9911796707
TMI Blog2025 (1) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction for release of the aforesaid property from an attachment issued by the 1st respondent. 2. Petitioners are the decree holders in O.S No. 185/2006 on the files of the Sub Court, Alappuzha. The said suit was filed claiming amounts due from the 2nd respondent. On the date of filing of the suit, an attachment before judgment was obtained under Order 38 Rule 5 of the Civil Procedure Code, 1908 [for short "C.P.C], in respect of 6 cents of property. Subsequently, pursuant to mediation, an award was passed as Ext.P1 on 03.04.2007, allowing the petitioners to recover an amount of Rs. 2,15,000/- with 6% interest, from the date of suit from the 1st defendant and the property scheduled therein. Subsequently, execution proceedings were init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion raised by the petitioners are based upon the alleged bona fide purchase of a part of the property, now under attachment, initiated by the Income Tax Department. Petitioners contend that the property purchased by them cannot be proceeded against by the Income Tax Department for alleged dues of the 2nd respondent. 6. I have heard Sri. Sachithananda Pai, the learned counsel for the petitioners as well Sri. Cyriac Tom, the learned Standing counsel appearing on behalf of Sri. Jose Joseph, the learned Senior Standing Counsel for the 1st respondent. 7. The scheme of the Income Tax Act enables the department to proceed against the property of an assesse for recovery of amounts due. In order to enable the Income Tax Department to proceed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that, if the transfer is made for an adequate consideration and without notice of the pendency of the proceedings by the Income Tax Department or without notice of such tax due from the assessee, the transfer cannot be deemed to be void. 9. A glance at the dates involved in the present case is relevant. On 29.11.2006, O.S. No.185/2006 was instituted and an attachment before judgment was obtained. On 03.04.2007, Ext. P1 award was passed creating a charge on the property scheduled in the plaint. Till then, the Income Tax Department had not attached any part of the property of the 2nd respondent. Subsequently, an execution petition was filed and the property was brought for sale on 14.01.2009. By then the Income Tax Department had pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of property and therefore, no prejudice would befall the Income Tax Department, if they proceed against the remaining extent. 12. In the decision in S. Mathews v. The Secretary Ambalappuzha North Grama Panchayath and others [W.P.(C) No. 21769/2017], a learned Single Judge of this Court, had, in a similar situation, observed that, in the facts of the said case, since the sale was without notice of the proceedings initiated by the Income Tax Department, the benefit of proviso to Section 281 of the Income Tax Act, 1961 ought to be accorded to the petitioner therein. I am in respectful agreement with the said preposition and the petitioners are also entitled to be given the same benefit. 13. Having regard to the above circumstances, the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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