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TMI Blog2017 (12) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... would be maintainable before this court. In the light of the above discussion, the impugned order dated 3.3.2016 passed by the third respondent Tax Recovery Officer cannot be sustained. The petition, therefore, succeeds and is, accordingly, allowed. - Special Civil Application No. 9426 of 2017 - - - Dated:- 12-12-2017 - MS. HARSHA DEVANI AND MR. A.S. SUPEHIA, JJ. For The Petitioner : Mr Navin Pahwa, Sr. ADVOCATE for /s Thakkar And Pahwa Advocates, Advocate For The Respondent : Mr Niral R Mehta, Advocate And Mrs Mauna M Bhatt, Advocate ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. This petition under Article 226 of the Constitution of India is directed against the order dated 3rd March, 2016 passed by the Tax Recovery Officer-3, Ahmedabad on the application dated 29.6.2015 made by the petitioner for lifting of attachment over an approximately 300 square yards plot in Kundannagar Cooperative Housing Society Limited, Behind Ocean Park, Near Nehrunagar Circle, Satellite Road, Ahmedabad, whereby the application has been held to have been redressed and filed. 2. The facts giving rise to the present petition are that the respondent No4 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attaching 18 built up flats and 3000 square yards of open land of the respondent society. Upon learning about the order dated 18.9.2012 made by the third respondent, the petitioner filed an application dated 15.12.2014 before the Chief Commissioner of Income Tax, Ahmedabad challenging the said order. It appears that the second respondent forwarded the application to the third respondent treating it to be a grievance petition. By the impugned order dated 3.3.2016, the third respondent Tax Recovery Officer has ordered the application to be filed. 5. Mr. M.R. Bhatt, Senior Advocate, learned counsel for the respondents No.2 and 3 raised a preliminary objection to the very maintainability of the petition on the ground that the powers exercised by the Tax Recovery Officer are relatable to rule 11 of the Second Schedule to the Income Tax Act, and that under sub-rule (6) thereof, where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive. It was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection : Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed. ( 2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection, upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit. ( 3) The claimant or objector must adduce evidence to show that- ( a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears, or ( b) (in the case of movable property) at the date of the attachment, he had some interest in, or was possessed of, the property in question. ( 4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, (2) being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or (3) partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale. 11. Sub-rule (5) of rule 11 of the Second Schedule to the Act requires the Tax Recovery Officer to record a satisfaction that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, before disallowing the claim. Sub-rule (6) of rule 11 provides for institution of suit against an order passed by the Tax Recovery Officer on a claim or an objection. 12. Examining the impugned order in the light of the above statutory provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court the Tax Recovery Officer, has proceeded to decide the application on a misunderstanding of the relevant provisions by observing that the matter involved complicated issues as to whether attachment of immovable property can be kept or not. On a plain reading of rule 11 of the Second Schedule, it is evident that the scope of inquiry by the Tax Recovery Officer is limited. Under sub-rule (3) of rule 11, in case of immovable property, the claimant is required to show that at the date of the service of the notice under the Schedule to pay the arrears, he had some interest in, or was possessed of the property in question. If the claimant succeeds in adducing the evidence to this effect, under sub-rule (4), the Tax Recovery Officer would be required to record satisfaction in terms thereof and order release of the property from attachment to the extent he thinks fit. For the purpose of disallowing the claim, in view of the provisions of sub-rule (5) of rule 11 of the Second Schedule to the Act, the Tax Recovery Officer is required to be satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any person, or was i ..... 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