GEORGE THOMAS Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THE petitioner feeling aggrieved by the attachment of the house in his possession and the order dated June 15, 1990, passed by the Tax Recovery Officer in relation thereto requiring the petitioner to prove his ownership of the said house, has preferred this writ petition, challenging the legality and validity of the action of the respondent praying for the relief of issue of a writ of mandamus or any other suitable writ.

(2.) IT appears that the house in question stands recorded in the ownership of the petitioner's wife, who is a defaulter in the payment of tax. The respondent apprehending that the house may be transferred so that the recovery of tax may be avoided, has provisionally attached the said house. A copy of the attachment order having been served on the petitioner, he claimed that the attachment was illegal inasmuch as he was in possession of the house and that he is also the owner thereof. Since this objection needed investigation, the respondent directed the petitioner to produce documentary evidence of his ownership. The case of the petitioner is that the respondent cannot go into the question of ownership of the property and his jurisdiction is limited to ascertaining whether the petitioner was in possession of the property. The submission in other words is that once it is held or admitted that the petitioner was in possession of the attached property, no further enquiry into the claim of the petitioner can be made. Reliance is placed on rule 11(3) to Schedule II to the Income-tax Act. Sub-rule (3) has to be read in the context of sub-rule (1), which deals with the claim preferred or objection made to the attachment or sale of the property. The said claim or objection has to be investigated by postponing the sale in case the sale had been ordered, as would be clear from sub-rule (2). In order to facilitate an investigation of the claim, the claimant or objector has to produce evidence in support of his claim or objection. IT is true that sub-rule (3) requires the claimant to show that he has some interest or was possessed of the property under attachment. The use of the word "possessed" does not mean mere possession and would not in any case include possession for or on behalf of the defaulter. This rule is a part of the scheme given under rule 11 of the Second Schedule and hence, the word "possession" has to be appreciated in the context not only of the claim or objection preferred or made under sub-rule (3), but also of the aforesaid right of the Tax Recovery Officer to investigate under sub-rule (4). Sub-rule (4) requires the Tax Recovery Officer to be satisfied that the property was not in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him or that, being in the possession of the defaulter at the said date, it was so in his possession not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person. This would, therefore, clarify that the word "possession" used in sub-rule (3) has to be "possession of the claimant or objector in his own right and not in trust for or on behalf of the defaulter". Therefore, the broad submission that only possession has to be seen and nothing else, as canvassed by learned counsel in the instant case, cannot be accepted. The submission that no finality is attached to the decision of the Tax Recovery Officer in the matter of title, does not take away the jurisdiction of the said officer to decide the title. This is clear from sub-rule (6), which permits the person aggrieved by the decision of the Tax Recovery Officer to institute a civil suit to establish the right which he claims over the property in dispute and the order of the Tax Recovery Officer is given finality only subject to the decision in the suit. In other words, if the party, against whom the decision given by the Tax Recovery Officer does not challenge the same by filing a suit in a civil court, the said order itself would become conclusive. This would, therefore, indicate that the right to decide even the question of ownership and title remains with the Tax Recovery Officer. Under the circumstances, the notice given to the petitioner to produce evidence in support of his objections, should not have offended the petitioner in any manner. The petitioner should have realised that he himself had stated in his claim application that he was the owner of the said property. Having taken the aforesaid objection, the petitioner could not have expected the Tax Recovery Officer to accept the said objection without any proof thereof. Under the circumstances, the notice must be held to be fully legal and justified and no interference is called for.