TMI Blog2017 (1) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... operty belongs to the petitioner. The boundary shown in the Schedule also does not indicate a property belonging to the petitioner to be adjoining to the subject property. Be that as it may, the question of under-valuation having not been specifically considered in Exhibit P9, the same would have to be considered. The petitioner would appear before the Tax Recovery Officer within two weeks from the date of receipt of a certified copy of the judgment and file objections producing documents, if any, within that time. The Tax Recovery Officer would grant an opportunity for hearing within two weeks therefrom and pass orders within two weeks from the date of hearing. It is made clear that the directions are issued by this Court itself, since otherwise the time would run out on notice being issued and hearing being posted by a further notice. - W.P.(C).No.11758 of 2010-T - - - Dated:- 20-1-2017 - K. Vinod Chandran, J FOR THE PETITIONER : SRI.ABRAHAM MAMPALLIL, SRI.KURYAN THOMAS, SRI.RAMESH CHERIAN JOHN FOR THE RESPONDENT : SRI.JOSE JOSEPH, SC, FOR INCOME TAX JUDGMENT The petitioner, the wife of an assessee in default, is before this Court aggrieved by Exhibits P9, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. It is further contended that the Assessing Officer cannot proceed against the petitioner's property for recovery of dues of another without filing a suit for declaration of the conveyance as void, as has been held in Tax Recovery Officer II v. Gangadhar Vishwanath Ranade [(1998) 6 SCC 658]. There is an objection raised that the survey number of the property differs and the attachment being bad on that ground also. The ground of limitation is also raised based on Rule 68B of Schedule II of the IT Act. 5. The difference in Survey number in the attachment order has been rectified by the Recovery Officer who attached the properties. The ground that no notice has been served, on the petitioner who is also an assesssee, is untenable insofar as the Department does not intend to declare the petitioner as an assessee in default. The proceedings against the petitioner's property was initiated based on Explanation to sub-section (1) of Section 222 of the IT Act. Section 222 is extracted hereunder: 222. (1) When an assessee is in default or is deemed to be in default in making a payment of tax, the Tax Recovery Officer may draw up under his signature a statement i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the order of the Tribunal is said to be dated 03.11.2008. On the Department being unable to recover any amounts from the petitioner's husband for reason of there being no property in his name, the Department proceeded against the property of the petitioner under the Explanation to Section 222(1). 7. The Explanation deems any property transferred directly or indirectly on or after the 1st day of June, 1973 by the assessee to his spouse or minor child or son's wife or son's minor child otherwise than for adequate consideration and which is held by the aforesaid persons; to be the assessee's movable or immovable property; which can be proceeded against under sub-section (1) of Section 222. Hence, the property, which stands in the name of the petitioner, has not been proceeded with for any default committed by the petitioner herself. The property was conveyed to the petitioner by title deed at Exhibit P1 and correction deed at Exhibit P2 on 06.05.1991 and 24.12.1991, which are within the block period taken up for assessment. The conveyance was made during the period in which suppression was found against the assessee, the petitioner's husband, which, along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 222 (1); by which the proceedings against the petitioner s property was initiated, is substantially different from Section 281. 10. Section 222(1) read with the Explanation of the IT Act enables recovery of arrears due from an assessee by proceeding against any movable or immovable property of the assessee, and a property which stood transferred directly or indirectly to his spouse or minor child or son's wife or son's minor child. By sub-section (2), the Tax Recovery Officer is specifically empowered to proceed against such property, which is deemed to be included in the assessee's movable and immovable property, for recovering any arrears due from the assessee. In such circumstance, the proposition as laid down in Gangadhar Vishwanath Ranade ( supra ) would not be applicable. 11. The petitioner is the wife of the assessee in default who has been proceeded against for the income-tax dues for the block period 1986-87 to 1995-96. The transfer has been made on 06.05.1991; within the block period and during which period the assessee is said to have practised suppression and evasion. The act of the assessee who practised suppression and to avoid recovery, on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issues, which are to be examined by the original authority, on the basis of the location of the properties and the then prevalent market value. 14. The contention of the petitioner that the property did not have a proper access and, hence, was not of value but for the petitioner who has the adjoining land, cannot be countenanced for two reasons. The title deed produced at Exhibit P1 in its Schedule shows a pathway on one of the boundaries. Then there is nothing produced to show that the adjoining property belongs to the petitioner. The boundary shown in the Schedule also does not indicate a property belonging to the petitioner to be adjoining to the subject property. Be that as it may, the question of under-valuation having not been specifically considered in Exhibit P9, the same would have to be considered. The petitioner would appear before the Tax Recovery Officer within two weeks from the date of receipt of a certified copy of the judgment and file objections producing documents, if any, within that time. The Tax Recovery Officer would grant an opportunity for hearing within two weeks therefrom and pass orders within two weeks from the date of hearing. It is made clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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