Wp(C)/8427/2014 Of P.p.ouseph v. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936 WP(C).No. 8427 of 2014 (C) --------------------------- PETITIONER(S): -------------------------- P.P.OUSEPH, S/O. PARACKEL PAULO, PARACKAL HOUSE, POYKKATTUSSERY, CHENGAMANAD P.O., NEDUMBASSERY, ERNAKULAM DISTRICT. BY ADVS.SRI.N.MANOJ KUMAR SMT.JAYASREE MANOJ RESPONDENT(S): ---------------------------- 1. THE COMMISSIONER OF INCOME TAX (CENTRAL), OFFICE OF THE COMMISSIONER OF INCOME TAX, I.S. PRESS ROAD, ERNAKULAM - 682 018. 2. THE TAX RECOVER OFFICER, RANGE - 1, ERNAKULAM - 682 011. 3. THE VILLAGE OFFICER, NEDUMBASSERY VILLAGE, ALUVA -683 585. R1 & R2 BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX R3 BY GOVERNMENT PLEADER SRI.V.K.RAFEEK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WP(C).No. 8427 of 2014 (C) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : --------------------------------------- EXHIBIT-P1-TRUE COPY OF THE SALE DEED NO. 235/02 OF THE SUBREGISTRAR OFFICE, CHENGAMANAD. EXHIBIT-P2-TRUE COPY OF THE SKETCH SHOWING THE NATURE AND LYE OFPROPERTIES IN RE-SURVEY NO.188 OF NEDUMBASSERY VILLAGE. EXHIBIT-P3-TRUE COPY OF THE POSSESSION CERTIFICATE DATED 14/03/2014ISSUED BY THE VILLAGE OFFICER, NEDUMBASSERY. EXHIBIT-P4-TRUE COPY OF BASIC TAX RECEIPT DATED 24/03/2013. EXHIBIT-P5-TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 12/03/2014. EXHIBIT-P6-TRUE COPY OF PROCLAMATION OF SALE DATED 21/02/2014 ISSUEDBY THE 2ND RESPONDENT. EXHIBIT-P7-TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 22/03/2014. RESPONDENT(S)' EXHIBITS: ----------------------------------------- N I L /TRUE COPY/ P.S.TO JUDGE Kss P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C)No.8427 OF 2014 ......................................................................... Dated this the 27[th] March, 2014 J U D G M E N T The attempt of the respondents to proceed against theproperty of the petitioner covered by Ext.P1 sale deed inconnection with the arrears to be cleared by a third person isunder challenge in this writ petition. 2. The sequence of events as narrated in the writ petitionshows that the petitioner had purchased an extent of 2.172cents of property in Sy.No.870/1 (Re.Sy.No.188/10), BlockNo.10 of Nedumbassery Village as per Ext.P1 sale deed fromone Gray Kyprambadan in the year 2002. The seller had a totalextent of nearly 80 cents and the remaining extent was soldsubsequently in the year 2006 to another person by name MartinSitadel. The said person by name Martin Sitadel had some taxarrears to be paid to the Income Tax Department and hence theproperty belonging to him was sought to be attached and sold byway of appropriate proceedings . In the course of further steps,the sale proclamation was issued as per Ext.P6 wherein, theproperty of the petitioner covered by Ext.P1 is also included tobe sold in auction, which made the petitioner to approach this W.P.(C)No.8427 OF 2014 Court since the attempt made by the petitioner to explain theposition before the concerned respondent did not turn to befruitful. 3. The learned Counsel for the petitioner submits that, afterpurchase of the property as per Ext.P1 sale deed, the petitionerobtained mutation in his name. Ext.P2 is the sketch, Ext.P3 is thePossession Certificate, Ext.P4 is the basic tax receipt and Ext.P5is the Encumbrance Certificate and the petitioner was enjoyingthe property on the basis of the above documents to theexclusion of all others, with absolute ownership, possession andclear and marketable title. W.P.(C)No.8427 OF 2014 Court since the attempt made by the petitioner to explain theposition before the concerned respondent did not turn to befruitful. 3. The learned Counsel for the petitioner submits that, afterpurchase of the property as per Ext.P1 sale deed, the petitionerobtained mutation in his name. Ext.P2 is the sketch, Ext.P3 is thePossession Certificate, Ext.P4 is the basic tax receipt and Ext.P5is the Encumbrance Certificate and the petitioner was enjoyingthe property on the basis of the above documents to theexclusion of all others, with absolute ownership, possession andclear and marketable title. 4. Heard the learned Government Pleader and the learnedStanding Counsel for the Income Tax Department. 5. There is no dispute that the petitioner is not anassessee nor is he indebted to the Income Tax Department. Theproceedings are only against the defaulter, who purchased theproperty from the very same vendor, who conveyed anotherextent of property to the petitioner vide Ext.P1 much ago. Theproperty purchased by the subsequent purchaser in the year W.P.(C)No.8427 OF 2014 2006 could only be the remaining property after the purchaseeffected by the petitioner in the year 2002. As such, it is alwaysopen for the concerned respondents to proceed against the saidextent, without touching the property owned, possessed andenjoyed by the petitioner vide Ext.P1. 6. The learned Standing Counsel appearing for therespondents submits that, under similar circumstance anotherperson had put up a claim before the second respondent/TaxOfficer, Range-I, and the same was considered and theconcerned property was excluded from the available extent underattachment . 7. In the said circumstance, the petitioner is set at liberty to approach the second respondent/Tax Officer, Range-I, byfiling a proper application(stay petition) in this regard, alsoproducing copies of the relevant documents within 'two weeks'from the date of receipt of a copy of the judgment, upon which,the same shall be considered and appropriate orders shall bepassed, of course, after giving an opportunity of hearing to thepetitioner for appropriate remedial measures. Confirmation of W.P.(C)No.8427 OF 2014 sale scheduled tomorrow shall be subject to final orders to bepassed by the second respondent as above. The writ petition isdisposed of. P.R.RAMACHANDRA MENONJUDGE lk