P.P.OUSEPH V. COMMISSIONER OF INCOME TAX

WP(C)/8427/2014

AI Insights

The case involves a writ petition filed by P.P. Ouseph challenging the inclusion of his property in a sale proclamation issued by the Tax Recover Officer to recover tax arrears from a third party, Martin Sitadel, who had purchased a portion of the property from the same vendor. The petitioner argued that his property, purchased in 2002, was wrongfully included in the proceedings against Martin Sitadel, who had tax arrears. The court found that the petitioner was not an assessee nor indebted to the Income Tax Department and that the proceedings should only target the property owned by Martin Sitadel. The court allowed the petitioner to file a stay petition with the Tax Officer to exclude his property from the sale.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755783 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-03-2014
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; V K RAF EEK
• Assessee Lawyers: N KUMAR; JAYASREE MANOJ
• Keywords: Encumbrance certificate; Income Tax Arrears; Mutation; Property Attachment; Sale proclamation; Writ petition

Judgement Text

"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 SUB REGISTRAR OFFICE, CHENGAMANAD. EXHIBIT-P2-TRUE COPY OF THE SKETCH SHOWING THE NATURE AND LYE OF PROPERTIES IN RE-SURVEY NO.188 OF NEDUMBASSERY VILLAGE. EXHIBIT-P3-TRUE COPY OF THE POSSESSION CERTIFICATE DATED 14/03/2014 ISSUED 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 ISSUED BY 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 27th March, 2014 J U D G M E N T The attempt of the respondents to proceed against the property of the petitioner covered by Ext.P1 sale deed in connection with the arrears to be cleared by a third person is under challenge in this writ petition. 2. The sequence of events as narrated in the writ petition shows that the petitioner had purchased an extent of 2.172 cents of property in Sy.No.870/1 (Re.Sy.No.188/10), Block No.10 of Nedumbassery Village as per Ext.P1 sale deed from one Gray Kyprambadan in the year 2002. The seller had a total extent of nearly 80 cents and the remaining extent was sold subsequently in the year 2006 to another person by name Martin Sitadel. The said person by name Martin Sitadel had some tax arrears to be paid to the Income Tax Department and hence the property belonging to him was sought to be attached and sold by way of appropriate proceedings . In the course of further steps, the sale proclamation was issued as per Ext.P6 wherein, the property of the petitioner covered by Ext.P1 is also included to be sold in auction, which made the petitioner to approach this W.P.(C)No.8427 OF 2014 2 Court since the attempt made by the petitioner to explain the position before the concerned respondent did not turn to be fruitful. 3. The learned Counsel for the petitioner submits that, after purchase of the property as per Ext.P1 sale deed, the petitioner obtained mutation in his name. Ext.P2 is the sketch, Ext.P3 is the Possession Certificate, Ext.P4 is the basic tax receipt and Ext.P5 is the Encumbrance Certificate and the petitioner was enjoying the property on the basis of the above documents to the exclusion of all others, with absolute ownership, possession and clear and marketable title. 4. Heard the learned Government Pleader and the learned Standing Counsel for the Income Tax Department. 5. There is no dispute that the petitioner is not an assessee nor is he indebted to the Income Tax Department. The proceedings are only against the defaulter, who purchased the property from the very same vendor, who conveyed another extent of property to the petitioner vide Ext.P1 much ago. The property purchased by the subsequent purchaser in the year W.P.(C)No.8427 OF 2014 3 2006 could only be the remaining property after the purchase effected by the petitioner in the year 2002. As such, it is always open for the concerned respondents to proceed against the said extent, without touching the property owned, possessed and enjoyed by the petitioner vide Ext.P1. 6. The learned Standing Counsel appearing for the respondents submits that, under similar circumstance another person had put up a claim before the second respondent/Tax Officer, Range-I, and the same was considered and the concerned property was excluded from the available extent under attachment . 7. In the said circumstance, the petitioner is set at liberty to approach the second respondent/Tax Officer, Range-I, by filing a proper application(stay petition) in this regard, also producing 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 be passed, of course, after giving an opportunity of hearing to the petitioner for appropriate remedial measures. Confirmation of W.P.(C)No.8427 OF 2014 4 sale scheduled tomorrow shall be subject to final orders to be passed by the second respondent as above. The writ petition is disposed of. P.R.RAMACHANDRA MENON JUDGE lk "