N S VIJAYARAGHAVAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE appellant demanded return of sale deed No. 1250/1976 dt. 5th April, 1967 in respect of Sy. No. 946 of Changazhassery village measuring 17 cents of land on the ground that it was only deposited as security in respect of the amounts due to the IT Department and that there is no need for retention of the said security, there being no subsisting dues of the appellant. The request was turned down on the ground that the deposit of title deeds was made as a security towards the dues of the appellant's father Sri B.N. Sreedharan Unni. As Sreedharan Unni still continues in arrears to the Department, the question of returning the document does not arise is the stand taken by the Department. The learned Single Judge has accepted the case of the Department and dismissed the writ petition. Hence, this appeal.

(2.) AS we were not satisfied with the materials placed before the Court, we gave an opportunity to the counsel for the IT Department to produce materials with them which would probabalise the case of the Department that the document was deposited by way of security not in respect of the dues of the appellant but in respect of the dues of his father Sri Sreedharan Unni. The learned counsel has not been able to produce any specific material which recites that the document of title deposited by the appellant has been stated to be in respect of the tax dues from his father Sri Sreedharan Unni or that the Department has treated the deposit as having been made in respect of the dues of Sri Sreedharan Unni. The learned counsel for the Department, however, submits that there are glaring circumstances available in the case which make the Department's version highly probable. It was submitted from Ext. R2(b), a communication from the ITO, Central Circle, Ernakulam dt. 19th Feb., 1972, addressed to the Addl. CIT (Recovery), Madras, that the dues of the appellant's father towards regular demand was Rs. 10,241 and Rs. 2,01,902 towards advance tax. So far as the appellant is concerned nothing is shown towards the regular demand and only a small amount of Rs. 1,913 is shown as advance tax. From this material it was sought to contend that there was no such pressure for giving security so far as the appellant is concerned. It was submitted that it was rather only by way of advance tax towards amount due that the security was given. From this circumstance it was tried to establish that there was no demand at all from the Department against the appellant. It is not possible to accede to this contention, for, it is stated at the end of paragraph 4 of Ext. R2(b) that revenue recovery certificates have been issued to the Tax Recovery Officer, Quilon, requesting him to take early steps to collect the advance tax arrears. Recovery certificates regarding arrears of revenue recovery could not have been issued unless a demand was issued in respect of the advance tax payable by the appellant and he had failed to pay the amount within the specified time. It is, therefore, not possible to accede to the contention that there was no pressure so far as the appellant is concerned to offer any security. In paragraph 5 of Ext. R2(b), the details of the arrears have been furnished. The document in question is serial No.17. This would probabalise the case of the appellant that having regard to the pressure of the authorities for recovery of the advance tax in respect of which proceedings were initiated against the appellant and revenue recovery certificates were issued, that it became necessary to offer security. It is no doubt true that the amount due from the appellant was a very small amount of Rs. 1,913 as compared to a very huge amount which was due from his father. The fact that the appellant had not paid the advance tax due thus justifies the inference that he was not in a position to pay the amount due from him. The mere fact that the property is very valuable worth more than Rs. 40,000 is not by itself a circumstance to indicate that the same must not have been filed as security towards the dues of the appellant. There is another serious problem in the way of the Department. The records clearly indicate that the appellant was a minor. It is, therefore, reasonable to proceed on the basis that the appellant's father Sri Sreedharan Unni was his guardian and was entitled to act on his behalf. It is necessary to point out that the security has not been furnished by the appellant's father in his capacity as a guardian. The document produced by the respondents as Ext. R2(a) says that the document was deposited by the appellant himself. Ext. R2(a) is addressed to the ITO, Central Circle, Ernakulam, which says that