BHARATIBEN JAYANTIBHAI THAKKAR Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) RULE . Heard learned counsel for the parties. In this petition, the petitioner challenges the attachment of her property for recovering the dues of the firm M/s Komal Tea Co. of which she is not a partner. Her husband is a partner in Komal Tea Co. and the property which is attached is acquired by the petitioner from her own resources, by disposing of other properties owned by her and which has already been subjected to tax as her property in the past. Notwithstanding pointing out these facts to the AO he instead of deciding the objection against the attachment of the property has directed the Recovery Officer to recover the dues of the firm in respect of which at best her husband can be made liable and for which property of her husband can be attached, by proceeding against the property of the petitioner.

(2.) THE case of the respondent is that the petitioner has no ostensible source of income from which the property could have been acquired by her and, therefore, the properties under attachment are held by her as benami for her husband. We are constrained to say that the concerned ITO in exercise of the his jurisdiction under the Act has failed to draw distinction between his role as a prosecutor and as an adjudicator. As a prosecutor he is entitled to hold a belief which must be prima facie founded on some material and initiate proceedings on that basis. That would justify his initial action of directing attachment of the petitioner's property considering it to be held by her as benami for her husband for the purpose of recovering arrears from M/s Komal Tea Co. of which her husband was a partner. However, in doing so, he is not absolved from duty to act fairly. Such belief cannot be a mere pretence. Our Constitution envisage freedom of individual, equal protection of law and forbids discrimination on the ground of sex. A female has as much independent status and right to hold property in her own right as a male has.