TMI Blog2019 (6) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... or objection. The procedure for such investigation and the manner in which the proceedings to be conducted are enumerated under Rule 11 of the said Rules. If the petitioner's claim is that the property is not liable for such attachment, then the petitioner has to make a claim before the Tax Recovery Officer, and for such reason, the petitioner could not have approached this Court invoking the jurisdiction under Article 226 of the Constitution of India. Therefore, the Court holds that the petition is not maintainable. However, considering the fact that the Income Tax Act and Rules framed thereunder, especially Rule 11 under the 2nd Schedule, provides for a remedy to the assessee, the petitioner is at liberty to avail such a remedy. We are fortified by a decision of the Supreme Court in the case of Isha Beevi and others v. Tax Recovery Officer, Quilon and others [ 1975 (9) TMI 2 - SUPREME COURT] In the result, all the three writ-applications fail and are hereby rejected as not maintainable with a direction to the writ-applicants to file a claim before the respondent in terms of Rule 11(1) of the Second Schedule to the Income Tax Act, 1961, within a period of four weeks fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izen of India. The petitioner is, therefore, entitled to the Constitutional rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. The respondent is a 'State' within the meaning of Article 12 of the Constitution. 2. 2 The petitioner is a Karta of Nilesh Popatlal Patel HUF. The petitioner also runs a company by name of Konark Combustion Private Limited which is situated at Plot No. 85/1 + 85/2/1 GIDC, Vatva. The petitioner had entered into a supplementary agreement for transfer of the Plot No. 85/1 + 85/2/1 on 22. 03. 2016 with M/s Newempire Infrastructure Pvt. Ltd. An Office Order by GIDC for transfer of Plot No. 85/1 + 85/2/1 was also made in favour of the petitioner on 29. 03. 2016. Since then the petitioner was recognized as the allottee of the impugned plot of land by the GIDC. The petitioner has been using the plot of land on which the petitioner has a running business. Subsequently, a sale deed was also entered into between the petitioner and sellers dated 01. 03. 2017. Complete payment as per the sale deed has also been made by the petitioner. The petitioner was thus enjoying the rightful ownership and possession of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Mr. Soparkar, the learned senior counsel appearing for the writ-applicant, vehemently submitted that the Tax Recovery Officer, Ahmedabad, committed a serious error in passing the order of attachment of immovable property by placing reliance on Rule 48 of the Second Schedule to the Income Tax Act, 1961. According to Mr. Soparkar, Rule 48 provides for attachment of the immovable property of the defaulter. Mr. Soparkar submitted that the immovable property in the case on hand in the form of a plot in the estate of the GIDC is no longer of the defaulter, and in such circumstances, there could not have been any attachment of the same. 7. Mr. Soparkar further submitted that the impugned order u/s 222 is patently bad, illegal, contrary to law and in gross violation of the fundamental rights guaranteed to the petitioner under Articles 14 and 19(1)(g) of the Constitution of India. He submitted that the Tax Recovery Officer has erred fundamentally in attaching the property of the petitioner u/s 222. It is submitted that the petitioner is not declared nor is deemed to be an assessee in default. It is further submitted that Section 222 enables the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Divisional Manager, GIDC, Ahmedabad. The Office Order reads thus : OFFICE ORDER A Plot No. 85/1 + 85/2/1, admeasuring 1195. 50 + 105 (Road C. P. ) sq. mtrs. was allotted to M/s. New Empire Infrastructure Pvt. Ltd. , The Lease Deed was executed on 1. 11. 80. The Licece had applied to the Corporation for transfer the said plot in favour of Shri Patel Nilesh Popatlal, (HUF). Permission for transfer was given by the Divisional Manager, Ahmedabad as per Letter No. GIDC/DM/ABD/ TFR/VTW/364, Dated 5. 3. 2016. The Lessee has paid all dues of the Corporation up to 2015- 16. He has also paid the Transfer Fee amounting to Rs. NIL/-. The Supplementary agreement has therefore been executed on 22. 3. 16, between the Corporation/Lessee and Transferee. The plot now therefore stands transferred in the name of M/s. Shri Patel Nilesh Popatlal, (HUF) w. e. f. 29. 3. 2016. This transfer shall not be considered as valid under the building bye-laws of the Corporation, if any unauthorized construction is carried out by the transferor. If any unauthorized construction is carried out, the same shall not be considered that Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writapplicant can make his stance clear by adducing necessary evidence. Mr. Sanghani would submit that whatever may be the developments and whatever may be the transactions, the same have no legal footing, and in such circumstances, the authority concerned committed no error in passing the order of attachment. 15. Mr. Sanghani placed strong reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondent duly affirmed by the Tax Recovery Officer 3, Ahmedabad : 3. I submit that in the instant case, proceedings in the case of M/s. New Empire Infrastructure Private Limited were initiated under Section 143(2) of the Act. A notice under Section 143(2) of the Act was issued on 5. 