Saturday, August 10, 2013

Inc.Tax returns of husband not believed becz all cheating tax !!! so award more maintenance to wife !! :-(

Inc.Tax returns of husband not believed becz lots of ppl are cheating tax !!! so courts can award more maintenance to wife !! :-( 



Learnings
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* husband wife fight
* they go to court
* wife says husband is a biz man andd earns a lot
* huband files his income tax return : profit and loss account of the year 2006-2007 is showing profit of Rs. 1,68,484
* court says "....figure appearing in the income tax returns and also in the balancesheet of Saarth Enterprises cannot be accepted as true income. There is always a tendency to show less income to avoid income tax and other taxes. So the submissions of learned counsel for the husband that income of husband is Rs.20,000/- p.m. cannot be accepted...."
* so interim maintenancec assessed at Rs 12,000 p.m.


******************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC DOT IN SITE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 CIVIL APPELLATE JURISDICTION

 WRIT PETITION NO.6647/2011

Mr.Vivek Rajkumar Kothadiya,
Age-42 years,Occ.Business,
R/at 1195/4C, Deep Gauri Bldg.,
Deeparambh Society,Ghole Road,
Shivajinagar, Pune-411 005.

Vs.

Ms.Neha Vivek Kothadiya,
Age-35 yrs.Occ.Household,
R/at C/o K.D.Paliya,
Flat No.13

Mr.R.M.Pethe for Petitioner

Mr.Hitesh Vyas for Respondent

CORAM: MRS.MRIDULA BHATKAR,J

RESERVED ON : 3rd February, 2012.

PRONOUNCED ON :22nd March,2012

J U D G M E N T 

. This Petition is filed by the petitioner/husband challenging the order passed by the Principal Judge, Family Court No.1,Pune dated 30/4/2011 in Petition no.375/2009 by which the learned Family Court Judge allowed the application for interim maintenance and directed the present petitioner to pay Rs.15,000/- p.m. as interim maintenance to the wife/respondent since 13.4.2009 till the disposal of that petition. The main ground of challenge of the order is that no evidence in respect of the monthly earning of the petitioner/husband is produced before the Family Court by the wife and the Family Court Judge has erred in holding his income as Rs.1,50,000/- p.m.. It is submitted by the learned counsel for the husband that at present the petitioner/husband is earning hardly Rs.20,000 to Rs.25,000/- p.m. and the trial Court ought to have given weightage to the fact that the daughter of the parties is residing with the husband all along. On 10/9/2008 the respondent/wife abandoned the petitioner and daughter and started residing with her father at Baramati. The respondent wife has started her own business of ready made garments, dress material and sewing at Baramati. So she has capacity to earn and she has her independent income. She has acquired a Bachelor degree in Commerce. The income tax returns filed by the petitioner should have been considered by the Family Court Judge. It is submitted that the amount of interim maintenance is to be reduced. Mr.Pethe argued that the xerox copies of Income Tax returns of the husband of the year 2007-2008 , 2008-2009 are produced. Extracts of balancesheet of Saarth Enterprises are produced. Net profit and loss account of the year 2006-2007 is showing profit of Rs. 1,68,484/-. The earning of the husband per month is hardly 15000/- to Rs. 20,000/- per month. The Principal Judge of the Family Court has committed an error in accepting the income of Rs.50,000/-p.m.. The amount of maintenance Rs.15,000/- is excessive. 

2 Learned counsel Mr.Vyas for the respondent-wife submitted that the petition for restitution of conjugal rights is filed by the wife in the Family Court, Mumbai. It is contended that the respondent is having business of fabrication at M.I.D.C.Baramati and nearly 15 workers are employed in the said factory. His income is Rs.1,50,000/- p.m. from the said business. He owns two bed room- hall- kitchen flat in Baramati and also owns one Indica Car and three moter cycles. He has LIC policies, shares,fix deposits and thus he has invested good amount of money. He gets monthly dividend out of his investments and thus, his monthly income is more than Rs.2 lacs. He does not have any responsibility. 

3 The husband has produced the balancesheet of Saarth Enterprises of April,2005-March-2006 which shows the list of his fixed assets. The total assets are shown as Rs.9,74,951/-. The price of the machinery and plant is shown Rs.15,455/-. The cost of tools and equipments is shown as Rs.2,529/-,cost of machinery as Rs.6808/-,and cost of land Rs.24,000/-. The income tax returns of the year 2009-2010 discloses total income of Rs.1,16,045/-, 2008-2009 Rs.93,666/-. In Vinod Dulerai Mehta Vs.Kanak Vinod Mehta ,reported in 1989(2) Bom.C.R.217 it was held that the Court is not bound to accept the real income of the parties on the basis of income tax returns filed by them, but other social and financial factors are to be considered while fixing the amount. In view of ratio of this ratio, the figure appearing in the income tax returns and also in the balancesheet of Saarth Enterprises cannot be accepted as true income. There is always a tendency to show less income to avoid income tax and other taxes. So the submissions of learned counsel for the husband that income of husband is Rs.20,000/- p.m. cannot be accepted. The assets of the husband are brought on record which are not disputed.However, on the basis of other assets and standard of living the income of the husband can be decided approximately. It appears that he owns moderate assets which cannot be said as huge investments. Except the oral submissions of the wife, there is no evidence to show that he has employed 15 workers in his workshop. It is difficult for the wife to bring the proof of exact income of the husband who is not salaried employee. He runs a business or small scale unit. Though he is running business of fabrication in M.I.D.C.Baramati, his income cannot be Rs.1,50,000/-as earlier claimed by the wife. He has moderate income. In absence of specific proof of the income we have to rely on the assets of the person, the place where he is residing, nature of the business, educational qualification are the other factors to assess the income of a person. Undoubtedly, such fixing of the income is based on guess work and perception and the experience of that Presiding Officer. The assets like three motor cycles, they are required for the business. Considering the nature of his business, I am of the view that amount of Rs.50,000/-which is accepted as monthly income of husband is to some extent on higher side. I think the monthly income of the husband is to be fixed on the lower side i.e. Rs.40,000/-p.m.. Lastly it is to be noted that the husband is looking after his daughter who is school going and that expenditure has to be taken into account. So, the amount of interim maintenance is reduced by Rs.3,000/-. Hence the order.

4 The petition is partly allowed.

Order of interim maintenance of Rs.15,000/-p.m. is modified as , interim maintenance is fixed at Rs.12,000/-p.m..

Mrs.Mridula Bhatkar,J.



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Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist