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2001 Supreme(Cal) 710
High Court Of Calcutta
PINAKI CHANDRA GHOSH
MUNIR AHMED AND ANR. - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
W. P. 1024 Of 2000
Decided On : 11/28/2001
PAL, Som
Disputed questions of fact cannot be decided in a writ petition.
Headnote:
INCOME TAX - ATTACHMENT - OF PROPERTY - JURISDICTION OF TAX RECOVERY OFFICER - SCOPE - PROPERTY NOT FORMING PART OF ESTATE OF DECEASED ASSESSEE - ATTACHMENT WITHOUT ISSUANCE OF NOTICE OF DEMAND - JURISDICTION OF TAX RECOVERY OFFICER - EXTENT - CONCLUSIVENESS OF ORDER - WHETHER ATTACHMENT PROCEEDINGS NULL AND VOID - WHETHER PROPERTY ATTACHED PRIOR TO TRANSFER - DISPUTED QUESTION OF FACT - NOT DECIDABLE IN WRIT JURISDICTION - SUIT TO BE FILED BEFORE PROPER FORUM.
Fact of the Case:
In 1994, the Income-tax Department attached the property of Sk. Barkatulla (deceased) to recover tax dues. The property was purchased by petitioners in 1994 from Md. Tariq, who had received the property as a gift from his stepmother, Khalida Begum, in 1974. Khalida Begum had received the property from her husband, Sk. Barkatulla, in 1966. The petitioners filed a writ petition challenging the attachment, arguing that the property was not part of the assets of the deceased and that the attachment was therefore without jurisdiction.
Finding of the Court:
The court held that the Tax Recovery Officer had jurisdiction to decide the objection filed by the petitioners against the attachment. However, the court also held that the question of whether the property was part of the assets of the deceased and whether the attachment was valid were disputed questions of fact that could not be decided in a writ petition. The court directed the petitioners to file a suit before the proper forum to establish their right and title to the property.
Issues: 1. Whether the Tax Recovery Officer had jurisdiction to decide the objection filed by the petitioners against the attachment. 2. Whether the property was part of the assets of the deceased and whether the attachment was valid.
Ratio Decidendi: 1. The court held that the Tax Recovery Officer had jurisdiction to decide the objection filed by the petitioners against the attachment under Rule 11, Schedule II of the Income-tax Act. 2. The court held that the question of whether the property was part of the assets of the deceased and whether the attachment was valid were disputed questions of fact that could not be decided in a writ petition.
Final Decision: The court disposed of the writ petition and directed the petitioners to file a suit before the proper forum to establish their right and title to the property. The court also directed the respondent authorities not to take any steps in respect of the attachment order for four weeks if the petitioners took steps to file a suit.
( 1 ) THIS is an application filed by the petitioners, inter alia, praying for issuance of a writ in the nature of mandamus commanding respondents Nos. 1 to 4 to withdraw, cancel, recall and rescind the impugned order of attachment of premises Nos. 40a and 40b, Circus Avenue, Calcutta (hereinafter referred to as "the said premises"), issued by respondent No. 4 in Certificate Case Nos. 97/tr- (VII)/15 (1) of 1989-90 and 98/tr- (VII)/ 15 (1) of 1989-90 and the proclamation of sale dated February 26, 1996, and to forebear from giving any effect or further effect thereto in any manner whatsoever and further to recall and rescind the impugned order dated July 21, 1997, passed by respondent No. 4 and to forebear from giving any further effect thereto and further to refund the amount so collected by them or by their servants or agents from the tenant of the said premises in question and further injunction restraining them from collecting further rent from respondent No. 5.
( 2 ) THE facts of the case briefly are as follows : one Sk. Barkatulla (since deceased) purchased the said premises on March 30, 1963. On January 13, 1966, the said Barkatulla transferred a portion of the said premises in favour of his first wife, Khalida Begum, by a registered deed. On January 18, 1966, another portion of the said premises was transferred in favour of his second wife, Zainab Begum, by a registered deed and on February 15, 1966, the said Barkatulla transferred the remaining portion of the said premises to his third wife, Masihunnessa Begum, by another registered deed.
( 3 ) ON July 1, 1974, the second wife made an oral gift of her portion of the said premises to her minor step-son, Md. Taruq, respondent No. 6 herein and later registered a deed of gift on December 17, 1974. On January 8, 1976, a portion of the said premises was leased out to Syndicate Bank for a period of five months and the lease was renewed twice for further five years consecutively. Income-tax returns were filed by the said Khalida Begum, Zainab Begum and Md. Tarique in respect of the income received by them out of the said properties.
( 4 ) IN or about 1986, the Income-tax Department attached the personal property of Sk. Barkatulla in Madras and Lucknow. On June 3, 1988, Sk. Barku-tulla died. On February 14, 1989, Khalida Begum, his first wife, affirmed an affidavit declaring that on February 12, 1989, she made an oral gift of her portion to Md. Tariq. On November 18, 1993, an order of attachment under Section 226 (3) of the Income-tax Act was issued by the Income-tax Department. On January 6, 1994, the said order of attachment of the said properties were sent to Md. Tariq, respondent No. 6 herein, Khalida Begum and Masihu-nessa Begum, the first and third wife of Sk. Barkatulla (since deceased) and to one S. M. Eqbal, representative of the late Sk. Barkatulla.
( 5 ) ON March 16, 1994, petitioners Nos. 1 and 2 purchased the 2/3rds portion of the said property from Md. Tariq by two registered deeds. On June 8, 1994, an objection on behalf of respondent No. 6 was filed against the impugned order of attachment. On June 20, 1994, letter of objection to respondent No. 3 in respect of the said order of attachment and representation was made by the petitioners on February 5, 1996, by way of appeal before the Commissioner of Income-tax. Since no steps were taken, the writ petition was filed on February 19, 1996.
( 6 ) ON February 26, 1996, notice issued by respondent No. 4 and on February 29, 1996, the writ petition so filed by the representative in W. P. No. 414 of 1996 and interim order was passed by his Lordship Arun Kumar Dutta ). , restraining the respondents from taking any step for sale of the said premises. On May 14, 1997, an appeal was preferred from the judgment dated April 24, 1997, Further, the application was filed before the Tax Recovery Officer (hereinafter referred to as "the TRO") under Rule 11, Schedule II of the Income-tax Act filed by
