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TMI Blog2001 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996, and to forebear from giving any effect or further effect thereto in any manner whatsoever and further to recall and rescind the impugned order dated July 21, 1997, passed by respondent No. 4 and to forebear from giving any further effect thereto and further to refund the amount so collected by them or by their servants or agents from the tenant of the said premises in question and further injunction restraining them from collecting further rent from respondent No. 5. The facts of the case briefly are as follows: One Sk. Barkatulla (since deceased) purchased the said premises on March 30, 1963. On January 13, 1966, the said Barkatulla transferred a portion of the said premises in favour of his first wife, Khalida Begum, by a regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Barkatulla (since deceased) and to one S.M. Eqbal, representative of the late Sk. Barkatulla. On March 16, 1994, petitioners Nos. 1 and 2 purchased the 2/3rds portion of the said property from Md. Tariq by two registered deeds. On June 8, 1994, an objection on behalf of respondent No. 6 was filed against the impugned order of attachment. On June 20, 1994, letter of objection to respondent No. 3 in respect of the said order of attachment and representation was made by the petitioners on February 5, 1996, by way of appeal before the Commissioner of Income-tax. Since no steps were taken, the writ petition was filed on February 19, 1996. On February 26, 1996, notice issued by respondent No. 4 and on February 29, 1996, the writ petition so f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judgments: Union of India v. Mrs. Sarojini Rajah [1974] 97 ITR 37 (Mad) IAC of Agrl. Income-tax and Sales Tax v. V. K. Ramunni Panikkar, Receiver of Zamorin's Estate [1972] 84 ITR 370 (SC); ITO (Addl.) v. E. Alfred [1962] 44 ITR 442 (SC); ITO (First) v. M. R. Dhanalakshmi Ammal [1978] 112 ITR 413 (Mad); and Satya Pal Verma v. ITO [1977] 106 ITR 540 (All). He further contended that the property was not a part of the assets of the estate of the deceased by reason of his divesting in 1966 and Md. Tariq becoming the owner of the property in his own right prior to the impugned attachments made in 1994, the property was not the immovable property of the deceased assessee nor was Md. Tariq holding the property as legal representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i v. CIT [2001] 248 ITR 799 (SC). Mr. Som, appearing on behalf of the respondent, drew my attention to rule 16(2) of Schedule II and contended that where an attachment has been made under this Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. He also drew my attention to rule 48 of Schedule II and contended that all steps have been taken by the authorities by issuing the notice under the said rule. He also drew my attention to section 167 of the Income-tax Act and contended that the Assessing Officer shall have the same remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. After considering the facts and circumstances of this case I do not have any hesitation to hold that the title in the property in question cannot be decided by me in this writ jurisdiction. In my opinion, rule 11, Schedule II, empowers the Tax Recovery Officer to decide the objection in respect of the attachment or sale of the property in execution of a certificate and the Tax Recovery Officer shall proceed to investigate the claim or objection. It further has been specifically stated under the said rule that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed. In the instant case, as it appears that the petitioner earlier came before this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of the said notice. The said fact is also disputed question of fact in my opinion, cannot be decided in this writ application. Therefore, in my opinion, it would be proper for me not to pass any order in this application excepting granting time to the petitioner to file a suit before the proper forum and to proceed accordingly. The petitioner shall take steps to file such suit within four weeks from the date of this order and the respondent authorities shall not take any steps in respect of the said attachment order for four weeks if the petitioner takes steps and files suit and can take steps in accordance with law or can produce any order from the competent court of law before the authorities. In that case the authorities shall pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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