TMI Blog2007 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... tition will have to be allowed. We make it clear that the respondents are entitled to proceed against the suit property, by following the due procedure. - - - - - Dated:- 28-8-2007 - Judge(s) : F. I. REBELLO., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by F.I. REBELLO J.- Rule. Heard forthwith. The petitioners have approached this court to impugn the order dated June 27, 2007, in respect of the property identified at Sr. No.2 of the said order. The order is purported to have been made by respondent No. 3 in the purported exercise of his powers under section 281 of the Income-tax Act, 1961. One M/s. Simplex Enterprises had booked and was allotted shop No. 4 admeasuring 2403 sq. ft. (with 1437 sq. ft. of Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was ever made with the builders in this regard during the four years period from January 23, 1997, to November 30, 2000 (i.e. when the first letter was written to the petitioner). Some other reason was also given. By order dated August 27, 2003, the Commissioner held that the notice is non est and set aside the action taken of attachment of the subject property. Consequently, attachment of shop No. 4 was vacated. It appears that thereafter respondent No. 3 came to pass the impugned order on August 27, 2007. By the impugned order respondent No. 3 declared the sale of the shop in November, 1998, as null and void. On behalf of the petitioner it was submitted, firstly, relying on the judgment of the Supreme Court in TRO v. Gangadhar Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat section 281 merely declared what the law was. The Supreme Court further held that section 281 did not prescribe any adjudicatory machinery for deciding any question which may arise under section 281. The court further observed that in order to declare a transfer as fraudulent under section 281, appropriate proceedings would have to be taken in accordance with law in the same manner as they are required to be taken under section 53 of the Transfer of Property Act. After considering various provisions including rule 11 in the Second Schedule to the Income-tax Act, the court was pleased to hold as under: "If the Department desires to have the transaction of transfer declared void under section 281, the Department being in the position of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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