2011 (2) TMI 842 - HC - Income Tax

Recovery of tax arrears of the late H. N. Sharma from the petitioners from the legal heirs of the deceased.- Held that - when the case involves disputed questions of fact warranting appreciation of evidence, this court is expected not to enter into that territory. decided against Assessee. - if the alternative remedy is available to the petitioners, we do not propose to deal with the matter on the merits. We leave the petitioners to their remedy provided in the statute. Non-joinder of necessary party - It is not in dispute that the property is owned by M/s. Ekta Trust. The said trust is neither the petitioner nor arrayed as party respondent. The said title holder of the attached property is not before the court. The said trust has neither raised any objection to the attachment nor challenged the action of the Department. The petition is filed by Mr. Sagar and Mr. Vishal Sharma. Mr. Gagan Sharma, the third beneficiary is neither a petitioner nor arrayed as party respondent. - held that - even if it is assumed that the writ petition was maintainable at the instance of the beneficiaries, then each of them is beneficiary of the one-third undivided share in the attached properties. If only two persons having the two-third share are challenging the order and the third person having one-third share is not challenging the impugned order or he is not even before the court as party respondent, then the impugned order becomes final and conclusive so far as the 1/3rd interest of the third beneficiary (Mr. Gagan Sharma) is concerned. In this scenario, in our considered opinion, this petition cannot be entertained at the instance of only two joint beneficiaries, especially, in the absence of the third joint beneficiary.

Issues Involved:
1. Legality of the recovery certificate and subsequent attachment orders.
2. Liability of legal heirs under the Income-tax Act, 1961.
3. Jurisdiction of the Tax Recovery Officer (TRO) in determining benami transactions.
4. Non-joinder of necessary parties.
5. Availability and adequacy of alternative remedies.

Detailed Analysis:

1. Legality of the Recovery Certificate and Subsequent Attachment Orders:
The petition challenged the recovery certificate dated September 13, 2000, and subsequent attachment orders, contending they were illegal and contrary to the provisions of the Income-tax Act, 1961. The petitioners argued that the flats and shares in question were owned by M/s. Ekta Trust and purchased independently by the beneficiaries without any connection to the deceased H. N. Sharma. The Income-tax Department pursued the recovery of tax arrears from the legal heirs of the deceased, attaching properties allegedly belonging to M/s. Ekta Trust to recover the arrears.

2. Liability of Legal Heirs under the Income-tax Act, 1961:
The petitioners contended that the actions of respondents were in contravention of sub-sections (4) and (5) of section 159 of the Act, which state that a legal heir is liable to pay out of the estate to the extent the estate is capable of meeting that charge. They argued that the flats and shares were held by them in their individual capacity and were not connected to the deceased's estate. The petitioners relied on various orders passed by the Assessing Officer and correspondence with the Income-tax Department to establish their independent source of funds.

3. Jurisdiction of the Tax Recovery Officer (TRO) in Determining Benami Transactions:
The petitioners argued that the TRO had no jurisdiction to determine whether the properties were held benami by the petitioners. They cited judgments, including Sunderlal Daga v. TRO and Gangadhar Vishwanath Ranade v. TRO, to support their contention that the TRO's role was limited to determining possession and not adjudicating title. The petitioners asserted that if the Department believed the properties were held benami, it should have established its claim by filing a suit.

4. Non-joinder of Necessary Parties:
The Revenue raised the issue of non-joinder of necessary parties, noting that M/s. Ekta Trust, the title holder of the attached property, was not a party to the petition, nor was the third beneficiary, Mr. Gagan Sharma. The court emphasized that the trust property is jointly owned by all trustees, and any action regarding the trust property must involve all trustees. The court cited various judgments to support the principle that all trustees must act jointly and that the absence of a necessary party renders the petition non-maintainable.

5. Availability and Adequacy of Alternative Remedies:
The court noted that the petitioners had an alternative remedy available under rule 11(6) of the Second Schedule to the Act. The court referred to judgments, including Punjab National Bank v. O. C. Krishnan and State of H. P. v. Gujarat Ambuja Cement Ltd., which emphasized that when an alternative remedy is available, the High Court should refrain from exercising its jurisdiction under articles 226 and 227 of the Constitution. The court concluded that the petitioners should pursue the alternative remedy provided in the statute.

Conclusion:
The court dismissed the petition, emphasizing the non-joinder of necessary parties and the availability of an alternative remedy. The court directed the respondents not to proceed with recovery proceedings for six weeks, allowing the petitioners to approach the alternative remedy if advised. The court did not address the merits of the case, leaving all rival contentions open for consideration in a properly constituted suit.

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