TMI Blog2022 (7) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... tally, a Division Bench of this Court in the case of Ms. Ruchi Mehta V/s Union of India [ 2007 (8) TMI 270 - BOMBAY HIGH COURT] which is also impugned in the present petition, followed the ratio of the judgment in Gangadhar s case and declared the order passed by the TRO in terms of Section 281 of the Act, 1961 as void and without jurisdiction. The order was also held to be bad on the ground that no opportunity was at all given to the Petitioner in the said case before exercising jurisdiction under Section 281, which was thus held to be in violation of principles of the natural justice. Be that as it may, following the ratio of the Supreme Court judgment in the case of Tax Recovery Officer V/s. Gangadhar Vishwanath Ranade [ 1998 (9) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed consideration. 4. It is submitted that after about 10 years of purchase of the said land by the Petitioner, Respondent No. 2 passed the impugned order dated 27 th June, 2007, purportedly in exercise of powers under Section 281 of the Act, 1961, on the ground that the assessee i.e. K. K. Mistri had created a charge on the said property and parted with the possession by way of sale deed in favour of the Petitioner during the pendency of the assessment proceedings against the assessee and was, therefore, void in terms of Section 281(1) of the Income Tax Act, which reads as under: 281. Certain transfers to be void.-(1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the objector. It was held : 12. In the light of this discussion about the provisions of Order XXI rules 58 to 63, if we examine rule 11(4) of the Second Schedule to the Income-tax Act, it is clear that the TRO is required to examine whether the possession of the third party is of a claimant in his own right or in trust for the assessee or on behalf of the assessee. If he comes to a conclusion that the transferee is in possession in his or her own right, he will have to raise the attachment. If the department desires to have the transaction of transfer declared void under section 281, the department, being in the position of a creditor, will have to fle a suit for a declaration that the transaction of transfer is void under section 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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