Income-tax---

----Recovery of tax---Attachment of property---Person objecting to attachment must be given opportunity to be heard---Indian Income Tax Act, 1961, Sched. II, R.11.

Rule 11 of the Second Schedule to the Income Tax Act, 1961, is intended to give an opportunity to a person objecting to an attachment or sale of any property in execution of a certificate, on the ground that such property is not liable to attachment or sale, to put forward his objections. The rule contemplates investigation of such objections by the Tax Recovery Officer, whereat the claimant or objector has a right to adduce evidence to show that, on the date of service of the notice issued under the Second Schedule to the Act to pay arrears, the claimant or objector had some interest in, or was possessed of, the property in question.

Jagjivan Dhondiram Kirad v. Gopal Vinayark Joshi AIR 1955 Born. 397 applied.

Gangadhar Vishwanath Ranade (No.2) v. TRO (1989) 177 ITR 176 (Bom.) ref.

Soli Dastur with NA. Dalvi instructed by Messrs Kanga & Co. for Petitioner.

Dr. V. Balasubramaniam with Mrs. Manjula Singh for Respondents Nos. 1 and 2.

Y.T. John with Miss M. John for Respondent No.3.

JUDGMENT

B.N. SRIKRISHNA, J.---This writ petition under Article 226 of the Constitution of India impugns the orders of attachment, dated January, 28, 1977 January 22, 1981, and January 31, 1981, levied on a property, being flat No.71 in a building known as "Zenia Abad" situated at Bombay. The petition also * impugns a letter, dated March 30, 1987, written by the Tax Recovery Officer, Bombay by which the objections raised by the petitioner to the validity of the attachment on the said flat were held to be without substance.

The short facts, relevant for disposal of this writ petition, need be stated.

The Income-tax authorities levied an attachment on flat No.71, in Zenia Abad Building, owned by a cooperative society formed of the individual flat owners therein. Although the said flat was standing in the name of one Ravichandran at the material time, the income-tax authorities levied attachment on this flat on the footing that the flat really belonged to one Loganathan, who was a defaulter to income-tax, and that Ravi-Chandran in whose name the flat stood in the records of the cooperative society was merely a benamidar.

Ravichandran had committed defaults in payment of the dues of the society and also had parted with possession of the flat by inducting a non member of the society into the said flat. This resulted in a notice of termination of tenancy, dated February 28, 1976, being given to him. Pursuant to the said notice,. a dispute was raised under the provisions of the Maharashtra Cooperative Societies Act for recovery of possession of the said flat. By an order, dated October 8, 1980, the Cooperative Court at Bombay directed the said Ravichandran to hand over possession of flat No.71 to the Zenia Abad Cooperative Housing Society Ltd., despite the attention of the said Court being drawn to the fact of an attachment order by the representative of the Income Tax Department who appeared before it on August 18, 1986.

After recovering possession of the flat from Ravichandran, the co -operative society gave the said flat to the petitioner on leave and licence by an agreement, dated January 18, 1981, the recital in which specifically mentions 'he existence of the dispute between Ravichandran and the Income Tax Department as well as the attachment order made by the Income Tax Department. The society was informed by notice, dated October 14, 1980, that the flat had been subject to attachment made by the Tax Recovery Officer, Bombay, and that the right, title and interest in the said flat has been attached, vide a copy of the attachment order which was enclosed. Subsequently, by an agreement, dated June 29, 1982, the petitioner was allotted the said flat No.71 in the said building upon payment of a consideration of Rs.2,25,000.

On or about February 17, 1987, another notice of attachment was pasted on the premises of the said society. The petitioner addressed a letter, dated March 6, 1987, through his solicitors, objecting to the attachment of the flat and raised a number of grounds in support of his contention that the attachment was invalid and that he had full and clear title to the property in question. In the ultimate paragraph of the said letter, the petitioner called upon the Tax Recovery Officer to give him a personal hearing before proceeding further in the matter.

It is not disputed by the first respondent's counsel that no personal hearing was given to the petitioner in the matter. However, it is pointed out that by the Tax Recovery Officer's reply, dated March 30, 1987, the petitioner's objections were turned down. It is at this stage that the petitioner moved this Court by a writ petition impugning the attachment order and the rejection of the objections, vide the letter, dated March 30, 1987.

We have heard learned counsel for all the parties for a considerable time. Though several contentions were raised by the petitioner in support of his case, it appears to us that his contention that he was not given a personal hearing is justified and needs to be upheld. Though Dr. Balasubramaniam, learned counsel for the Department, contended that under rule 11 of the Second Schedule to the Income Tax Act, 1961, the petitioner has no right of personal hearing, we are not impressed by this contention. Rule 11 is intended to give an opportunity to a person objecting to an attachment or sale of any property in execution of a certificate, on the ground that such property is not liable to attachment or sale, to put forward his objections. The rule contemplates investigation of such objections by the Tax Recovery Officer, whereat the claimant or objector has a right to adduce evidence to show that at the date of service of the notice issued under the Second Schedule to pay arrears, the claimant or objector had some interest in, or was possessed of the property in question.

It was contended for the Department that the petitioner had no such right as on the date of the attachment order, as the petitioner, for the first time, obtained interest in the property in question only in the year 1981, while the notice under rule 2 of the Second Schedule was issued in December 1976. The provisions of rule 11 are substantially the same as the powers of an executing Court under Order 21, rule 58, of the Code of Civil Procedure (see, in this connection, Gangadhar Vishwanath Ranade (No.2) v. TRO (1989) 177 ITR 176 (Bom.)). This Court has, in Jagjivan Dhondiram Kirad v. Gopal Vinayak Joshi, AIR 1955 Bom. 397, taken the view that the right of objecting to an attachment is available not only to the person who had interest in the property at the date of attachment, but also to a subsequent purchaser who is entitled to show that his predecessor-in-title had a right of objection. We are, therefore, of the view that the petitioner did have a right to raise objection under rule 11. Considering the serious consequences which flow from an order of attachment and an order passed under rule 11 of the Second Schedule to the income Tax Act, 1961, we are of the view that the petitioner ought to have been given a personal hearing and an opportunity to adduce such evidence as he desired in support of his-objections. After thus giving him an-opportunity, the Tax Recovery Officer ought to have made a speaking order dealing with the various objections raised by the petitioner. Unfortunately, however, by taking a narrow view, the Tax Recovery Officer rejected the objections by his impugned letter, dated March 30, 1987, without affording a personal hearing to the petitioner. On this ground alone, we are of the view that the petitioner is entitled to succeed. In view of the fact that the petition succeeds on this narrow ground alone, we are not considering or deciding the other contentions, which were vehemently argued by Mr. Dastur, learned counsel for the petitioner.

In the result, the petition is allowed partly to the extent that the order/letter, dated March 30, 1987 (Exhibit 'O' to the petition), is quashed and set aside. The Tax Recovery Officer is directed to afford an opportunity of personal hearing to the petitioner. The petitioner shall be entitled to put forth all his objections before the Tax Recovery Officer and be given an opportunity to adduce such evidence as is contemplated under rule 11. The Tax Recovery Officer shall consider the objections and the evidence placed before him and make an appropriate speaking order dealing with all contentions raised before him.

Rule made partly absolute, accordingly. However, in the circumstances of the case, there shall be no order as to costs.

M.BA./201/T.F. Rule made absolute.