4. 2016 and thereupon, assessment proceedings proceeded further which culminated into an assessment order under Section 143(3) of the Act on 31. 12. 2016 raising a demand of ₹ 4,79,50,640=00. The said demand was certified for recovery to the Tax Recovery Officer 10 Mumbai for Assessment Year 2014 2015 on 17. 2. 2017. ITCP 1 was issued and served on the assessee on 21. 2. 2017. Pursuant to the said ITCP 1, assessee did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to above, Mr. Sanghani prays that as there is an alternative remedy available to the writapplicant, he should be asked to avail the same and this writapplication may not be entertained. 18. On 8th October 2018, a coordinate bench of this Court passed the following order : 1. Petitioners have purchased individual industrial plots situated at GIDC, Vatva, which was originally alloted to one Newempire Infrastructure Private Limited, a private limited company by the GIDC. The permission for transfer was granted by GIDC on or around 29. 03. 2016 in all the cases. According to the petitioners, they are occupying respective plots since then and have also started their industries by setting up their plants and machineries. The respondent-Tax Recovery Officer of the Income Tax department has passed a common order dated 22. 11. 2017 against the erstwhile owner attaching the properties in exercise of powers under section 222 of the Income Tax Act, 1961 ('the Act' for short). Counsel for the petitioners submitted that the petitioners are bona-fide purchasers for value. On the date of the transfer, there were no income tax dues of the seller out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very Officer may draw up under his signature a statement in the prescribed form specifying the amount of arrears due from the assessee (such statement being hereafter in this Chapter and in the Second Schedule referred to as certificate ) and shall proceed to recover from such assessee the amount specified in the certificate by one or more of the modes mentioned below, in accordance with the rules laid down in the Second Schedule-- ( a) attachment and sale of the assessee's movable property; ( b) attachment and sale of the assessee's immovable property; ( c) arrest of the assessee and his detention in prison; ( d) appointing a receiver for the management of the assessee's movable and immovable properties. Explanation :- For the purposes of this sub-section, the assessee's movable or immovable property shall include any property which has been 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 consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this Schedule to pay the arrears, or ( b) (in the case of movable property) at the date of the attachment, he had some interest in, or was possessed of, the property in question. ( 4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale. ( 5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tachment and sale of immovable properties of the defaulter with which alone we are concerned in these writ applications are in pari materia with those contained in Order 21 of the Code of Civil Procedure. Rules 48 to 51 of the Second Schedule relating to attachment of the immovables correspond to Rule 54 of Order 21 of the Code of Civil Procedure. The claim petitions and the investigation into those claims and orders to be made therein are provided in Rule 11 of the Second Schedule to the Act and to the same effect as in Rules 58 to 61 and 63 of Order 21 of the Code of Civil Procedure. The provisions relating to proclamation of sale, the contents of the proclamation, the mode of making the proclamation, the time of sale and adjournments are contained in Rules 52 to 55 and 15 of the Second Schedule corresponding to Rules 64, 66 to 69 of Order 21 of the Code of Civil Procedure. The provisions in Rules 57 to 68 of the Second Schedule relating to deposit by the purchasers, the procedure to be followed in default of payment, the applications to set aside the sale or confirmation of sales are identically worded as in Rules 83 to 94 of Order 21 of the Code of Civil Procedure. Thus, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of an order of attachment of immovable property and the writ-applicant has straightway approached this Court and filed this writ-application. In our considered view, this writ-application is not the proper remedy which the writ-applicant should have availed. In this regard, Rule 11 referred to above is very clear. In terms of Rule 11 if any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection. The procedure for such investigation and the manner in which the proceedings to be conducted are enumerated under Rule 11 of the said Rules. Therefore, if the petitioner's claim is that the property is not liable for such attachment, then the petitioner has to make a claim before the Tax Recovery Officer, and for such reason, the petitioner could not have approached this Court invoking the jurisdiction under Article 226 of the Constitution of India. Therefore, the Court holds that the petition is not maintainable. However, considering the fact that the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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