P.janarthana v. The Principal Commissioner Of Income Tax, Madurai – 1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.09.2020 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHANW.P.(MD)No.12985 of 2019 P.Janarthana Vs. ... Petitioner 1. The Principal Commissioner of Income Tax, Madurai – 1, No.2, V.P.Rathinasamy, Nadar Road, Bibikulam, Madurai. 2. The Assistant Commissioner of Income Tax, Central Circle-I, Income Tax Staff Quarters Campus, Kulamangalam Main Road, Madurai. 3. The Assistant Commissioner of Income Tax Circle -I, Circle -I, 40, Rehmath Nagar East, Kamaraj Nagar, Tirunelveli – 627 002. 4. The Deputy Commissioner of Income Tax, 40, Rehmath Nagar East, Kamaraj Nagar, Tirunelveli – 627 002. 5. The Income Tax Officer(H.Qrs.) - 1, Office of the Principal Commissioner of Income Tax, Madurai -1, No.2, V.P.Rathinasamy Nadar Road, Bibikulam, Madurai. 6. R.Purushothaman (R-6 is impleaded vide order dated 16.07.2020 in W.M.P.(MD)No.7125 of 2020) ... Respondents Prayer: Writ petitionis filed under Article 226 of theConstitution of India, to issue a Writ of Mandamus, directing therespondents to release the jewels forthwith. For Petitioner : Ms.Lita SrinivasanFor R-1 to R-5 : Mrs.S.Srimathy, Standing Counsel. For R-6: Ms.P.Jessi Jeeva Priya https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the petitioner andthe learned Standing counsel appearing for the Income TaxDepartment and the learned counsel appearing for the sixthrespondent. 2. The petitioner states that she got married to the sixthrespondent herein and they were having their matrimonial home atII Street, Perumal Puram, Tirunelveli. There was a raid on thesaid premises on 04.07.2006. According to the petitioner, thepetitioner was living in the said matrimonial home along with herson and daughter during the relevant time and due to difference ofopinion, the sixth respondent was not living in the premises then.During the raid, 75 sovereigns of jewels were seized. Theofficials of the Income Tax Department had drawn up a panch-namasetting out the list of jewellery seized. In the said panch-nama,it is the petitioner, namely, Mrs.Janarthana who had affixed hersignature. 3. It is not in dispute that the demand of the Income TaxDepartment has since been settled. It appears that the sixthrespondent, namely, the petitioner's husband had settled the claimof the Income Tax Department. Be that as it may, the Departmentcannot no longer retain the jewellery seized from the saidpremises in the year 2006. The petitioner therefore made a claimfor return of the said jewellery. But the Department has taken thestand that since objection has been raised by the sixthrespondent, namely, the husband of the petitioner, they are not ina position to return the jewellery to the petitioner. Therefore,this writ petition has been filed for directing the Income TaxDepartment to hand over the seized jewellery to the petitioner. 4. The stand of the Income Tax Department is that sincethere is a dispute between the petitioner and her husband, theyare not in a position to hand over the jewellery to either party.The Department states that they will abide by the orders that maybe passed by this Court. 5. The sixth respondent/husband had filed a detailedcounter affidavit running to 96 paragraphs and spread over 24pages. It is stated therein that the seized jewellery waspurchased only by the sixth respondent and that therefore, thedepartment must return the seized jewellery only to him and not tothe petitioner. In fact this stand has also been reflected in theLawyer's Notice dated 13.07.2018. https://hcservices.ecourts.gov.in/hcservices/ 4. The stand of the Income Tax Department is that sincethere is a dispute between the petitioner and her husband, theyare not in a position to hand over the jewellery to either party.The Department states that they will abide by the orders that maybe passed by this Court. 5. The sixth respondent/husband had filed a detailedcounter affidavit running to 96 paragraphs and spread over 24pages. It is stated therein that the seized jewellery waspurchased only by the sixth respondent and that therefore, thedepartment must return the seized jewellery only to him and not tothe petitioner. In fact this stand has also been reflected in theLawyer's Notice dated 13.07.2018. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel appearing for the sixth respondentreiterated all the contentions set out in the said counteraffidavit. Her core argument is that in view of such a factualdispute, this Court will not be justified in giving the directionsought for by the petitioner. According to the learned counselappearing for the sixth respondent, the question before this Courtis who owns the seized jewellery; whether the petitioner or thesixth respondent. The petitioner had not produced even a scrap ofmaterial to show that the seized jewellery belongs to her. Thelearned counsel would point out that even according to thepetitioner, the place where the raid took place belongs only tothe sixth respondent and not to the petitioner. Hence it is onlyjust and proper that the petitioner is relegated to the civilCourt for establishing her so-called ownership over the seizedjewellery. It is further contended that the issue has to beconsidered by the Tax Recovery Officer under Rule 11 of the SecondSchedule to the Income Tax Act 1961. The learned counsel appearingfor the sixth respondent called for dismissal of this writpetition. 