IMPORTANT POINT
The transfer of property made in violation of the provisions of the Income Tax Act, 1961, and the Second Schedule to the said Act is void.

JUDGMENT :

The above writ petition has been filed seeking a direction to the 2nd respondent to effect mutation in favour of the petitioners and to accept land tax for the properties covered by Ext.P1 settlement deed.

2. The brief facts necessary for the disposal of the writ petition are as follows: Petitioners are the owners in possession of 1.80.09 hectares of land comprised in Sy.No.298/1A1A1A (Old Sy.Nos. 4712, 4711 and 4713) of Ambalavayal Village, Sultan Bathery Taluk, Wayanad District obtained as per Ext.P1 settlement deed executed by their father. When the petitioners sought to effect mutation and to pay land tax for the property, they were informed by the 2nd respondent that the 3rd respondent, the Income Tax Department had attached a portion of the said property for alleged dues of the predecessor in interest, their father.

3. Thereupon, the 1st petitioner sought information under the Right to Information Act, regarding the alleged attachment and the 2nd respondent served him with Ext.P3 proceedings dated 18.11.2019 of the 3rd respondent along with Ext.P2 letter of the 2nd respondent. In Ext.P2 letter, the 1st petitioner was informed that an attachment is in effect in respect of the subject property as per proceedings dated 18.11.2019. Ext.P3 is an intimation issued to the 2nd respondent Village Officer intimating that as part of the recovery proceedings to realize the income tax due they propose to permanently attach some of the immovable properties of the defaulter, who is the father of the petitioners and requested the 2nd respondent to make arrangement to identify the location of the properties mentioned in the said communication. Petitioners submitted that they cannot put the property to any effective use since mutation has not been effected and the petitioners are unable to remit tax for the said property. Petitioners would further contend that it is settled law that mutation and collection of land tax being only for fiscal purposes does not in any manner affect the title of the property and therefore any attachment on the property cannot be a bar to effect mutation and to collect land tax for the property. Petitioners rely on the judgment in Laila v. Village Officer, Thrikkovilvattom Village Office and Others [2019 (4) KHC 799] in support of their contention. It is aggrieved by the refusal on the part of the 2nd respondent to effect mutation and to accept land tax for the properties covered by Ext.P1 settlement deed that the petitioners have approached this court.

4. The learned Government Pleader upon instructions submitted that the mutation has not been effected for the reason that there is an order of attachment issued by the Income Tax Department. The learned Government pleader also handed over a copy of the letter issued to the defaulter by the 3rd respondent bearing number ITBA/COM/F/17/2019-20/1020625700(1) dated 18.11.2019 which is a communication issued in Form No. I.T.C.P.16 under Rule 48 of Second Schedule to Income Tax Act, 1961 whereby an order has been issued attaching the immovable properties and intimating the defaulter that he is prohibited and restrained until further orders from transferring or charging the subject property in any way and that all persons are hereby prohibited from taking any benefit under such transfer or charge.

5. The additional 3rd respondent has filed a detailed statement contending that the petitioners’ father was assessed and the arrear demand outstanding is Rs.1,63,87,412/-. Thereupon, the Department issued a provisional attachment order under Section 281B to attach the immovable properties of the petitioners’ father to protect the interest of the revenue. The latest provisional attachment order under Section 281B was made on 22.01.2019 and no subsequent orders have been passed to withdraw the said attachment. Following the assessment and finalization of the payable demand the case was referred to the Tax Recovery Officer and Tax Recovery Certificates were issued on 12.03.