Wp/32134/2010 Of Ms. Pragada Sai Sudha v. The Commissioner Of Income Tax

THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.32134 of 2010 19.01.2011 Between: Pragada Sai Sudha AND …. Petitioner The Commissioner of Income Tax,Ayakarbhavan, HyderabadAnd others. … Respondents THE HON'BLE SRI JUSTICE V.V.S.RAOANDTHE HON'BLE SRI JUSTICE RAMESH RANGANATHANWRIT PETITION No.32134 of 2010 ORDER:(Per Hon’ble Sri Justice V.V.S.Rao) In this second round of litigation invoking Article 226 ofConstitution of India, the cause of action for the petition is the same,namely, the attachment of the immovable property (Flat No.GF1, SaiKuteer Apartments, Akkayyapalem, Visakhapatnam) purchased by thepetitioner on 01.12.2008. In the earlier writ petition being W.P.No.19252of 2009 assailing the order of attachment by the Tax Recovery Officer –third respondent herein; for recovery of the tax dues of the fourthrespondent, was disposed of by this Court directing the officialrespondents to consider the objections raised by the petitioner withinthe stipulated period and restrained them from disposing of the subjectproperty till objections are considered. In this writ petition, the grievanceis inaction on the part of the official respondents especially the thirdrespondent. At the stage of admission itself, the Junior StandingCounsel for Income Tax has placed before this Court a letter of the thirdrespondent dated 17.11.2009, rejecting the objections. The contentsthereof cover the fact of the matter and the reasoning for rejection, andwe need to excerpt herein below. It is brought to your notice that M/s.Surabhi Builders,Visakhapatnam a partnership firm is in Income Tax arrears tothe tune of Rs.1,97,23,000/-. Sri S.A.S.V.Prasad is theManaging Partner and Smt Surabhi Subhashini, W/o SriS.A.S.V.Prasad is the other partners of the defaulter firm. Asthe assessee did not pay the tax within the time allowed, thecase was referred to the undersigned by drawing a CertificateU/Sec 222 by the Income Tax Officer, Ward-4 (1),Visakhapatnam. Soon after receipt of the Certificate u/Sec. 322,notice of Demand to the defaulter in Form No.ITCP-1 and FormNo.57 were issued on 24.10.2008 and the same were servedon the Managing Partner of the defaulter firm on 30.10.2008.The first referred to in your letter was attached on 27.07.2008.In the objections raised by you, it is mentioned that you hadpurchased the Flat GF-1, D.No.49-39-9/1, Sai KuteerApartments, NGGO’s Colony, Visakhapatnam on 01.12.2008from Smt S.Subhashini under a Registered Sale Deed. In thisconnection, it is brought to your notice that under Rule 51 ofSecond Schedule in Income Tax Act, 1961 the attachment ofimmovable property, deemed to be effect from the date ofservice of Form No.ITCP-1 and not from the date ofattachment. Any charge created before the attachment, butafter the service of Form No.ITCP-1 will have to giveprecedence to the attachment. In the instant case, the ITCP-1was served on 30.10.2008 on Smt.Surabhi Subhashini, Partnerin M/s.Surabhi Builders, Visakhapatnam whereas theRegistered Sale Deed was executed on 01.12.2008 i.e., afterthe date of service of ITCP-1. Therefore, though the actual attachment was made on27.07.2008 if taken affect from 30.10.2008 i.e., date of serviceof ITCP-1. In the above circumstances, it is brought to your notice that thesale deed executed by Smt.Surabhi Subhashini on 01.12.2008is null and void and the same is inoperative in the eye of law.Hence, the Order of the attachment made on Flat No.GF-1,D.No.49-39-9/1, Sai Kuteer Apartments, NGGO’s Colony,Visakhapatnam on 27.07.2009, by serving ITCP-16 onSmt.Surabhi Subhashini, is in force and very much operative inthe eye of law. Accordingly, the objections raised by you videreference (2) cited above, are hereby rejected. The counsel for the petitioner having regard to the abovecommunication does not pursue the matter further. We give liberty to thepetitioner to take such legal course as is available under law andexpress no opinion on the contentions raised herein. In the above circumstances, it is brought to your notice that thesale deed executed by Smt.Surabhi Subhashini on 01.12.2008is null and void and the same is inoperative in the eye of law.Hence, the Order of the attachment made on Flat No.GF-1,D.No.49-39-9/1, Sai Kuteer Apartments, NGGO’s Colony,Visakhapatnam on 27.07.2009, by serving ITCP-16 onSmt.Surabhi Subhashini, is in force and very much operative inthe eye of law. Accordingly, the objections raised by you videreference (2) cited above, are hereby rejected. The counsel for the petitioner having regard to the abovecommunication does not pursue the matter further. We give liberty to thepetitioner to take such legal course as is available under law andexpress no opinion on the contentions raised herein. The writ petition with the above observations stands dismissed.There shall be no order as to costs. _______________ 19.01.2011Pln ______________________________ (RAMESH RANGANATHAN, J)