9911796707
TMI Blog1978 (9) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... me. On the death of Ramnath, dispute arose between the plaintiffs and their step-mother, Smt. Tribeni Debi, over the properties left by their father. Tribeni Debi claimed the entire estate left by Ramnath. For realisation of the tax dues of the said Ramnath, several certificate cases were started against the plaintiffs and some properties of the plaintiffs were illegally attached on different dates. Such attachment was illegal. On these allegations, the plaintiffs brought the instant suit praying for, among others, the following reliefs : (a) a declaration that the plaintiffs are not liable in their personal capacity for the alleged tax dues of late Ramnath Bajoria ; (b) a declaration that the attachment of properties belonging to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the I.T. Act, 1961, and also those of s. 37 of the Public Demands Recovery Act, 1913, stood as a bar to the institution of the suit and, as such, the suit was not maintainable. It is significant to note here that the first relief claimed in this suit was a declaration that the plaintiffs were not liable in their personal capacity for the alleged tax liability of late Ramnath Bajoria. Section 159(1) of the I.T. Act, 1961, provides that where a person dies, his legal representatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. Sub-section (3) of the said section further provides that the legal representatives of the deceased s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint no list of properties is given which are said to be the personal properties of the plaintiffs. It is to be remembered that in this case only one witness was examined on behalf of the plaintiffs and he is one of the plaintiffs. No other witness was examined on either side. There were some documents filed on behalf of both the parties. During his deposition, PW-1 did not give any list of properties which, according to him, were attached and were the personal properties of the plaintiffs. Further, it will appear from what the witness stated in cross-examination and examination-in-chief that he was not a dependable witness. He gave out blatant lies. In the course of his examination-in-chief, he stated that they, the plaintiffs, did not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the plaintiffs. Mr. Saraf appearing for the appellants contends that the court of appeal below erred in not holding that the plaintiffs were entitled to declaration that the properties attached were the personal properties of the plaintiffs and were not liable to be attached in execution of the certificates which were filed before the TRO. From what has already been stated, it will appear that there is nothing on record to show which of the attached properties were the personal properties of the plaintiffs. It was not contended on the side of the appellants that the certificates were not duly filed. They also did not allege any case of fraud. It has also to be noted that on the side of the plaintiffs, no evidence was adduced to establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by an order under this Act of a sale held in execution of such certificate, shall be determined, not by suit, but by order of the Certificate Officer before whom such question arises, or of such other Certificate Officer as he may determine : Provided that a suit may be brought in a civil court in respect of any such question upon the ground of fraud. " The learned advocate appearing for the appellant argues that the court of appeal below was wrong in holding that the provisions of s. 37 of the Public Demands Recovery Act and those of r. 9 contained in Sch. II of the I.T. Act, 1961, barred the present suit. Thus, according to both the provisions referred to above, any question relating to the execution, discharge or satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal below was justified in holding that the present suit was barred by the provisions of r. 9 of Sch. II to the I.T. Act, 1961, and s. 37 of the Public Demands Recovery Act, 1913. Further, the provisions of rule 11 of Sch. II to the I.T. Act would also render the present suit a premature one. Sub.rule (1) of r. II, referred to above, provides that where any claim is preferred to, or any objection is made to, the attachment or sale of any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the TRO shall proceed to investigate the claim or objection. Thus, the question raised in the instant suit is one which could have been raised before the TRO according to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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