SUNDERLAL DAGA Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) CHALLENGE in this writ petition is against the order Annexure E rendered by the first respondent. For the income tax dues from Adam Ali and Hatimbhai 1/4 share each of the said defaulters in 7.73 acres of land comprised in Kh.No.20 situated at Mouza Kachimeth, Tq. and Dist. Nagpur, was attached by the first respondent. The said attachment orders dated 4.5.1974 are at Annexures A and B. Against the said attachment, the petitioners had preferred Annexure C objection by way of claim contending, the said survey field belonged to the firm M/s.K.S.M.Hassonjee & Sons and that the senior partner Mulla Fida Ali sold the property to the petitioners pursuant to an agreement to sell in their favour on 1.2.1972. They contended that they were put in possession pursuant to the said agreement to sell, and later sale deeds were also executed. Thus, according to them, they were in possession of the entire property, which included the said 1/2 share which was attached. It is their case that they are in possession as absolute owners and, therefore, the said property was not liable for the claim against the defaulters. The first respondent, the Tax Recovery Officer (for short 'the T.R.O'), by annexure E order, dismissed their objection.

(2.) IN this writ petition, the contention of the first respondent is that the property did not belong to the aforesaid firm, but it originally belonged to Mulla Akbarali and his brother Mulla Fidali. Mulla Fidali had two sons Hatimali and Adamali, the defaulters. Akbarali was having 1/2 share and Fidali was having the balance 1/2 share in the whole property. After the death of Mulla Fidali his sons Hatimali and Adamali inherited 1/4 share each in the said property. Thus, according to the first respondent, the defaulters Hatimali and Adamali were having 1/2 share in the property and that the said 1/2 share was attached for satisfying the claim of arrears of income tax due from the aforesaid two defaulters. As already indicated, it is their case that the alleged firm M/s.K.S.M.Hassonjee and Sons, never had any interest in the property and that Akbar Ali was not competent to deal with the whole property as if the same belonged to the aforesaid firm.

(3.) AS indicated, by the impugned order, the first respondent rejected the claim on the ground that the alleged sale deeds in favour of the writ petitioners are violative of Section 230A of the Income tax Act, 1961 (for short 'the I.T. Act'). Apart from finding that the aforesaid sale deeds are violative of Section 230A of the I.T.Act, the first respondent also found that the property did not belong to the aforesaid firm; and that Section 281 of the I.T.Act has no application as the sale deeds in favour of the petitioners were not executed by the defaulters.