IQBAL BEGUM Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THESE writ petitions challenge the validity of attachment orders made by the Tax Recovery Officers with respect to the attachment of the properties which stand registered in the names of the petitioners for the recovery of income-tax arrears due from the respective husbands of the petitioners in Writ Petitions Nos. 484 of 1969 and 1144 of 1970, and the father of the petitioner in Writ Petition No. 801 of 1970. The petitioner in Writ Petition No. 484 of 1969 is one Iqbal Begum and an extent of 12 acres, 43 cents which was purchased in her name under sale deeds dated December 15, 1963, and January 5, 1964, was attached and proclaimed for sale for the recovery of income-tax arrears due from her husband on the ground that the defaulter purchased the properties in the name of his wife, the petitioner, that the petitioner was a benamidar, that the real owner was the defaulter and that the properties had been in the possession and enjoyment of the defaulter. The attachment and the proclamation of sale in respect of property concerned in Writ Petition No. 1144 of 1970 were also made in identical circumstances. The property purchased in the name of the petitioner therein was a house property. The facts in Writ Petition No. 801 of 1970 could be mentioned at a later stage.

(2.) IN these writ petitions, the learned counsel for the petitioner conceded for the purpose of argument that the petitioners were benamidars and the legal or real ownership in the properties attached is vested in the defaulter, but he contended that the provisions of the INcome-tax Act, 1961, and the Second Schedule thereof do not authorise the Tax Recovery Officer to attach and bring to sale any property which stands in the name of or registered in the name of a third party and that only those properties which stand registered in the name of the defaulter could be attached and brought to sale for recovery of the arrears of income-tax due from the defaulter.

(3.) IT is not the case of the petitioners that property held benami in the name of a third party is one of those properties exempted from attachment and sale in execution of a decree of a civil court under the provisions of the Code of Civil Procedure, 1908. All properties of the defaulters are liable for attachment and sale for recovery of amount due from him. If any property is to be exempt from attachment, a specific provision to that effect is necessary. Rule 10 provides for exemption from attachment of certain properties. What is not exempted under Rule 10 is, in our view, liable to be attached and sold. Therefore, on a plain reading of Rules 4 and 10, we are of the view that properties held in the name of the defaulter or by another in trust or on his behalf are liable for attachment and sale, Such a power also could be inferred from Rule 11 of the Second Schedule. The said Rule 11 of the Second Schedule reads as follows :