Gopal Krishan Basisht V. The Tax Recovery Officer and another

CWP/97/1994

AI Insights

The case involves Gopal Krishan Basisht, the petitioner, who sought to quash an order attaching rent from immovable property owned by him, which was allegedly wrongfully attached due to a tax demand related to a former partner of his firm, M/s Gopal Iron and Steel Works. The respondents argued that the attachment was valid and contested the petitioner's claims of exclusive ownership, citing a compromise decree and a gift deed to his wife. The court found that resolving the issues would require adjudication of disputed facts, which is not suitable for a writ petition under Article 226 of the Constitution.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 804948 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 07-11-2013
• Assessment Year: misc
• Other Referred Cases: Ramesh Chander Basisht v. Gopal Krishan Basisht and others
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SAVITA SAXENA; ASHOK AGGARWAL
• Assessee Lawyers: AKSHAY BHAN; ALOK MITTAL
• Keywords: Civil Suit; Disputed questions of fact; Immovable Property; Tax Recovery; Writ quashing; Attachment of rent
• Section: 32

Judgement Text

"CWP No.97 of 1994 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.97 of 1994 Date of decision: November 07, 2013. Gopal Krishan Basisht ... Petitioner v. The Tax Recovery Officer and another ... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON Present: S/Shri Akshay Bhan and Alok Mittal, Advocates, for the petitioner. Ms. Savita Saxena, Advocate for respondent No.1. Shri Ashok Aggarwal, Advocate for respondent No.2. Rajive Bhalla , J. (Oral): The petitioner prays for issuance of a writ quashing the order attaching rent of immovable property, belonging to the petitioner. Counsel for the petitioner submits that the revenue has attached rent accruing from property belonging to M/s Gopal Iron and Steel Works. The petitioner is the sole proprietor of M/s Gopal Iron and Steel Works, pursuant to a compromise decree passed in Regular Second Appeal No.528 of 1978 (Ramesh Chander Basisht v. Gopal Krishan Basisht and others), Annexure P-7. The attachment order has been wrongly passed against the firm as demand of tax relates to the personal assessment of Raj Kumar Basisht as erstwhile partner of the firm. In support of the aforesaid argument, the petitioner relies upon order dated 19.10.1989 passed by the Kadyan Vinod Kumar 2013.11.22 13:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.97 of 1994 -: 2 :- Tax Recovery Officer, Patiala under Rule 32 of the 2nd Schedule of the Income Tax Act, 1961, to contend that the defaulter is recorded as Shri Raj Kumar Basisht HUF and as the HUF is not a partner of the firm, the impugned demand is, therefore, illegal and void and may, therefore, be quashed. Counsel for the revenue as well as the private respondents, added later, submit that the writ petition should be dismissed as it involves adjudication of disputed questions of fact relating to the constitution of the firm, ownership of the property, validity of the decree and the nature of the tax which has led to the attachment notice. It is also contended by counsel appearing for Shri R.K. Basisht that the decree pressed into service is null and void as all shareholders were not impleaded as parties. The petitioner, therefore, cannot possibly allege that the property belongs to him exclusively nor can he seek quashing of the impugned notices. It is further contended that the writ petition has been filed by the petitioner alleging his ownership whereas, on the other hand, the petitioner alleges that the property is owned by his wife, pursuant to a registered gift deed and she has constructed 10 shops. The petitioner may, therefore, be relegated to filing a civil suit to establish his title. We have heard counsel for the parties and perused the record. The petitioner's claim as to exclusive ownership of the attached property is based upon a compromise decree. The petitioner also alleges that his wife is owner of the land pursuant to a gift deed and that she has constructed the shops, rent whereof has been attached. The respondents allege that the decree is not binding as all co-sharers were not impleaded as parties. Apart Kadyan Vinod Kumar 2013.11.22 13:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.97 of 1994 -: 3 :- from the legality of the decree and ownership of the property, adjudication of this petition would involve consideration of the status of Raj Kumar Basisht and his HUF, constitution of the firm on the relevant date and liability of its partners, and other disputed questions of fact which would necessarily require parties to lead evidence. We are not inclined, in exercise of power under Article 226 of the Constitution, to determine these disputed questions of fact. The petitioner's prayer for quashing of the attachment is so intrinsically linked to answers to these disputed questions as to be inseparable. The petitioner would, therefore, be required to seek his remedy by approaching a civil court for declaration of his title. In view of what we have recorded herein-above, the writ petition is dismissed with liberty to the petitioner to seek his remedy in accordance with law. [ Rajive Bhalla ] Judge [Dr. Bharat Bhushan Parsoon] November 07, 2013. Judge kadyan Kadyan Vinod Kumar 2013.11.22 13:01 I attest to the accuracy and integrity of this document Chandigarh "