9911796707
TMI Blog1987 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner was an income-tax assessee. As on May 21, 1978, it appears, he was due to the Department in a sum of Rs. 17,509. A non-residential building belonging to the petitioner situate at Subhedar Chatram Road, Bangalore, had been let out to one Hayavadana Rao on a monthly rent of Rs. 1,650 . A prohibitory order was issued by the Tax Recovery Officer on May 15, 1978 (vide annexure A), under rule 26(1)(iii) of the Second Schedule to the Income-tax Act, 1961. By that order, the said Hayavadana Rao was prohibited from paying monthly rent to the petitioner and he was also requested to remit the rent of Rs. 1,650 per month payable to the petitioner, to the Department instead, until further orders. On January 6, 1982, the Tax Recovery Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the tenant was only requested to remit the rent and there was no legal compulsion on the part of the tenant to remit the rent to the Department. He further submitted that it might be that the order was outside the purview of rule 26 of the Second Schedule to the Income-tax Act, 1961, and it was for the petitioner to have taken prompt action either seeking for vacating the said order or questioning the legality of the order itself in so far as it prohibited the tenant from paying future rent to the petitioner. Neither under the provisions of the Income-tax Act, 1961 (" the Act for short), nor the rules framed thereunder, has any power been conferred on the Tax Recovery Officer to prevent a tenant from paying the future rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) in the case of the other movable property (except as aforesaid)-the person in possession of the same from giving it over to the defaulter". As can be seen from the above rule, under clause (iii) of sub-rule (1) of rule 26, the notice was beyond the purview of the rule in so far it directed the tenant not to pay the future rent to the petitioner. Nothing prevented the petitioner from questioning the legality of the notices immediately after they were issued on the ground that, in exercise of the powers conferred under rule 26(1)(iii), the Tax Recovery Officer had no power to issue the said notices. The rule empowers the officer to prevent payment of amounts/rent in the hands of a third party which has become due for payment but does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted any amount from Hayavadana Rao, there could be no declaration that they must be deemed to have collected the amount unless any statutory provision was shown on the basis of which such a declaration could have been made. No such provision is brought to my notice. Therefore, in so far as the relief claimed in respect of annexure A is concerned, it must fail. Of course, this would be without any prejudice to the legal action that the petitioner may take against the tenant for non-payment of rent. As far as notices, annexures B and C, are concerned, the contention of the petitioner is that when the total amount due to the Department was only Rs. 95,059, two properties which are of very high value were attached. He submitted that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse open to the petitioner was to make an application before the Tax Recovery Officer praying for the raising of attachment in respect of one of the properties by satisfying the officer that attachment of one property would cover the tax due to the Department. In the circumstances, I find no substance in any of the contentions raised. Learned counsel for the petitioner also contended that the arrest notice which was the main cause for presenting these petitions was unwarranted. Learned counsel for the Department submitted that the Department was not interested in executing the impugned arrest notice. The statement so made is placed on record. In the result, I make the following order: The writ petitions are dismissed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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