1997 (1) TMI 59 - HC - Income Tax

Court sets aside order, remits for fresh adjudication focusing on possession over title.

The court set aside the impugned order and remitted the matter to the Tax Recovery Officer for fresh adjudication, emphasizing the importance of ... Immovable Property, Movable Property, Restriction On Registration, Tax Recovery Officer, Writ Petition Issues Involved:1. Validity of the attachment of property for income-tax dues.2. Jurisdiction of the Tax Recovery Officer to declare sale deeds void.3. Applicability of Section 230A of the Income-tax Act.4. Applicability of Section 281 of the Income-tax Act.5. Determination of possession and its character under Rule 11 of the Second Schedule.6. Adjudication of title in summary proceedings under Rule 11.7. Maintainability of the writ petition despite alternative remedy.Detailed Analysis:1. Validity of the attachment of property for income-tax dues:The petitioners challenged the attachment of the property, claiming it belonged to the firm K. S. M. Hassonjee and Sons and was sold to them by senior partner Mulla Akbar Ali. The Tax Recovery Officer attached the property to satisfy income-tax dues from defaulters Hatimali and Adamali, asserting that the property originally belonged to Mulla Akbarali and his brother Mulla Fidali, and thus the defaulters inherited a 1/4 share each.2. Jurisdiction of the Tax Recovery Officer to declare sale deeds void:The petitioners argued that the Tax Recovery Officer had no jurisdiction to declare the sale deeds void. The court agreed, noting that under Rule 11 of the Second Schedule, the Tax Recovery Officer does not have the jurisdiction to declare a document void but only to investigate claims of possession and interest.3. Applicability of Section 230A of the Income-tax Act:The Tax Recovery Officer found the sale deeds void for violating Section 230A of the Income-tax Act. The court, however, held that since the consideration for each sale deed did not exceed Rs. 50,000, Section 230A was not applicable. The court cited several precedents supporting this interpretation, including Samudrala Ganesh Rao v. State of Andhra Pradesh [1988] 174 ITR 304 (AP).4. Applicability of Section 281 of the Income-tax Act:The Tax Recovery Officer concluded that Section 281 did not apply because the sale deeds were not executed by the defaulters. The court agreed, emphasizing that Section 281 cannot be invoked in summary proceedings under Rule 11 to declare transactions void for defrauding the Revenue.5. Determination of possession and its character under Rule 11 of the Second Schedule:The court emphasized that the central point in a Rule 11 proceeding is to adjudicate possession and its character. The Tax Recovery Officer failed to address who was in possession at the date of service of notice and whether the possession was independent of the defaulter. The court noted that the burden of proof lies with the claimants to show possession independently of the defaulter.6. Adjudication of title in summary proceedings under Rule 11:The court reiterated that complicated questions of title should not be adjudicated in summary proceedings under Rule 11. The Tax Recovery Officer erred by focusing on title rather than possession. The court cited multiple precedents, including Gangadhar Vishwanath Ranade (No. 1) v. ITO [1989] 177 ITR 163, reinforcing that the primary inquiry should be about possession.7. Maintainability of the writ petition despite alternative remedy:The respondents argued that the writ petition should be dismissed due to the availability of an alternative remedy. The court, however, held that the writ petition is maintainable, especially when the challenge is based on the jurisdiction of the authority. The court cited L. Hirday Narain v. ITO [1970] 78 ITR 26, AIR 1971 SC 33, and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186, to support this view.Conclusion:The court set aside the impugned order and remitted the matter to the Tax Recovery Officer for fresh adjudication, focusing on possession and its character as mandated by Rule 11 of the Second Schedule. The court instructed the Tax Recovery Officer to dispose of the matter expeditiously, adhering to the principles outlined in the judgment.