RAMKRISHNA PANDURANG ACHAREKAR Vs. IVTH ITO

JUDGEMENT

(1.) BY the petition under Art. 226 of the Constitution of India, the petitioner challenged the legality of recovery proceedings against his property known as "Janki Niwas", D. L. Vaidya Road, Dadar, Bombay 400 028, by the TRO, G Ward, Bombay, and the proposed sale of the same. It is the case of the petitioner that he purchased the said property bona fide and in good faith for a sum of Rs. 80,000. The negotiations therefor started some time in April, 1980. After making necessary inquiries as to the title of the vendor, the sale deed was executed on 7th April, 1981. Tax clearance certificate dt. 5th Oct., 1981, from the ITO under S. 230A of the IT Act 1961, was obtained by the vendors, on the basis of which the sale deed was registered on 23rd April, 1982. Besides the usual inquiries, the petitioner, it is stated, had given notice in two local Marathi newspapers Bombay Sakal and Navashakti, thereby asking any person having any right, title or interest in the said property to come forward within 14 days thereof. It is stated that no objection was received by the petitioner from any quarter including the ITO. Thereafter, the petitioner started running a lodge in the name and style of "Hotel Amita" on the third floor of the said premises.

(2.) BY a letter dt. 26th April, 1983, Ex. H 1 to the petition, the TRO, G Ward, Bombay, required the petitioner to inform him whether he had purchased the said property; if so, whether the vendors, Shri K. K. More and others, obtained any clearance certificate from his office and, if so, to furnish a copy thereof. Some correspondence seems to have been exchanged between the TRO and the petitioner and, eventually, by proclamation of sale, Ex. N to the petition (vide pp. 34 to 37 of the paper book), the TRO put the said property to sale in terms of the letter to be auctioned on 7th Jan., 1984.

(3.) HAVING heard the rival contentions and after going through the petition, the documents attached thereto and the affidavit in reply, it appears to me that, for the purpose of this case, it may be assumed that the petitioner had purchased the suit property in good faith, i.e., after making all necessary enquiries. He may not have any hand in the vendors' obtaining a tax clearance certificate from an ITO who did not have jurisdiction over them. It may also be that he was not knowing that the property was under attachment. All the same, the fact remains that the property was under attachment and the tax clearance certificate was obtained from an ITO other than the ITO who had jurisdiction over the vendors. In the facts of the case, in my judgment, the provisions of r. 16 are clearly attracted. The sale is, thus, void and the TRO will be entitled to proceed to recover the taxes due from the vendors from the suit property.