1970 (11) TMI 13 - HC - Income Tax

Writ petition challenging the attachment and sale proceedings - whether claim petition can be filed through a writ in respect of property attached for realising income-tax and penalty due from assessee s father

Summary

Issues:
1. Whether the disputed property is separate property of the defaulter or joint Hindu family property.
2. Whether the proceedings were conducted under the U. P. Zamindari Abolition and Land Reforms Act or the Income-tax Act, 1961.
3. Validity of the objection filed by the petitioner in the attachment and sale proceedings.
4. Applicability of rule 9 and rule 11 of the Second Schedule to the Income-tax Act, 1961.
5. Entitlement of the petitioner to relief under article 226 due to the omission to investigate the objection.

Detailed Analysis:
1. The primary issue in this case is whether the disputed property is the separate property of the defaulter or the joint Hindu family property. The petitioner, son of the defaulter, claimed that the property was joint family property, while the respondent contended it was the defaulter's separate property. The court noted that determining the nature of the property was a question of fact that could not be resolved summarily.

2. Another issue raised was regarding the proceedings under which the attachment and sale were conducted. The petitioner argued that the proceedings were under the U. P. Zamindari Abolition and Land Reforms Act, while the respondents claimed they were under the Income-tax Act, 1961. The court compared the procedures under both acts and found little difference, emphasizing that the objection process was followed in the present case.

3. The validity of the objection filed by the petitioner during the attachment and sale proceedings was also questioned. The court observed that although the petitioner raised an objection, no definite order was passed before the sale, indicating an irregularity in the procedure. Rule 11 of the Second Schedule to the Income-tax Act mandates investigating objections before proceeding with the sale.

4. The applicability of rule 9 and rule 11 of the Second Schedule to the Income-tax Act was discussed. Rule 9 bars jurisdiction of civil courts in disputes between the Income-tax Officer and the defaulter or their representatives. However, the court clarified that the petitioner, not being a defaulter or representative, could establish his title before a civil court as per rule 11(6).

5. The petitioner sought relief under article 226 due to the omission to investigate the objection, citing a previous case. The court considered the peculiar circumstances, noting the son's obligation to pay off the father's debts under Hindu law. Ultimately, the court declined to interfere, stating that the petitioner could establish his claim in a civil court, and since there was an alternative remedy available, relief under article 226 was not granted.

In conclusion, the court dismissed the petition, stating that the parties would bear their own costs, and the stay order was vacated.