2006 (8) TMI 131 - HC - Income Tax

Void Transaction in Jaymac Case; Remand in Munir Ahmed Case

In the Jaymac Case, the court found that the transaction was prima facie void under section 281 of the Income-tax Act, 1961, necessitating a civil court ... Applicability of section 281 of the Income-tax Act, 1961, as well as rule 11 of the Second Schedule – No attempt on the part of the Recovery Officer to discuss in detail and to come to a finding as to how the attachment could be continued and the objection filed by Md. Tariq as well as Ahmeds could be rejected. Mere reference to section 159, in our view, was not enough. A reasoned decision on that score binding Md. Tariq as a legal heir under section 159 is conspicuously absent in the order of the Tax Recovery Officer impugned in the writ petition. – transfer of property in favour of Ahmeds even despite notice of attachment could not be ignored as it was done by a registered deed of conveyance and in such circumstances the Revenue would have to approach the civil court for nullifying such transfer by filing a declaratory suit. Rule 11(6) would have no application in such case. - With regard to the attachment of property in the possession of Md. Tariq, before issue of such order of attachment the officer was to satisfy himself not only to the extent that Md. Tariq was in possession but also his inheritance of that property from Sk. Barkatullah within the mischief period. Without such satisfaction being had he was not entitled to continue the order of attachment and he was bound to release it under rule 11(4). - orders of the Tax Recovery Officer and the Commissioner, impugned in the writ petitions are liable to be set aside Issues Involved:1. Applicability of section 281 of the Income-tax Act, 1961.2. Applicability of rule 11 of the Second Schedule of the Income-tax Act, 1961.3. Validity of the attachment orders issued by the Tax Recovery Officer.4. Legal ownership and transfer of property during the pendency of tax proceedings.5. Alternative remedies and jurisdiction of the writ court.Detailed Analysis:1. Applicability of Section 281 of the Income-tax Act, 1961:Jaymac Case:- Jaymac India had assessed dues for the assessment years 1982-83, 1983-84, and 1984-85. They entered into a lease agreement with Orient Beverages Limited but assigned their rights to Jaymac Lasetron before the formal lease deed was executed.- The Tax Recovery Officer issued prohibitory orders to recover tax dues from Jaymac India, challenging the transaction as a sham to evade tax.- The court found that Jaymac Lasetron was the legal owner by virtue of the lease deed executed by Orient Beverages. However, the transaction was prima facie void under section 281, necessitating a civil court declaration.Munir Ahmed Case:- Sk. Barkatullah transferred portions of his property to his wives before his death, and these properties were never included in his wealth-tax or income-tax returns.- The Tax Recovery Officer attached the property for unpaid tax dues of Sk. Barkatullah.- The court noted that the transfers by Sk. Barkatullah were not void under section 281 unless proven to be within the mischief period, requiring a civil court declaration.2. Applicability of Rule 11 of the Second Schedule:Jaymac Case:- The Tax Recovery Officer issued prohibitory orders against Jaymac Lasetron, which were upheld by the Commissioner.- The court held that the Recovery Officer must release the property from attachment under sub-rule (4) if the third party (Jaymac Lasetron) is found to be the legal owner. The Revenue must seek a civil court declaration to nullify the transfer.Munir Ahmed Case:- The Tax Recovery Officer rejected the objections filed by Munir Ahmed and Nashir Ahmed, upholding the attachment order.- The court emphasized that the Recovery Officer must investigate the claim or objection under rule 11 and release the property if it does not belong to the defaulter. The objections of Ahmeds should have been considered in detail.3. Validity of the Attachment Orders:Jaymac Case:- The attachment order against Jaymac Lasetron was found to be invalid as the Recovery Officer did not investigate the claim properly.- The court directed the Revenue to file a civil suit for a declaration that the transfer was void.Munir Ahmed Case:- The attachment order was upheld without proper investigation by the Recovery Officer.- The court remanded the matter back to the Tax Recovery Officer to dispose of the objections within six months.4. Legal Ownership and Transfer of Property:Jaymac Case:- Jaymac Lasetron was found to be the legal owner, and the transaction was prima facie void under section 281.- The court directed the Recovery Officer to release the property and the Revenue to seek a civil court declaration.Munir Ahmed Case:- The property was transferred by Sk. Barkatullah to his wives and then to Md. Tariq and Ahmeds.- The court held that the Recovery Officer must investigate the legal ownership and possession before continuing the attachment.5. Alternative Remedies and Jurisdiction of the Writ Court:Jaymac Case:- The writ petition was dismissed by the single judge, but the appellate court allowed the appeal, directing the Revenue to seek a civil court declaration.Munir Ahmed Case:- The writ petition was dismissed on the ground of alternative remedy, but the appellate court allowed the appeal, remanding the matter back to the Tax Recovery Officer for proper investigation.Conclusion:- Jaymac Case: The appeal was allowed, and the order of the learned single judge was quashed. The attachment order was to continue for three months or until a civil court order.- Munir Ahmed Case: The appeal was allowed, and the order of the learned single judge was quashed. The matter was remanded back to the Tax Recovery Officer to dispose of the objections within six months.Both appeals were disposed of without any order as to costs.