2020 (3) TMI 797 - HC - Income Tax

Recovery proceedings against trust - family trust - setting aside the attachment and the garnishee notices on the primary ground that the said properties belong to the trust and do not belong to the original petitioner No.1. (trustees) - HELD THAT - Subject properties do not belong to the original petitioner No.1 Harish R. Laliwala in his individual capacity. If that be the position then the impugned attachment orders in respect of the subject properties issued by respondent No.1 for realisation of the liability of the original petitioner No.1 either in his individual capacity or as Managing Director of M/s. Verma Extrusions Pvt. Ltd. (asseesee company) would be untenable in law and fact. Mr. Suresh Kumar appearing on behalf of the Revenue also fairly submits that pursuant to issuance of the Letters of Administration by this Court to the trustees of the trust, the above position is settled in law that the subject properties stand in the name of the trust and do not belong to the original petitioner No.1 against whom the Revenue has initiated recovery proceedings. He however submitted that the recovery proceedings being civil in nature would however continue against the original petitioner No.1 and his estate in the hands of his legal-heirs and representatives. But in so far subject properties are concerned, he has fairly accepted the position that continuance of the attachment orders would now not be sustainable in law in view of the Letters of Administration issued to the trust. It is evident that the subject properties belong to the trust which was settled by Smt. Sushila R. Laliwala s Will before initiation of recovery proceedings by the Revenue against the original petitioner No.1. The said properties did not belong to the original petitioner No. 1 or his legal heirs / representatives. The trust being formed in the year 1978 and the Will of Smt. Sushila R. Laliwala made in 1985 much before initiation of recovery proceedings, there is no question of the said properties being diverted to the trust to evade payment of due tax. We set aside and quash the attachment orders dated 27th August 1997 being exhibits O1 , O-2 and O-3 in respect of the subject properties. The demand notice dated 20th January 1994 being exhibit L and six garnishee notices issued under Section 226 (3) of the Act being exhibits R-1 to R-6 to the Petition would also stand interfered with. Revenue is free to pursue proceedings against the estate of original petitioner No.1 in the hands of his legal-heirs and representatives in accordance with law in so far as the order dated 15th December 1993 under Section 179 (1) of the Act is concerned.

Summary

Issues Involved:
1. Validity of the order dated 15th December 1993 issued under Section 179(1) of the Income Tax Act, 1961.
2. Validity of the demand notice dated 20th January 1994.
3. Validity of the three orders of attachment dated 27th August 1997 and seven garnishee notices issued under Section 226(3) of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Validity of the Order Dated 15th December 1993 Issued Under Section 179(1) of the Income Tax Act, 1961:
The petitioners challenged the order dated 15th December 1993 issued under Section 179(1) of the Income Tax Act, 1961, holding the original petitioner No.1, Harish R. Laliwala, jointly and severally liable for the payment of arrears of tax amounting to ?1,78,00,750/- in the case of M/s. Verma Extrusions Pvt. Ltd., where he was the Managing Director. However, during the proceedings, the petitioners decided not to press the challenge to this order. The court noted this concession and did not set aside the order under Section 179(1) of the Act.

2. Validity of the Demand Notice Dated 20th January 1994:
The demand notice dated 20th January 1994 was issued in continuation of the liability determined under the order dated 15th December 1993. Since the petitioners did not press their challenge against the order under Section 179(1), the demand notice was also not specifically contested on its own merits. The court's decision on this matter was inherently tied to the outcome of the attachment orders and garnishee notices.

3. Validity of the Three Orders of Attachment Dated 27th August 1997 and Seven Garnishee Notices Issued Under Section 226(3) of the Income Tax Act, 1961:
The primary contention revolved around whether the properties attached by the Revenue belonged to the trust or to the original petitioner No.1 in his individual capacity. The properties in question were:
- Building 'Sushilaben', Road No.4, Khar (West)
- Flat at 'Girichhaya', 5th Floor, Band Stand, Chowpati, Mumbai 400 006
- Shop at Kothari Mansion, Ground Floor, Opp. Girgaon Court, Parekh Street, Mumbai 400 004

The petitioners argued that these properties were bequeathed to the Ramniklal C. Laliwala Family Benefit Trust by Smt. Sushila R. Laliwala through her Will dated 5th March 1985, and not owned by Harish R. Laliwala in his individual capacity. The court observed that the Will had been probated and Letters of Administration were issued to the trust, confirming that the properties belonged to the trust and not to the original petitioner No.1.

The Revenue conceded that with the issuance of the Letters of Administration, the properties were indeed under the trust's ownership, and thus the attachment orders and garnishee notices could not be sustained in law. The court concluded that the properties did not belong to the original petitioner No.1 individually, making the attachment orders and garnishee notices invalid.

Conclusion:
The court set aside and quashed the attachment orders dated 27th August 1997 and the garnishee notices issued under Section 226(3) of the Income Tax Act, 1961. The demand notice dated 20th January 1994 was also interfered with. However, the Revenue was allowed to continue recovery proceedings against the estate of the original petitioner No.1 in the hands of his legal heirs and representatives as per the order dated 15th December 1993 under Section 179(1) of the Act. The writ petition was allowed in these terms with no order as to costs.