KUNJIKANNAN NAIR Vs. TAHSILDAR CANNANORE

JUDGEMENT

(1.) In the circumstances stated in C. M. Ps. 2369 of 1957 and 2367 of 1957, Writ Petitions 1280 and 1281 of 1956(M) are hereby restored, and they are being disposed of along with the Original Petition 358 of 1957, by this judgment.

(2.) One Sankaran Nair was assessed to Income Tax on 'escaped income' for the year 1947-1948 under S.34 of the Indian Income Tax Act, 1922, hereafter referred to as the Act, on April 24, 1953. By two deeds dated October 26 and October 27, 1952, he had conveyed some of his properties to some of the petitioners in these proceedings and the predecessors of some of them and others. For the realisation of income tax under the assessment referred to above, the Income Tax Officer, who is the third respondent in O. P. 358 of 1957, issued a certificate under S.46(2) of the Act to the Collector, Cannanore the second respondent therein, who thereupon placed an attachment over the properties conveyed by the deeds mentioned above, under the provisions of the Madras Revenue Recovery Act through the Tahsildar, the first respondent in O. P. 358 of 1957. Writ petitions 1280 and 1281 of 1956(M) were filed in the Madras High Court to quash the proceedings under the Madras Revenue Recovery Act, and were transferred to this court upon the formation of the Kerala State. As they happened to be dismissed for default of appearance of counsel, O. P. 358 of 1957 was filed by way of abundant caution for the same relief.

(3.) The point taken in these petitions is, that the properties attached did not belong to the assessee and could not therefore be proceeded against for the realisation of income tax due from him. There is no provision in the Madras Revenue Recovery Act which enables the Collector to attach and sell land, not registered in the defaulter's name, for arrears of revenue due from him. This has also been ruled by a Division Bench of the Madras High Court in Dhanalakshmi Ammal v. Income Tax Officer, AIR 1957 Mad. 376 . It was stated before me, that the properties attached are Jenmom' lands and stand registered in the name of the 'Jenmi' and not of Sankaran Nair. The learned counsel for the respondents maintained, that the stand taken by the department was, that the deeds of transfer made by Sankaran Nair were sham documents, and that notwithstanding such deeds, the transferees obtained no interest whatever in the properties, but that they continued to belong to the assessee, who was the defaulter. The proviso to S.46(2) of the Act which reads, "provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1978 a Civil Court has for the purpose of the recovery of amount due under a decree",