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M. Kannabiran Versus The Commissioner of Income & The Income Tax Officer

2015 (6) TMI 970 - MADRAS HIGH COURT

Attachment orders - recovering the Tax - Held that:- Inasmuch as the petitioner's only source of livelihood viz., the pension, cannot be attached even for satisfaction of a court decree and, more particularly, when the petitioner's statutory appeal filed under Section 246 of the Act along with the stay application filed on 01.05.2015 is pending, the order of attachment cannot be legally sustained and hence, this Court is of the view that the petitioner is entitled for the relief sought for.

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- MR. T. RAJA, J For the Petitioner : Mr. K. Ravi Anantha Padmanabhan For the Respondent : Mr. T. Pramod Kumar Chopda And Senior Standing Counsel. ORDER Heard the learned counsel for the petitioner and Mr. T. Pramod Kumar Chopda, learned Senior Standing Counsel, who takes notice for the respondents and, with their consent, the main writ petition itself is taken up for hearing. 2. This writ petition has been filed seeking issuance of a writ of mandamus directing the Income Tax Officer, the 2nd re .....

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he petitioner, who is a retired employee was served with summons by the Income Tax Department to explain the sources of income for the house property allotted to him by the Government of Tamil Nadu at Nolambur, Chennai, for a consideration of ₹ 30,86,645/-. The petitioner, on receipt of the summons, explained that he invested the above amount by way of jewellery loan, his savings and from the contributions by his friends and father-in-law. But the 2nd respondent did not agree with the expl .....

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has filed an appeal under Section 246 of the Act within 30 days as stipulated under the Act, by ignoring their own departmental circular which finds reference in 182 ITR 413, mandating the Income Tax Officers to keep in abeyance the collection of tax until disposal of the statutory appeal by the appellate authority, and by causing great prejudice to the petitioner, an order of attachment, dated 26.03.2015 in terms of Section 281B of the Income Tax Act, attaching about six items including his Sav .....

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t, he has been put to grave prejudice and now, he is unable to eke out his bread and butter for his two school going children, his wife and age-old mother. 3.3. Continuing his argument, the learned counsel for the petitioner would submit that since the assessment order is under challenge before the appellate authority, it is no longer necessary to have provisional attachment of all the six items including the petitioner's savings bank account and other land properties. On that basis, it is p .....

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iting, it was necessary to issue the notice of provisional attachment, dated 26.03.2015, in terms of Section 281(B) of the Act, attaching six items including the petitioner's savings bank account, house properties etc. However, he would fairly submit that the provisional attachment may be confined to only item No.1 in the Specification of the Property/Assets viz., MIG Plot No.2, TNHB Scheme, Alapakkam, Chennai, since the same would fetch about ₹ 25 lakhs and, with regard to attachment .....

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lection of tax shall be kept in abeyance till the final disposal of statutory appeal by the appellate authority. Very clearly, the Circular referred to vide Instruction No.96, dated 21st August, 1969 states that - where the income determined on assessment was substantially higher than the returned income, say twice the later amount or more, the collection of the tax in dispute should be held in abeyance till the decision on the appeals, provided there were no lapses on the part of assessee. That .....

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ered under the given circumstances. It is the established proposition of law that departmental circular/guidelines are binding on the Revenue Authorities even though they may not be binding on the assessee concerned. 7. While adverting to the aspect that the Department cannot go contrary to their own Circular or Guidelines which ordain the Authorities to keep in abeyance the collection of tax until the statutory appeal preferred by the assessee before the appellate authority is disposed of, this .....

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act the bar of the proviso to sub-section (1) of Section 115 of the Code as it sought to finally decide the manner in which the decree passed in Suit No.66 of 1992 by the learned Additional and Sessions Judge, Bayana, Rajasthan, was to be satisfied. However, we are also of the view that having regard to proviso (g) to Section 60 (1) of the Code, the High court committed a jurisdictional error in directing that a portion of the decretal amount be satisfied from the fixed deposit receipts of the a .....

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hit Fund case (supra) has been considerably watered down by later decisions which have been indicated in paragraphs 15 and 16 herein before and it has been held that gratuity payable would not be liable to attachment for satisfaction of a Court decree in view of proviso (g) to Section 60(1) of the Code. 25. We also agree with Ms. Shobha that the High Court could not have gone behind the decree in the execution proceedings and the alteration in the manner of recovery of the decretal amount was er .....

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