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TMI Blog1956 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... he realisation of the alleged income-tax arrears of her husband, tharanisingh Gramani, and in particular from proceeding with the sale of the Benhutty Estate, Kulikal Village, Coonoor Taluk, Nilgiris District. For the recovery of arrears of income-tax due from the petitioner's husband, tharanisingh Gramani, a certificate was issued by the Income-tax Officer, the first respondent, to the Collector of Nilgiris (the second respondent) under section 46(2) of the Indian Income-tax Act. The Collector, in pursuance of this certificate, proceeded under section 27 of the Madras Revenue Recovery Act to attach the property described as Benhutty Estate for the realization of the said arrears. This estate, it is common ground, was purchased in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further alleged that in respect of the income which she owned she had submitted returns to the Income-tax authorities for the assessment years 1947-48 to 1950-51 and had paid the tax which had been assessed on the said income. Her contention was that there was no statutory provision enabling the Revenue Authorities to proceed against the property of persons who were not defaulters. Section 46(2) of the Indian Income-tax Act, 1922, runs thus: The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ways; by the seizure and sale of movable property; by attachment and sale of immovable property and by execution against the person of the defaulter: (vide section 5). Section 25 prescribes the service of a written demand upon the defaulter, and under section 26, when the amount due has not been paid, the Collector can proceed to recover the arrear by the attachment and sale of the defaulter's land. The mode of attachment is laid down in section 27. There are other provisions relating to the procedure to be followed on the sale of the attached property. Section 59 saves the right of parties aggrieved by any proceedings taken under the Act to apply to the civil Courts for redress though a short period of limitation of six months from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de also Manakari Venkappa Chari v. Holagundi Pampana Gowd AIR 1931 Mad. 51 We agree with Mr. Nambiar that there is no provision in the Madras Revenue Recovery Act which enables the Collector to attach and sell land not registered in the defaulter's name for arrears of revenue due from the defaulter. In Padhmanabha v. Visalakshmi AIR 1938 Mad. 283, it was pointed out, though in another connection, that it would not be competent to the Collector to go into the question of benami. We agree, however, with Mr. Rama Rao Sahib, who appeared for the respondents, that in exercise of the additional powers conferred on the Collector under the proviso to section 46(2) of the Indian Income-tax Act, i.e., the powers of a civil Court for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof, to the Income-tax Officer. Mr. Rama Rao Sahib, contended firstly that the petitioner would have a right to prefer a claim, even though the Collector purported to proceed under the provisions of the Revenue Recovery Act only, and cited in this connection Hiralaxmi Pandit v. Income-tax Officer [1955] 27 ITR 643 . In that case, on a certificate sent by the Income-tax Officer under section 46(2) of the Income-tax Act, the Collector proceeded to put up for sale certain property as the property of the assessee; but the widow of the assessee claimed that the property was her own. Her claim was rejected and she thereupon filed a suit to vindicate her right. It was held that the suit was maintainable without the Union of India being made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under article 226 of the Constitution to obtain appropriate orders for preventing the Collector from proceeding to attach and sell property registered in his name. The existence of a remedy by way of a suit is not always a bar to the entertainment of a petition under article 226 of the Constitution. (Vide New India Tannery v. M.P. Nigam [1956] 29 ITR 54). As we have held above that the Collector, acting merely under the Madras Revenue Recovery Act, has no power to attach and sell property registered in the name of any one other than the defaulter, we would have issued a writ of mandamus to forbid him from continuing the proceedings against the property of the petitioner. But in view of the fact that the Collector has also additional pow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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