C DHANALAKSHMI AMMAL Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is an application for leave to appeal to the Supreme Court of India against an order passed by this court dismissing a petition filed under article 226 of the Constitution by the petitioner. In that petition she prayed for the issue of a writ of mandamus restraining the Income tax Officer, Second Additional City Circle, Madras, the Collector of Nilgiris District, and the Tahsildar of Coonoor, from proceeding to attach, or to bring to sale the petitioner's properties for the realisation of the alleged income tax arrears of her husband, Tharanisingh Gramani, and in particular from proceeding with the sale of Benhutty Estate, in the Nilgiris district.

(2.) THE facts material for this petition may be briefly stated. For the recovery of arrears of income tax due from the petitioner's husband a certificate was issued by the Income tax Officer to the Collector of Nilgiris under section 46(2) of the Income Tax Act, 1922. THE Collector in pursuance of this certificate proceeded to attach the property described as Benhutty Estate for the realisation of the said arrears. It is common ground that this estate was purchased in the name of the petitioner under a deed of sale dated 1st September, 1947. Nevertheless the property was sought to be attached because according to the Income tax Department though the ostensible title stood in the name of the petitioner, she was only a benamidar and that the real owner was the defaulting assessee, her husband. THE petitioner alleged that there was no provision in the Madras Revenue Recovery Act, which enabled the Collector to attach and sell any land other than the land of the defaulter and land which is registered in the name of someone other than the defaulter could not be deemed to be the land of the defaulter. This court agreed with that contention of the petitioner but on behalf of the respondents it was contended that in exercise of the additional powers conferred on the Collector under the proviso to section 46(2) of the Income tax Act, namely, the powers of a civil court for the purpose of the recovery of an amount due under a decree, the Collector was entitled to attach a property ostensibly standing in the name of a person other than the defaulter on the ground that it really belonged to the defaulter. With this contention this court agreed. Learned counsel for the respondents also intimated to the court that the attachment in this case would be treated as an attachment under the provisions of the Civil Procedure Code and that the petitioner would be entitled to prefer a claim if she chose to. In view of this court dismissed the writ petition also observing that the party who felt aggrieved by the decision of the Collector on such a claim made by the petitioner would have the right of a suit under Order XXI, rule 63, of the Civil Procedure Code. THE result of the dismissal of the writ petition by this court was to allow the attachment made by the Collector to continue and to enable the parties, that is, both the Department and the petitioner to take such steps as they were entitled to in law. This court never went into the question of title of the petitioner to the attached property. THE application for leave to appeal is made under article 133(1) of the Constitution. THE petitioner stated that the value of the subject matter of the dispute in the writ petition and still in dispute on appeal to the Supreme Court is over Rupees twenty thousand and that the matter involves a substantial question of law. THE application was opposed by Mr. Rama Rao Sahib, special counsel for the Income tax Department. He raised three objections, namely, (1) that the order sought to be appealed is not an order passed by this court in a civil proceeding, (2) in any event it is not a final order, and (3) the requirement as to valuation of the subject matter involved is also not satisfied as it cannot be said that the value of the subject matter of the dispute is not less than Rupees twenty thousand. Nor can it be said that the order involves directly or indirectly some claim or question respecting property of the like amount or value. Mr. M. K. Nambiar for the petitioner tried to meet all these objections. THE questions raised are not free from difficulty and after careful consideration we have come to the conclusion that the petitioner is not entitled to leave to appeal to the Supreme Court as of right under article 133(1) of the Constitution.

(3.) IN a proceeding under article 226 the High Court is not concerned with the determination of the civil rights of the parties the only object of such a proceeding under article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction." * And again at page 105 :