the order of the Family
Court, Mumbai dated 4th
November 2009 granting interim
maintenance of Rs.20,000/ to his wife and Rs.10,000/ each
to his sons in the Petition filed by the wife.
2. The Petitioner’s income is required to be seen to adjudicate
whether the impugned order grants a reasonable amount of
maintenance or whether the maintenance is excessive
considering the Petitioner’s station in life.2 WP.569/2010
3. The Respondent wife has not been shown to be having any
separate means of livelihood. The two children are aged about
12 and 10 years.
4. The Petitioner has produced income tax returns for 3 years. He
contends that net taxable income is the only numerical figure
from the income tax returns must be seen by the Court based
upon which the maintenance for the wife and children must be
granted. The contention is wholly incorrect. It would be
absurd to consider the net income of an assessee who has
various sources of income some of which may not be liable to
tax at all.
5. Consequently, the computation of taxable income of the
Petitioner’s individual returns must be seen in its entirety and
has to be read as a whole. The Petitioner is admittedly in
business. Hence the business returns of the partnership firm or
sole proprietary concern along with the trading and profit and
loss account as well as the balance sheet of the firm must be
seen to appreciate what income the firm or the individual
would have at least approximately earned and what income is
ultimately shown as the net taxable income. This is aside from
the fact that it is settled position in law that the tax returns of
a party shown by the party in Court, specially in matrimonial
proceedings, cannot be taken for the gospel.3 WP.569/2010
6. With that it will be interesting and appropriate to decipher the
Petitioner’s income from the individual returns shown by
himself.
7. The Petitioner was married in 1997. The parties have fallen off
in April 2006. The wife lives with her two sons in her parental
home.
8. The Petitioner’s income tax returns is for the year 20062007.
It makes interesting reading. The income from his business
and profession is only Rs.9695/. The long term capital gains
of the Petitioner are Rs.3.62 lakhs. Income from other sources
is Rs. 1 lakh and the gross total income is Rs.4.72 lakhs. After
deductions under Section 80 C of the Income Tax Act of Rs.1
lakh the total income is shown to be Rs.3.72 lakhs. The
computation of his total income shows, not profit from his
business, but as salary of Rs.1 lakh with the aforesaid capital
gains.
9. For the next assessment year 20072008 the Petitioner has
shown the share of profit from his firm of Vintex Optics as well
as Mesha International. These are petty figures of Rs.25000/
and Rs.9000/ each. The Petitioner has shown the
remuneration from Vintex Optics which exceeds his share of
profit. It is approximately Rs.57000/ less interest thereon of 4 WP.569/2010
Rs.27000/. The Petitioner has shown commission received
from another firm. It is stated by him in Court that he had
introduced a client from Andheri to his brother in the said firm
for which he received a commission of Rs.90000/. The
Petitioner has further shown short term as well as long term
capital gains. These are on shares of listed companies. The
dividend income from shares, which is exempt from tax is in a
sum of Rs.37,688/ as also with interest on RBI bonds and PPF
interest. The long term capital gains is to the extent of Rs.16.5
lakhs and short term profit of shares treated separately is also
shown deducted from the income of the Petitioner on certain
shares. Income of the two minor sons of the Petitioner is also
shown in his own return. The LIC premium which is deducted
is of Rs.1lakh and the Petitioner who is present in Court
concedes that the LIC policies are more than Rs.20 lakhs.
10.The returns for the year 20082009 also shows the share of
profit from Mesha International, but not from Vintex Optics. It
shows a loss from this proprietary concern. These returns also
show the dividend, PPF, Insurance etc. as in the earlier year.
The capital account of the Petitioner which is shown only in
the last year’s income tax returns shows gift of Rs.5 lakhs and
Rs.2.25 lakhs amongst others given to his father and his
brothers. The income from the partnership firm of Nisha
International is not shown. Instead the assets in the balance
sheet shows a certain flat premises in Goregaon. The 5 WP.569/2010
investments in shares, insurance, mutual funds recurring
deposits, PPF etc. are also shown aggregating to about Rs.55
lakhs including the investment in shares of Rs.30 lakhs. Loans
and advances are shown against all the family members except
perhaps his wife. The cash and bank balances are shown to
aggregate to approximately Rs.3 lakhs.
11.These returns themselves show the worth of the Petitioner.
They do not show a person who earns an amount of Rs.
20000/ per month as is alleged by the Petitioner. A person
who earns that income, if that be his only income, would not
be able to invest in shares of listed companies, insurance, PPF
account, government bonds, flat, shop etc. Though these
assets are not liable to distribution or division whilst
considering the interim maintenance, these are required to be
seen and appreciated by the court for considering the income
earned from such assets to appreciate his standing in society.
12.It is argued on behalf of wife that the Petitioner’s total
earnings including earnings as a partner or sole proprietor in
the aforesaid firms and as a Director in Global Parasol
Reinsurance Bonds besides having shares, bank accounts and
cash etc. It is also argued that the Petitioner owns 5 cars and
has bank accounts in IDBI Bank, Axis Bank, Indian Overseas
Bank and HDFC Bank. The Petitioner also has credit card of
Citibank. 6 WP.569/2010
13.The Advocate on behalf of wife drew my specific attention to
the income tax returns of the Petitioner for the assessment year
20072008 showing the current year’s income remaining after
set off of the losses of earlier years including salary, business
speculation, short term capital gain etc., to be Rs.3.65 lakhs.