7. I carefully considered the rival contentions and wentthrough the materials on record. 8. It cannot be in dispute that though the place where theraid took place belongs to the sixth respondent, it was very muchthe matrimonial home of the petitioner. During the relevant time,obviously, the sixth respondent was not available. It was onlythe petitioner who signed in the panch-nama. The panch-namastates that the following articles were seized:- https://hcservices.ecourts.gov.in/hcservices/ 9. It is obvious that these seized jewellery are worn bywomenfolk. The learned counsel appearing for the petitioner drawsmy attention to Section 14(1) of the Hindu Succession Act, 1956which reads as follows:- “14. Property of a female Hindu to be herabsolute property - (1) Any property possessed by afemale Hindu, whether acquired before or after thecommencement of this Act, shall be held by her asfull owner thereof and not as a limited owner.”Explanation.—In this sub-section, "property"includes both movable and immovable property acquiredby a female Hindu by inheritance or devise, or at apartition, or in lieu of maintenance or arrears ofmaintenance, or by gift from any person, whether arelative or not, before, at or after the marriage, orby her own skill or exertion, or by purchase or byprescription, or in any other manner whatsoever, andalso any such property held by her as stridhanaimmediately before the commencement of this Act.” 10. She also relied on the decision of the Hon'ble SupremeCourt reported in AIR 1985 SC 628 (Pratibha Rani V. SurajKumar). 10. She also relied on the decision of the Hon'ble SupremeCourt reported in AIR 1985 SC 628 (Pratibha Rani V. SurajKumar). 11. In the light of the aforesaid statutory provision andthe aforesaid decision of the Hon'ble Supreme Court, the questionas to who had purchased the jewellery will pale intoinsignificance. Even if I assume that the sixth respondent hadpurchased the seized jewellery, still that will not affect therights of the petitioner. Undoubtedly, the petitioner is the wifeof the sixth respondent and that therefore, the sixth respondentobviously has the duty to maintain the petitioner. The parties areliving separately for so many years and matrimonial proceedingsare pending between them. I posed a specific question to thelearned counsel appearing for the sixth respondent as to whetherthe sixth respondent has been paying any maintenance every monthto the petitioner. The learned counsel stated that the sixthrespondent performed the marriages of both the son and daughter.That in my view is not an answer to my question. The seizedjewellery could have been put to use only by the petitioner andnot by the sixth respondent. Section 14(1) of the Hindu SuccessionAct, 1956 makes it clear that any property possessed by a femaleHindu shall be held by her as full owner thereof and not as alimited owner. Of course in Section 14(1), the expression“acquired” is also occurring. So mere possession by itself may notsuffice. The female Hindu must have acquired it. But theexplanation to Section 14(1) states that the property can beacquired by a female Hindu in any one of the modes set outhttps://hcservices.ecourts.gov.in/hcservices/therein. In the explanation, one comes across the expression “any other manner whatsoever”. The sixth respondent being the husbandof the petitioner is obliged to maintain her and the seizedjewellery can very well be considered as having been acquired bythe petitioner in lieu of past maintenance. The sixth respondentdid not originally assert any claim over the seized jewellery orcall upon the petitioner to return the same. Therefore, I holdthat the petitioner is entitled to the seized jewellery.Respondents 1 to 5 are directed to return the seized jewellery tothe petitioner immediately and without any delay. 12. This Writ petition stands allowed. No costs. Assistant Registrar(Records) Sub Assistant Registrar(CS) pmu Note: In view of the present lock down owing toCOVID-19 pandemic, a web copy of the order may beutilized for official purposes, but, ensuring thatthe copy of the order that is presented is thecorrect copy, shall be the responsibility of theadvocate/litigant concerned. +1 CC to M/s.S. SRIMATHY, Advocate ( SR-16812[F]dated 15/09/2020 ) +1 CC to M/s.L. SRINIVASAN, Advocate ( SR-16811[F]dated 15/09/2020 ) https://hcservices.ecourts.gov.in/hcservices/