TMI Blog2018 (8) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the original owner. Section 281 of the Income Tax Act provides for declaring certain transfers to be void. - However, proviso to Section 281 provides that such transfer or charge may not be declared void if such transfer or charge is made for adequate consideration and without notice of pendecny or completion of such proceeding or without the notice of any tax liability or other sum payable by the assessee. Failure to follow procedure under the 2nd Schedule - Held that:- From the affidavit as well as from the additional affidavit the department has not been able to bring on record service of notice under Rule 2 of Schedule 2, only documents on record along with the additional affidavit are the order of attachment of immovable property whereas no notice as contemplated under Rule 2 is found on record. Moreover considering the affidavit filed on behalf of the SubRegistrar, Memnagar3, Ahmedabad City, it is clear that for the first time the order of attachment was given effect to by the SubRegistrar, Memnagar only on 26.06.2015, when the charge was registered in Index II. This obviously is almost six and a half years after sale deed in favour of petitioner. Impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty along with Index no. II that the charge of the Income Tax Department has been registered on 08.12.2017 and thereafter, on 19.12.2017, the respondent issued a notice of auction to satisfy the outstanding demand of Income Tax Department against Shri Virenkumar C. Thakkaroriginal owner. It is at this stage that the petitioner was constrained to file the petition. 7. Learned advocate for the petitioner submitted that the impugned order of declaring the sale deed dated 11.12.2008 as null and void is not only arbitrary and illegal but also without any jurisdiction. It is submitted that therefore, the subsequent action of auctioning the property under communication dated 19.12.2017 is also illegal. 8. It is submitted that the impugned order declaring the sale dated 11.12.2008 as null and void is also required to be quashed as the same is made after unreasonable delay of six and a half years and therefore, the action of the respondent does not fall within a reasonable period. 9. It is submitted that the respondent no.1 has no jurisdiction, power or authority to declare the sale transaction as null and void and the same is contrary to the ratio of the Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the copies were also sent to the SubRegistrar concerned. 11. Learned advocate for the respondent took this Court through the documents produced on record which contain notice of demand, the certificate, the order of attachment of immovable property as well as the panchnama by which such property is attached. 12. Learned AGP on behalf of respondent no.2 draws attention of this Court to the affidavit of the SubRegistrar, Memnagar3, Ahmedabad City wherein, responding to the contentions raised by the respondent no.1, regarding attachment of the property and submitted that the order of attachment was received by SubRegistrar of Memnagar only on 26.06.2015 and subsequent there to the charge was registered in Index II. 13. The Court has heard the rival submissions and perused the documents on record. 14. The property in question was transacted by a registered sale deed executed on 11.12.2008, which came to be registered on the same day with the SubRegistrar Office, Ahmedabad3, in favour of the petitioner and executed by one Shri Mahesh Sanmukhbhai Mistry acting as the power of attorney of original owner Shri Virenkumar Chhotalal Thakkar. This sale deed is for a considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be avoided provided one of the two conditions contained in the proviso is satisfied. Under such circumstances, the transferee can demonstrate that the transaction had taken place with the previous permission of the Assessing Officer or that the same was entered into for adequate consideration and without notice of pendency of such proceedings or without notice of such tax or other sum payable by the assessee. 9. This element of the transaction being with adequate consideration and without notice would equally apply to the assessee as well as the transferee. In a given case, it may even be open for the assessee to establish that the transaction was for adequate consideration without notice. In a given case, even if the assessee had notice of the pendency or the outstanding tax or sum payable, the transferee can still take shelter of the transactions having been entered into by him for adequate consideration and without notice. It is, therefore, that the courts have read into this provision the requirement of hearing the transferee also. Quite apart from this, as would be clear from the discussion hereinafter, courts have taken a view that Subsection( 1) of Section 281 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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