The total exempted income including the long term capital
gain against security transactions is shown to be Rs.17.5 lakhs.
The learned Judge has considered the aforesaid amounts to
determine the Petitioner’s standard of living. That has been
correctly considered. Though the Petitioner may be entitled to
set off the losses and though the Petitioner may be legally
exempt from tax for the purpose of payment of income or
wealth tax, the fact that the Petitioner has earned those
amounts cannot be sidelined. It would have to be considered
reading the taxation returns as a whole. Considering these
returns itself the interim maintenance amount would be
calculated. This would leave out the immovable properties, if
any, owned by the Petitioner and the Bank accounts which are
not produced before this Court. Upon seeing these returns
maintenance of Rs.20000/ for the wife and Rs.10000/ each
for the children is not only reasonable, but in order. The order
of the learned Family Court Judge is not required to interfered
with.7 WP.569/2010
14.The Writ Petition is dismissed.
15.The Civil Application No.2705/2010 also stands disposed off
as infructuous.
(SMT. ROSHAN DALVI, J.)
http://bombayhighcourt.nic.in/data/judgements/2010/CWP15710.pdf
***********
SECOND JUDGMENT
1 WP.4641/2010
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.4641 OF 2010
Shirish H. Garg ...Petitioner
(Orig. Respondent)
Vs.
Nidhi S. Garg ...Respondent
(Orig. Applicant)
Mr. R.S. Apte i/b. Mr. V.P. Patankar, Advocate for Petitioner
Mr. A.M. Vernekar, Advocate for Respondent
CORAM : SMT. ROSHAN DALVI, J.
DATED : 16TH NOVEMBER, 2010
ORAL ORDER:
1. This Petition is filed by the husband challenging the order of
maintenance passed by the Family Court, Bandra, Mumbai on
1st
April 2010 for the interim maintenance under Section 24 of
the Hindu Marriage Act of his wife.
2. The husband is in business. The wife has no independent
source of income. The husband runs three family businesses.
These are shown on the Website of the husband as well as the
Company. The husband owns a car and has purchased a share
in a property which initially belonged to his joint family for his
residence. The parties have been engaged and married in a 2 WP.4641/2010
five star hotel. The husband’s bank account shows large
deposits and withdrawals. He pays separate electricity bills of
large amounts of his residential premises. The husband also
has Life Insurance Policy. He has several employees whose
provident fund is paid and an immovable property for which
property taxes and municipal taxes are paid. These are
reflected in the supporting documents produced by the wife
being his bank pass book, the employees provident fund book,
the LIC Policy, the property tax receipt, municipal tax receipt,
Website details etc.
3. The husband has not disputed the separate 3 or 4 businesses of
the family in which he has a share. He has also not disputed
the Website of the business concerns. He has instead sought to
show his income under the income tax returns filed by him as
also the company.
4. The determination of maintenance is dependent upon
consideration of the Petitioner’s own income and the income of
the Respondent under Section 24 of the Hindu Marriage Act
which runs thus:
“24. Maintenance pendente lite and expenses of
proceedings – Where in any proceeding under this Act it
appears to the Court that either the wife or the husband, as
the case may be, has no independent income sufficient for her
or his support and the necessary expenses of the proceeding, it
may, on the application of the wife or the husband, order the
respondent to pay to the petitioner the expenses of the 3 WP.4641/2010
proceeding, and monthly, during the proceeding such sum as,
having regard to the petitioner’s own income and the income
of the respondent, it may seem to the court to be reasonable”.
5. Upon considering the interim application for maintenance the
wife is given a share in the income of the husband and not his
properties. The husband, therefore, contends that only his
income, as reflected in the individual income tax returns filed
by him as also the returns of the businesses run by him, can be
seen by this Court and the Family Court.
6. The Family Court has considered the aforesaid businesses, the
expenses for purchase of movable and immovable properties
the debit and credit entries in his bank account and the
Website details of the Petitioner himself and his businesses to
ascertain the approximate income of the Petitioner.
7. The ascertainment of the income has to be done judiciously
and sensibly. It cannot be done arbitrarily or only
arithmetically. The consideration of the income contemplated
under the Section does not mean that only the numerical
figures shown in the income tax returns of a party can be taken
for the gospel. The husband contends, from his income tax
returns which are shown to Court, that he earns approximately
Rs.2 lakhs a year. This would constitute an income of
approximately Rs.16,000/ per month. In this income the
husband would not be expected to have the bank account that 4 WP.4641/2010
is shown to Court, the car which he owns, the share in the joint
family property that he has purchased, the exports that he has
made, the expenses for the electricity that he has paid or the
property taxes that he has incurred or the employees whom he
supports in several firms.
