VIMLABEN KHIMJI Vs. MANVIKAR H S

JUDGEMENT

(1.) THIS is a petition for challenging the validity of a prohibitory order issued by the Addl. Collector of Bombay on 22nd Nov., 1961, under Order 21, r. 54, of the CPC against the HUF of Shri Khimji Devji.

(2.) ONE Khimji Devji died in Bombay on 29th Jan., 1959. The first petitioner is the widow of the said Khimji and the second, third and the fourth petitioners are the sons of the said petitioner. It is alleged that the said Khirmji died leaving a will dt. 1st Feb., 1958. Under this will, the first, second and the third petitioners are appointed executors and the petitioners are the sole beneficiaries thereunder. The HUF consisting of the said Khimji and sons owned certain immovable properties. The said Khimji also derived income from businesses that were carried on in partnership in the name of Teju Kaya and Company and other businesses in sub -partnership. From and after the asst. yr. 1935 -36, the income derived from the immovable properties belonging to the joint family and also the income coming to the share of the said Khirmji from the partnership of Teju Kaya & Co. and other sub -partnerships was assessed in the hands of the said Khimji in the status of an HUF. The said Khimji accepted the position adopted by the IT Department up to the year 1943 -44. For the asst. yrs. 1944 -45, 1945 -46, 1946 -47 and 1947 -48 the said Khimji was assessed in the status of an HUF and the income from the immovable properties as well as the income from the partnership of Teju Kaya & Co., and other sub -partners ships was taxed in the hands of the said Khimji in the status of an HUF. By an order dt. 28th March, 1949, assessment was made for the year 1944 -45. On 17th May, 1949, recovery certificate was issued under S. 46(2) of the IT Act for recovering the amount that was due by the assessee for the year 1944 -45. In the year 1949 an attachment was levied upon the immovable properties belonging to the HUF for the sum of Rs.

(3.) ON behalf of the respondents in the affidavit in reply filed by the Fourth ITO on 12th June,1962, he has stated that the attachment was levied by the Collector on 22nd Nov., 1961, in pursuance of the certificate already issued to, him in 1949 and in 1956 and the attachment that was levied in November 1961, was an additional attachment. He has further stated that on the said date when the Collector issued the said attachment order dt. 22nd Nov., 1961, a sum of Rs. 7,74,335 was due from the HUF of the said Khimji. It is further stated that the said Collector had included a sum of Rs. 3,74,914.14 nP. in the said prohibitory order as that amount is due from the legal heirs and representatives of the deceased Khimji. This amount of Rs. 3,74,914.14 nP. was payable individually by the said deceased Khimji and that was not the liability of the HUF. This position has, however been not adopted in the affidavit that has been filed on behalf of the respondents in sur - rejoinder on 27th Feb., 1963. It is pointed out in this affidavit that an intimation was given by the Fourth ITO to the Collector in October or November, 1961, that on 12th Oct., 1956, as per the recovery certificate sent under S. 46(2) of the IT Act, the demand for the asst. yrs. 1944 -45 to 1947 -48 came to Rs. 8,86,889.30 nP. against the said Khimiji. After the receipt of the certificates some payments have been made by and on behalf of the said HUF. The two payments are referred to in the supplementary affidavit. One Payment is of Rs. 1,62,071 being the amount of the sale proceeds of the two properties referred to in the affidavit in rejoinder and the second payment it of Rs. 7,945.82 nP. It is further stated that after giving credit for the said two amounts, the net amount due from the said HUF for the years 1944 -45 to 1947 -48 is Rs. 7,16,872.48 nP.