C.K.SAYED AHAMMED V. JOINT COMMISSIONER

WP(C)/24201/2014

AI Insights

The case involves a writ petition filed by C.K. Sayed Ahammed and others challenging an order of attachment of immovable property under Rule 48 of the Second Schedule to the Income Tax Act, 1961. The petitioners, claiming to be bonafide purchasers of the property, argued that a previous attachment had been lifted by the court. The court found that the petitioner had a statutory remedy and directed them to file a claim with the Tax Recovery Officer. Additionally, the court addressed the issue of property mutation and transfer of registry, instructing the relevant authority to proceed with the transfer while acknowledging the creditor's rights.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 727014 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-10-2014
• Assessment Year: misc
• Laws Referred To: Income - Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; JOSEPH GEORGE
• Assessee Lawyers: P M M KHAN
• Keywords: Attachment of immovable property; Bonafide purchaser; Tax Recovery Officer; Lifting the attachment; Mutation not effected; Transfer of registry
• Section: 48

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 17TH DAY OF OCTOBER 2014/25TH ASWINA, 1936 WP(C).No. 24201 of 2014 (A) ---------------------------- PETITIONER(S): ----------- 1. C.K.SAYED AHAMMED AGED 52 YEARS S/O. P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 2. P.M.KHANKUTTY AGED 79 YEARS S/O.KUNJUPPILLAI, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 3. DR.C.K.ABDUL SALAM AGED 55 YEARS S/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 4. C.J.ABDUL AZEES AGED 55 YEARS S/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 5. AYSHA MOL, AGED 33 YEARS D/O. P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 6. SANIF KHAN AGED 24 YEARS S/O. P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 7. T.P.M.ABDULLA KHAN AGED 65 YEARS S/O. PAREETH BAVA KHAN, PUTHENVEETTIL, ERATTUPETTA KOTTAYAM DISTRICT. 8. P.A.MUHAMMED KHAN AGED 40 YEARS PUTHENVEETTIL, ERATTUPETTA, KOTTAYAM DISTRICT. 9. LAILA BEEGAM AGED 49 YEARS D/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 10. NASEEMA BEEVI AGED 47 YEARS S/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 11. SOFY S/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 12. KHURSHID BEEGAM AGED 44 YEARS S/O.P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. 13. FATHIMA BEEVI AGED 73 YEARS W/O. P.M.KHANKUTTY, CHERUKARAYIL HOUSE, KANJIRAPPILLY KOTTAYAM DISTRICT. (PETITIONERS 2 TO 13 ARE REPRESENTED BY ITS POWER OF ATTORNEY HOLDER 1ST PETITIONER) BY ADV. SRI.P.M.M.NAJEEB KHAN RESPONDENT(S): -------------- 1. JOINT COMMISSIONER OF INCOME TAX RANGE - I, C.R.BUILDINGS, IS PRESS ROAD KOCHI - 18, ERNAKULAM. 2. THE SUB REGISTRAR MATTANCHERRY, KOCHI. 3. THE VILLAGE OFFICER THOPPUMPADY VILLAGE, KOCHI. 4. SHRI.ABDUL AZEES,, AGED 49 YEARS S/O.ABDULLA, DOOR NO. 8/1302, PALLIYARKKAVU ROAD COCHIN - 683 002. R2 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX BY GOVERNMENT PLEADERSRI.JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24201 of 2014 (A) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS -------------------- P1 - THE PHOTOCOPY OF THE SALE DEED NO. 4446/05 DT. 03//9/05 EXECUTED BY THE 5TH RESPONDENT IN FAV OUR OF 1ST PETITIONER. P1(A) - THE PHOTOCOPY OF THE SALE DEED NO. 4440/05 DT. 03.9.05 EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF THE PETITIONERS 2, 4 AND 5. P1(B)- THE PHOTOCOPY OF THE SALE DEED NO. 4439/05, DT. 03.9.05 EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF 3RD PETITIONER. P1(C) - THE PHOTOCOPY OF THE SALE DEED NO. 4441/05 DT. 03.9.05 EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF 6TH PETITIONER IS PRODUCED. P1(D) - THE PHOTOCOPY OF THE SALE DEED NO. 4442/05 DT. 03/9/05 EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF 8TH PETITIONER. P1(F) - THE PHOTOCOPY OF THE SALE DEED NO. 4443/05, DT. 03.09.05 EXECUTED BY THE 5TH RESPONDENT IN FA VOUR OF 9TH PETITIONER IS PRODUCED HEREWITH AND MARKED P1 (G) - THE PHOTOCOPY OF THE SALE DEED NO. 4445/05 DT. 03.09.05 EXECUTED BY THE 5TH RESPONDENT IN FA VOUR OF THE PETITIONERS 10, 11 AND 12. P1(H)- THE PHOTOCOPY OF THE SALE DEED NO. 4447/05 DT. 03.9.05 EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF THE PETITIONERS 13, 14 AND 15. P2 - THE SAID ENCUMBRANCE CERTIFICATE NO. 12370 DT. 31.8.05 ISSUED BY THE 2ND RESPONDENT. WP(C).No. 24201 of 2014 (A) ---------------------------- P3 - THE OWNERSHIP CERTIFICATE NO. WZR 3/2166/14 DT. 22.4.14 ISSUED BY THE CORPORATION OF COCHIN AUTHORITIES IN THE NAME OF THE PETITIONERS. P4 - THE PHOTOCOP YOFTHE SAID ENCUMBRANCE CERTIFICATE NO. 8817/14 DT. 21.4.14 ISSUED BY THE 2ND RESPONDENT IN FA VOUR OF THE PETITIONERS. P5 - THE PHTOTOCOPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT NO. TR 17/07/08 DT. 11.2.2009 FORWA RDED BY THE FIRST RESPONDENT TO THE 2ND RESPONDENT. P6 - THE PHOTOCOPY OF THE SAID REPRESENTATION DT. 01.6.14 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P7 - THE PHOTOCOPY OF THE SAID REPRESENTATION DT. 01.6.14 SUBMITTED BY THE PETITIONERS BEFORE THE FIRST RESPONDENT. A.MUHAMED MUSTAQUE, J. .................................................... W.P.C. No. 24201 of 2014 ......................................................... Dated this the 17th day of October, 2014. J U D G M E N T Petitioner has approached this Court challenging Ext. P5 order of attachment of immovable property issued under Rule 48 of Second Schedule to the Income - Tax Act, 1961. Petitioner submits that he is a bonafide purchaser of the property mentioned in Ext. P5 attachment schedule. Petitioner further submits that the attachment earlier effected in this property has been lifted as per an order of this Court. 2. I am of the view that the petitioner has a statutory remedy. He can raise his claim for lifting the attachment before the Tax Recovery Officer who issued Ext. P5 order under the relevant provisions. Therefore, the petitioner shall make a claim to lift the attachment W.P.C. No. 26147 of 2014 ..2.. before the Recovery Officer, Range-I, Ernakulam within four weeks from today. On receipt of the claim of the petitioner who claims as a bonafide purchaser, the Recovery Officer, after affording an opportunity to the petitioner, shall pass appropriate orders within a further period of four weeks. This Writ Petition is disposed of as above. Petitioner also submits that mutation has not been effected on account of the attachment. The attachment initiated against the property is not a bar in transfer of registry. Creditors right will not be lost by effecting transfer of registry. Transfer of registry, therefore, will be subject to any right available to the creditor to proceed against the property. Therefore, the 3rd respondent shall effect transfer registry in respect of the said property within a period of two weeks. This Writ Petition is disposed of as above. Dated this the 17th day of October, 2014. Sd/- A.MUHAMED MUSTAQUE, (Judge) ani/ /tr u e co p y / P.S. To Ju d g e "