2007 (8) TMI 270 - HC - Income Tax

Sale of the shop declared as null and void by Respondent no. 3 - Held that - The action of respondent No. 3 in declaring that the transfer of property in favour of the petitioners be void is clearly without jurisdiction. The impugned order also attracted civil consequences. Respondent No. 3 before passing any such order ought to have given opportunity to petitioners if in law respondent No. 3 could exercise jurisdiction under section 281. That opportunity was also not given. The order, therefore, must also be set aside for violation of the principles of natural justice and fair play.Petition will have to be allowed. We make it clear that the respondents are entitled to proceed against the suit property, by following the due procedure.

Summary

Issues:
Impugning an order under section 281 of the Income-tax Act, 1961 declaring a property transaction void without due process.

Analysis:
The petitioners challenged an order made by respondent No. 3 under section 281 of the Income-tax Act, 1961, declaring a property transaction null and void. The case involved the transfer of a shop in Virwani Plaza, Pune, initially allotted to a defaulter who later sold it to the petitioners. The Tax Recovery Officer attached the shop in 2001, which was later set aside by the Commissioner of Income-tax in 2003. Subsequently, respondent No. 3 declared the sale of the shop in 1998 as void, leading to the present challenge.

The petitioners argued that respondent No. 3 exceeded jurisdiction by declaring the transaction void without following due process or providing an opportunity to be heard. They relied on the Supreme Court judgment in TRO v. Gangadhar Viswanath Ranade (Decd.) [1998] 234 ITR 188, emphasizing that such orders must be made after due consideration and opportunity for response.

In response, the respondents contended that the provisions of section 281 of the Income-tax Act were clear, and the order declaring the transaction void was within the scope of the law. However, the Supreme Court precedent highlighted that section 281 did not provide an adjudicatory mechanism for determining the validity of transfers. It was established that for a transfer to be declared void under section 281, appropriate legal proceedings akin to those under the Transfer of Property Act were necessary.

The High Court, following the Supreme Court's interpretation, ruled that respondent No. 3's order declaring the property transfer void lacked jurisdiction. The court emphasized that such actions with civil consequences required due process and an opportunity for affected parties to present their case. As respondent No. 3 failed to provide this opportunity, the order was set aside for violating principles of natural justice and fairness.

Consequently, the petition was allowed, affirming the respondents' right to proceed against the property through proper legal procedures. The court made it clear that the impugned order was invalid and did not impose any costs on the parties involved.