2022 (10) TMI 530 - HC - Benami Property

Benami Prohibition transaction - order of attachment has come to be passed by the Officials of the Income Tax Department attaching the salary of the petitioner for appropriation as against the dues arising from order of assessment - HELD THAT - To be noted that the order u/s 24 (4) of the PBPT Act has been passed by R1, which is stated to be pending in appeal before the Tribunal. That order is irrelevant to the lis in the present writ petition since the garnishee notice has been issued by the assessing authority under the Income Tax Act to secure the demand arising from the income tax assessment order. This writ petition is hence not maintainable for want of proper parties being arrayed. However, bearing in mind the profile of the petitioner, the Deputy Commissioner of Income Tax, Central Circle, 3(4), Chennai is impleaded suo motu as R3, for whom Mr.ANR Jayaprathap, learned Junior Standing Counsel accepts notice. Let the cause title be amended to reflect this impleadment. No notice is thought necessary to either R1 and R2 and it would suffice that learned Standing Counsel for the Income Tax Department, who has taken notice for R3, be heard. Since the petitioner has availed the statutory remedy of appeal, it is appropriate that necessary orders in regard to interim protection are also obtained from the appellate authority. It would not be appropriate for this Court to intervene only for the purpose of grant of interim protection, as such interim protection, if any, would fall within the discretion of the appellate authority. We are not inclined to intervene in the matter and the impugned order of attachment is left undisturbed. However, liberty is granted to the petitioner to move the Assessing and/or the Appellate authorities under the IT Act, as he may be advised, seeking appropriate interim protection. Such stay application, if and when filed, shall be disposed by the Authority within a period of three weeks from date of receipt thereof, after hearing the petitioner. The petitioner would submit that his salary is the only source of income and that he does not have financial resources to meet any portion of the demand impugned before the Appellate authority. He would also cite family exigencies, including the upkeep of a special child and paucity of funds in this regard.

Issues:
1. Cash seizure during election surveillance
2. Detention of individual with cash
3. Proceedings under PBPT Act and IT Act
4. Order of assessment under IT Act
5. Order under PBPT Act
6. Impugned order of attachment by Income Tax Department
7. Proper party not arrayed as respondent
8. Maintainability of writ petition
9. Impleadment of Deputy Commissioner of Income Tax
10. Interim protection and statutory remedy of appeal
11. Financial constraints and family exigencies
12. Dismissal of writ petition with liberty for further action

Detailed Analysis:
1. The petitioner, a driver in the Tamil Nadu State Transport Corporation, was linked to a cash seizure incident during election surveillance in 2019.
2. Cash amounting to Rs.3,47,51,100/- was found in a TNSTC bus, and an individual holding the cash identified as a conductor was detained.
3. Proceedings were initiated under the Prohibition of Benami Properties Transactions Act, 1988, and the Income Tax Act, 1961.
4. An order of assessment under the IT Act was passed on 28.09.2021, with a pending appeal before the Commissioner of Income Tax (Appeals).
5. An order under Section 24(4) of the PBPT Act was passed on 16.02.2022, with the petitioner appealing before the Tribunal under the PBPT Act.
6. The Income Tax Department issued an order attaching the petitioner's salary for appropriation against the assessed income of Rs. 3.74 crores.
7. The impugned order was passed by the Deputy Commissioner of Income Tax, Central Circle No.3 (4), Chennai, while the petitioner erroneously named a different authority as the respondent.
8. The writ petition was deemed not maintainable due to improper parties being arrayed, but the Deputy Commissioner of Income Tax, Central Circle, 3(4), Chennai was impleaded as a respondent.
9. The court declined to intervene and left the impugned order of attachment undisturbed, granting liberty to the petitioner to seek interim protection from the assessing or appellate authorities under the IT Act.
10. The petitioner's financial constraints and family exigencies, including caring for a special child, were highlighted.
11. The writ petition was dismissed with liberty for the petitioner to seek appropriate relief through the statutory remedy of appeal and necessary orders for interim protection.

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