Income-tax---

----Recovery of tax ---Deposit of title deeds as security for payment of taxes-- No evidence that title deeds had been deposited as security for payment of dues of assessee's husband or any partner of firm in which her husband and children were partners---Payment of dues by assessee---Title deeds to be returned to her---Constitution of, India, Art.226.

In respect of the assessment year 1966-67, the petitioner was assessed to income-tax. An appeal was filed against the assessment order and the assessment was set aside. Consequently, fresh assessment was made and according to the petitioner, the demand was substantially reduced According to the petitioner, before assessment was set aside in appeal, the Income Tax Officer called upon the petitioner to furnish adequate security in respect of the demand. The petitioner deposited title deeds relating to certain properties. Subsequently she paid the tax as per the revised order and demanded return of the title deeds. The Income Tax Officer replied that as a huge amount was pending realisation as arrears by her husband it would not be possible for the respondents, to return the title deeds until the matter was settled. On a writ petition praying for a return of the title deeds:

Held, that there was nothing to show that the documents had been deposited by the petitioner by way of security for arrears of her husband or any partner of the firms in which her husband and children were partners. There was also no contention that there were any arrears due from the petitioner. Therefore, the title deeds had to be returned to the petitioner.

Vijayaraghavan (ICS.) v. CIT (1993) 202 TTR 24 (Ker.) ref.

V. Ramcahandran for the Assessee.

N.R.K. Nair for the Commissioner.

JUDGMENT

The petitioner is an assessee on the file of the third respondent. In respect of the assessment year 1966-67, the petitioner was assessed to income -tax. An appeal was filed against the assessment order and the assessment was set aside. Consequently, fresh assessment was made and according to the petitioner, the demand was substantially reduced. It is also the petitioner's case that as per the original assessment order which was made on March 27, 1971, the petitioner was assessed to pay income-tax of Rs.78,387 for the assessment year 1966-67. According to the petitioner, before the assessment was set aside in appeal, the Income Tax Officer, Central Circle, Ernakulam, called upon the petitioner to furnish adequate security in respect of the demand made as per the assessment order, dated March 27, 1971. Exh. P-1 is the original assessment order, dated March 27, 1971, and Exh. P-2 is the revised order, dated March 15,1973, passed after the appellate authority set aside the original assessment order and remanded the matter. It is also the petitioner's case that in view of the demand made by the Income Tax officer to furnish security for the amount of tax assessed, the petitioner deposited title deeds relating to seven items of properties before the Income Tax Officer. According to the petitioner, so many items were offered as security since the assessing authority did not accept the valuation of the properties as claimed by the petitioner and insisted that all these title deeds should be deposited. Exh. P-3 is the letter, dated October 30, 1971, given by the petitioner alongwith the deposit of title deeds. The petitioner alleged that she paid the tax as per the revised order. As she required the title deeds, she approached the Income Tax Officer with a request that the title deeds may be returned to her. Finding that they were not returned, the petitioner filed Exh. P.7 written application requesting for return of the documents. The petitioner, received a reply, Exh. P-8, from the Income Tax Officer stating that as huge amount of tax arrears are pending realisation from the petitioner's husband, it may not be possible for the respondents to return the' title deeds until the matter is settled. In this original petition, the petitioner prays for issue of a writ of mandamus, directing the respondents to return and hand over to the petitioner the title deeds relating to the properties situate in Thycaud and Chengazhassery -villages forthwith.

The petitioner has alleged that the petitioner is not a partner of any of the firms in which the petitioner's husband and children are partners. She also pointed out that the Income-tax Department has treated all the properties, the documents of title of which were deposited with the Department, as the properties of the petitioner and she was assessed to wealth-tax on that basis. It is averred that in the assessment orders passed against the petitioner the income from these properties was treated as income of the petitioner and assessments were completed on that basis. My attention was also invited to Exh. P-5 order of attachment, where it is stated that her husband failed to pay a sum of Rs.14,32,494 and it is ordered that she was prohibited and restrained until further order from transferring or charging the property by virtue of the Explanation to subsection (1) of section 222 of the Income Tax Act, 1961, in any way and that all persons were prohibited from claiming any benefit under such transfer or charge. It was pointed out that the properties were sought to be attached by proceedings Exh. P-5 only on .the basis of the Explanation to section 222, and not on the basis that she has created a security in respect of these properties by depositing the title deeds.

Learned counsel for the petitioner invited my attention to a decision rendered-by a Division Bench of this Court in WA. No.221 of 1990 (ICS. Vijayaragharan v. CIT (1993) 202 ITR 24. Almost in a similar situation, the Division Bench held that there was no indication to show that it was towards the liability of any person other than the petitioner in that case that the deposit of title deeds was made. In that view of the matter, the Division Bench directed the return of the documents of title deposited. Learned counsel pointed out that the tax liability of the petitioner in that case was only Rs.1,915 being advance tax, whereas the value of the property offered as security was shown as Rs.40,000. It was held that the above facts are insufficient to come to a conclusion that it is by way of security towards the tax arrears of the father of the petitioner in that case that the title deeds were deposited. It may be noticed that the letter, which was filed alongwith the deposit of title deeds in that case was exactly similar to Exh. P-3 letter produced in this case and the petitioner therein was none other than the son of the petitioner herein.

In my view there is substance in the contention raised by learned counsel for petitioner. There is nothing to show that the documents were deposited by the petitioner by way of security for arrears of her husband or any partners of the firms in which her husband and children were partners.

There is no contention that there are any arrears due from the petitioner. In the circumstances, there will be a direction to return to the petitioner the documents shown in Exh. P-3 deposited with the Department.

Original petition is disposed of as above.

M.BA./10/T.FOrder accordingly.