TARAPORE AND CO Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THE writ appeal is filed against the order of the dismissal of the writ petition in W. P. No. 14198 of 2000, wherein, the relief of issuance of a writ of declaration, declaring that Rule 11 of the Second Schedule to the Income Tax Act, 1961, as ultra vires and unconstitutional and consequently to strike down the said Rule, has been sought for.

(2.) THE said relief was sought on the ground that the Tax Recovery Officer, being a statutory creation, cannot decide the issue as to the bona fide of the transfer made in respect of the property owned by the alleged defaulter under the Income Tax Act. Even to find out as to whether any transfer of property was made with the intention to defraud the revenue, some enquiry has to be conducted under Rule 11(6) of the Act. Such enquiry can only be carried out by a competent Civil Court. Such power vested with the Tax Recovery Officer to conduct an enquiry is illegal and against the Article 19 of the Constitution of India.

(3.) THE next submission made by the learned Senior Counsel for the petitioner is that the Officer, belongs to the Department cannot decide his own case, and so the said provision cannot be sustained. But unfortunately, this issue has not been raised in the said writ petitions in W. P. Nos. 1919 and 280 of 1996. In the said writ petitions, the learned Judge has directed the Tax Recovery Officer, to proceed further after giving due notice to the petitioner to hold an enquiry. So, at this stage, the petitioner cannot challenge the said provision, on the ground that the Tax Recovery officer is a departmental officer. Even if any order is passed by the Tax Revenue Officer against the interest of the petitioner, it can always file an appeal before the Chief Commissioner or Commissioner under Rule 86 to the schedule. " THE correctness of the said order is now canvassed in this writ appeal.