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The Tax Recovery Officer Range-2, The Commissioner of Income-Tax Versus Sri Bhishma Pithamaha

2015 (9) TMI 392 - KARNATAKA HIGH COURT

Recovery of dues from third parties - realization of dues of the Math - notice issued by the Tax Recovery Officer (TRO) to the Managers of five banks where one Sri.Ramajanam, the power of attorney holder of the writ petitioner was having his accounts - would it be appropriate for this Court to invoke extraordinarily discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who does not have any confirmed right over the properties and his filing of the wr .....

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oner who, in our view, would be a stranger to the said notices, and the writ petition, filed by a stranger or a person not named in the notices, should not have been entertained.

It is well settled law that while invoking equity jurisdiction of this Court, the bonafides of the petitioner approaching the Court is to be considered and even if the law may be, to some extent, in favour of the petitioner yet, if the bonafides of the petitioner himself is doubtful or the petitioner has not .....

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and quashing the notice dated 3-3-2006 at the behest of the writ petitioner-Bhishma Pithamaha, is liable to be set aside. - WA No. 715 of 2009 (T-IT) - Dated:- 11-8-2015 - Vineet Saran And B. Manohar, JJ. For the Petitioner : Sri K V Aravind and Sri G Kamaladhar, Advs For the Respondents : Sri A Shankar and Sri M Lava, Advs JUDGMENT The petitioner-Bhishma Pithamaha filed Writ Petition No.11433/2006 challenging five notices dated 3-3-2006 issued by the Tax Recovery Officer (TRO) of the Income Ta .....

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challenged by the writ petitioner-Bhishma Pithamaha claiming that a General Power of Attorney (GPA) had been executed by Bhishma Pithamaha in favour of Ramajanam. On the writ petition having been allowed and the notices having been quashed by the learned Single Judge with a direction to the Income Tax Department to refund the sum of ₹ 18,57,999/- to the Banks along with interest at the rate of 9% p.a., this appeal has been filed. 2. In view of the statement made by the learned counsel for .....

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ent initially in the year 1988, which attachment orders were renewed from time to time or fresh attachment order issued. The Mahanth of the Math Sri.Krishnananda Giri Gowswamy died on 18-09-1989 and thereafter, one Krishnamohanananda Giri Gowswamy claimed to be the Mahanth of the Math. The petitioner-Bhishma Pithamaha also made such claim of being the Mahanth on the basis of being legal heir of late Krishnananda Giri Gowswamy. 4. In the year 1995, the writ petitioner-Bhishma Pithamaha filed a ci .....

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of such cases would only go to show that there were disputes pending with regard to the properties in question. 5. What is also relevant to mention is that the writ petitioner-Bhishma Pithamaha had never filed his return of income till 6-1-2003, on which date he filed returns of income together for six assessment years comprising of the assessment years 1997-98 to 2002- 03. In the said returns, it was for the first time that before the Income Tax Authorities the properties in question were decla .....

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dues of the Math way back in the year 1988. Then, after the sale of properties, a notice under Section 226(3) of the Act was issued on 22-07-2005 to the writ petitioner-Bhishma Pithamaha requiring him to deposit a sum of ₹ 60,00,000/- as tax dues payable to the Department by the Math. When no deposit was made, then the impugned notices dated 3-3-2006 were issued by the Department to the five Banks requiring the Banks to pay an amount of ₹ 60,00,000/- from the accounts of Sri.Ramajana .....

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isdiction of any Court and more so a writ Court, it would be the person affected who has to approach the Court. A person may claim the money in someone elses account to be his money, but unless the person in whose account the money is in deposit accepts the same or comes forward and states that the said money belongs to such person, the said person cannot, on his own, claim right over the money in such account of some other person lying in the Bank. 8. In the present case, since the notices were .....

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stion and proceeded on the presumption that the money kept in the Bank does not belong to the Power of Attorney-Ramajanam, but to the writ petitioner. In our view, there is no basis for assuming the same merely on the basis that the said Ramajanam is the power of attorney holder of the writ petitioner. The Power of Attorney holder can always have his own accounts in which he may be having his own money as well as, may be, from the proceeds of the sale made on behalf of the writ petitioner, whose .....

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ts of the same need not have been considered, especially when the properties, which had been sold, were already attached by the Income Tax Department towards income tax dues of the Math nearly three decades back. 10. It is noteworthy that the attachment order of the properties of the Math, which are now being claimed by the writ petitioner as his properties, was challenged by the writ petitioner-Bhishma Pithamaha before the TRO. By an order dated 30-11-2006 passed under Rule 11(5) of the II Sche .....

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rt is pending. The Tax Recovery Officer held that the application filed by Bhishma Pithamaha under Rule 11(1) of Schedule II of the Income Tax Act was not tenable in law. In the light of the aforesaid facts, we have to consider the merits of the writ petition and the order passed by the learned Single Judge allowing the said writ petition. 11. We have heard Sri.K.V.Aravind, learned counsel for the appellant and Sri.A.Shankar, learned counsel for the respondent at length and have perused the reco .....

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the Math late Krishnananda Giri Gowswamy in the year 1989. For ascertaining his right, the writ petitioner had also filed O.S.No.147/1995 praying for a declaration with regard to the said properties, which was dismissed by the Trial Court. Never before 6-1-2003, the writ petitioner had ever filed his return of income or wealth and it was for the first time, on the said date i.e. 6-1-2003, he filed his first returns of income or wealth for six assessment years being 1997-98 to 2002-03. It was fo .....

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e petitioner (Bhishma Pithamaha) has any right over any part of the properties, he can challenge the same in any proceedings in a Civil Court. On the contrary, the writ petitioner had filed his claim over the properties in the Civil Court, which suit has admittedly been dismissed. As such, we do not find any concluded right of the petitioner over the properties in question. 14. Learned counsel for writ petitioner-respondent has vehemently submitted that one Original Suit No.758/2005 was filed by .....

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nt of the properties in question stands negated. In this regard, it may be stated that the suit filed by the Department was with regard to attachment orders passed by the Tax Recovery Officer and not with regard to the ownership of the properties in question. It is also noteworthy that at the time of issuance of notices dated 3-3-2006, there was no such judgment dated 19th August 2013. Even otherwise, in view of what this Court has held that notices could not have been challenged by the writ pet .....

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