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TMI Blog2008 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. JUDGMENT The judgment of the court was delivered by S.J. Mukhopadhaya J. - The Writ Appeal has been preferred by the writ petitioner against the order dated 17.6.2006 passed in Writ Petition No.5251 of 2006, whereby and whereunder, the learned single Judge refused to decide the case on merits on the ground of the availing of the alternative remedy under Section 264 of the Income Tax Act, 1961 (for short, 'the I.T. Act'). 2. The main plea taken in the present Writ Appeal is that the availing of the 'Revision' under Section 264 of the Income Tax Act is not applicable in a case of attachment of property(ies) of a third party. 3. According to the appellant-writ petitioner, the second respondent-Tax Recovery Officer, Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the attachment proceedings having been started prior to the pronouncement of "Talaq" in 2002, in respect of the assessment year 1995-1996 to 2000-2001, it was open for the authorities to attach the property(ies) in question. 6. The Writ Appeal was earlier heard on merits and on 20.6.2008, the appellant-writ petitioner was allowed time to bring on record any document to show that the name of the appellant-writ petitioner is recorded in the Revenue Records in regard to the property(ies) attached by the respondents or any registered deed of Gift, if any effected. It was also made clear in that order dated 20.6.2008 that if the attached property(ies) are not recorded in the Revenue Records in the name of the appellant-writ petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the above assessment years against her ex-husband-late-Essa Ismail Sait alias Babu Sait. 11. Since no recovery was forthcoming from the defaulter(s), the property(ies) at Ootacamund was attached on 10.2.2005, giving rise to the objection petition filed by the appellant-writ petitioner, stating that the property(ies) were gifted to her by her ex-husband and she has been separated by the pronouncement of 'Talaq' and in no way responsible for the personal liability of her ex-husband and the said objection petition was rejected on 15.4.2005 by the Tax Recovery Officer. 12. Even according to the stand taken by the appellant-writ petitioner, she was married to Mr. Essa Ismail Sait on 28.12.1995 and lived with him up to middle of 1998 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities noticed that though the appellant-writ petitioner's properties stand in the name of her ex-husband and oral gift of the two attached properties still stand in the name of her ex-husband-Mr. Essa Ismail Sait, which were reflected in the Revenue Records. At the time of initiation of proceedings, the writ petitioner was found to be in possession and enjoyment of the property(ies) in question and the attachment was made invoking the provisions of the "Explanation" to Section 222 of the I.T. Act. The ex-wife (appellant-writ petitioner) of the assessee (Mr. Essa Ismail Sait) is deemed to be an assessee-in-default. The 'Gift Deed' was also declared to be void by the second respondent-Tax Recovery Officer. 14. Learned counsel appearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'void' under Section 281 of the Income Tax Act. 15. We accept the submission made on behalf of the appellant/writ petitioner that the respondents had no jurisdiction to declare the 'Oral Gift' (if any) as void. 16. So far as the remedy under Section 264 of the Income Tax Act relating to the "revision" before the authority of the Income Tax is concerned, the question of maintainability of the said "revision" can be looked into, if the status of the appellant-writ petitioner is verified to find out as to whether the proceedings were initiated against both the appellant-writ petitioner and her ex-husband or she is a third party having no relationship with the assessee. 17. It is not in dispute, as it appears from the record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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