8. Details of four firms are provided by the wife and considered
by the learned trial Judge. The biodata of the husband as well
as Website details of the firms show the goodwill of the firm
acquired since its establishment in 1963. This is reflected in
the name of the firms and the products that they produce. The
Website of the firm boasts of its leadership in glass industries
with regard to the quality of the products and its exports. It
shows export market in various foreign countries on four
continents. It is shown to have 51 to 100 employees, 1000 to
3000 sq. mtrs. of factory size, with various production lines,
estimated annual sales below one Millon US Dollars. These are
export oriented firms manufacturing products of ISO
certification. They are shown to be pioneers in glass industry.
The firms carry businesses in separate immovable properties
shown as head office as well as branch office at Goregaon as
well as Kandivali, Mumbai. The Website shows the husband to
be the contact person in the firms.
9. The individual Website of the husband shows his position of
responsibility in expanding the family businesses which has 5 WP.4641/2010
proved to be a “boon” for the four companies mentioned
therein.
10.His residential address is shown in Dawawala Bungalow of
800 sq. yds. The husband claims that that is the joint family
property. It belongs to four brothers including the husband’s
father. The husband has purchased ¼ share of one of the other
brother of his father. That share is reflected in his income tax
returns. That share must be taken to be at least approximately
of 2000 sq. ft in area being ¼ of the total area of the bungalow.
The husband has valued it at little over Rs.3 lakhs in his
income tax returns which valuation would be impossible to
accept, given the current market rates of real estate.
11.The parties got engaged and married in Hotel Sea Princess,
Juhu besides having other related social wedding ceremonies.
This fact is reflected in the invitation cards produced by the
wife and not denied by the husband.
12.The bank account statement of the Indian Overseas Bank
shows various debit and credit entries of thousands and even
lakhs of rupees which have remained unexplained. Mr.
Vernekar on behalf of the wife drew my specific attention to
these entries which belie the net income shown to have been
earned by the husband as reflected in his income tax returns
completely. e.g., in quarter between April 2007 to June 2007 6 WP.4641/2010
about Rs. 8 lakhs have been deposited into his account and are
soon thereafter withdrawn. It appears essentially for travel
purpose as reflected from the debit entries in favour of the
Kuoni Travels. The credit entries are seen to be from other
saving accounts, the numbers of which are shown against those
entries. This shows that the husband has at least four other
accounts from which amounts have been transferred to the
only bank account which is on record. There is also a LIC
policy of the husband of Rs. 4 lakhs.
13.These supporting documents, therefore, falsify the tax returns
produced by the husband. Mr. Apte on behalf of the husband
went through the income tax returns. The arithmetical entries
by themselves do not show the true income of the husband and
must be rejected.
14.Mr. Vernekar on behalf of the wife rightly argued that if the
husband earns approximately Rs.16,000/per month he would
not be expected to have an LIC Policy of Rs. 4 lakhs, pay the
electricity bills of a few thousands of rupees each month,
purchase 1/4th
share of his uncle in the joint family property,
own a car and maintain the bank account showing large debit
and credit entries.
15.The learned Judge has, therefore, correctly considered how the
income sought to be shown by the Petitioner cannot be 7 WP.4641/2010
accepted in view of the movable and immovable properties
owned, possessed and maintained by the Petitioner. The
reasoning of the learned Judge is correct. The income of a
party before the Court has to be evaluated from the evidence
produced by the parties as a whole. It should not be a figure
which would insult the intelligence of the Court as being
wholly contrary to commonsense. Hence this must include
consideration of the properties of the husband, movable and
immovable, which would reflect his income. It may be
mentioned that the properties of the husband has to be
considered to that end though the wife is not given a share in
those properties at the interim stage.
16.The impugned order has considered the earlier order passed in
favour of the wife by the learned Magistrate’s Court granting
maintenance under the Domestic Violence Act. The impugned
order has granted further maintenance taking into account the
earlier maintenance granted.
17.The husband failed to pay the maintenance altogether until he
was directed to deposit the arrears in this Court.
18.It may be mentioned that upon strict evaluation of evidence
produced by the parties at the final hearing of the Petition
when the husband would have to stand trial that even more
evidence of his hitherto concealed income may surface. At the 8 WP.4641/2010
interim stage appreciation of the evidence on record can only
allow the Court to arrive at a reasonable figure of the income
which the husband is seen to be earning when the entire
income is not shown to Court and in fact sought to be
suppressed, specially in case of businessmen such as the
husband in this case. The extent of the income reasoned by
the learned Judge at the interim stage based upon the intrinsic
evidence in this case is most reasonable and proper. Mr. Apte’s
contention that it is based on conjunctures must, therefore, be
rejected.
19.Consequently, the impugned order is correct and the challenge
cannot be maintained.
20.Hence the order:
1. The Writ Petition is dismissed.
2. Wife shall be entitled to withdraw the amount of arrears
deposited by the husband in this Court.
3. The husband shall continue to pay the maintenance
pending the Petition as directed in the impugned order.
(SMT. ROSHAN DALVI, J.)
http://bombayhighcourt.nic.in/data/judgements/2010/CWP1407010.pdf
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