PRITILATA PANDA V. COMMNR.INCOME TAX

WP(C)/24866/2014

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The case involves Pritilata Panda, the petitioner, who has been residing in a property since 1982, originally owned by Govindram Agrawal. The Income Tax Department issued notices for the petitioner to vacate the property due to arrears of income tax dues from Agrawal, who was the original owner and had allegedly not transferred the property legally to the petitioner. The petitioner contested these actions through multiple writ petitions and civil suits, arguing her peaceful and long-term possession of the property and the legal transfer of ownership. The court's decision focused on the procedural impropriety of the Income Tax Department in issuing eviction notices while a civil suit was pending, which could potentially resolve the ownership and possession issues.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 671918 (HC-ORISSA)
• Appeal Type: Others
• Pronouncement Date: 04-04-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, Registration Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: S PATTNAIK
• Keywords: Adverse possession; Civil Suit; Coercive Action; Income Tax; Interim order; Quash; Writ petition
• Section: 11; 17(1); 151

Judgement Text

" Page 1 of 7 -IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 24866 of 2014 Pritilata Panda ….. Petitioner Mr. S. Pattnaik, Advocate Vs. Commissioner, Income Tax, Sambalpur and another ….. Opposite Parties Mr. S.C. Mohanty, Sr. S.C, IT Department CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY ORDER 04.04.2024 Order No. 08. This matter is taken up by hybrid mode. 2. Heard Mr. S. Pattnaik, learned counsel appearing for the petitioner and Mr. S.C. Mohanty, learned Sr. Standing Counsel appearing for the opposite party-Income Tax Department. 3. The petitioner has filed this writ petition seeking to quash letter no.6047 dated 11.12.2014 under Annexure-6 as well as letter no.3221 dated 15.12.2014 under Annexure-10 issued by opposite party no.2 and further to issue direction to the opposite parties not to take any action against the petitioner regarding vacation of house in question wherein the petitioner is residing and a civil suit is pending. 4. Mr. S. Pattnaik, learned counsel appearing for the petitioner contended that the petitioner is a senior citizen lady and she has also been peaceful possession over the schedule land since 1982. One Govindram Agrawal, who was the owner of the schedule property, had purchased the said property from one Dinabandhu Nayak by Registered Sale Deed No.899 dated 09.05.1977. Thereafter, he sold the property to the petitioner by receiving total consideration of Rs.42,000/- on 20.09.1982 in respect of Ac.0.05 dec. of land and since then the Page 2 of 7 possession of the property has been delivered to the petitioner. But, opposite party no.2, vide Annexures-6 and 10 dated 11.12.2014 and 15.12.2014 respectively intimated the petitioner to vacate the house of Late Govindram Agrawal in which she has been residing. Therefore, the petitioner has approached this Court by filing this writ petition. 5. Mr. S.C. Mohanty, learned Sr. Standing Counsel appearing for the opposite party-Income Tax Department seeks time to file counter affidavit. 6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that the petitioner has filed this writ petition on 17.12.2014 and this Court passed interim order on 24.12.2014 in Misc. Case No.22251 of 2014 directing that the petitioner shall not be dispossessed from the property in question till the next date. Thereafter, though the matter was listed several times at the instance of opposite parties for filing of counter affidavit and the interim order has been extended from time to time, no counter affidavit has been filed by the opposite parties. When the matter was listed today, i.e. 04.04.2024, again learned Senior Standing Counsel appearing for the opposite parties sought time for filing counter affidavit. Since the writ petition is of the year 2014, this Court is not inclined to grant further adjournment and proceed with the matter on the basis of the pleadings made in the writ petition. 7. As it appears, while the petitioner was in peaceful possession over the property, for the first time opposite party no.2 had issued show cause notice to the petitioner vide letter No. 6487 dated 06.03.2013 under Rule 11 of Second Schedule of the Income Tax Act alleging that the said property has been attached on 07.10.86 due to arrear income tax dues of Govindram Agrawal. Therefore, the petitioner was called upon to file documents in respect of the same, otherwise the property will be put under public auction. So, the petitioner approached this Court by filing W.P.(C) No. 7576/2013 challenging the said notice on Page 3 of 7 the ground that on the date of alleged attachment i.e. 07.10.86, the defaulter (Govindram Agrawal who was the vendor of petitioner) was not in possession of the schedule property, as he had already sold and delivered possession of the same to the petitioner on 20.09.1982. This Court, vide order dated 25.04.2013, disposed of the said writ petition directing opposite party no.2 to investigate into the claim or objection of the petitioner as per Rule 11 of the Second Schedule of the Income Tax Act. 8. Though opposite party no.2 received the order of this Court, he neither investigated the matter nor called upon the petitioner to participate in such proceeding and sat over the matter for more than one year. But, O.P No. 2 issued an order vide letter No. 774 dated 11.06.2014 rejecting the prayer of the petitioner with a direction to vacate the house within one month. Though, the order was passed on 11.6.2014, it has been alleged that opposite party no.2 called upon both the parties, wherein said Govindram Agrawal already died since 20.04.2014. Opposite party no.2 has not disputed the possession of the petitioner since 20.09.1982, but illegally held that the property has not been registered in favour of petitioner under section 17 (1) of the Registration Act to effect the transfer of property. So, he has further held that the property belongs to Govindram Agrawal and the attachment cannot be withdrawn. 9. Rule 11 (4) of the Seconded Schedule of the Income Tax Act emphasizes that if the defaulter was not in possession on the date of attachment, the T.R.O shall make an order releasing the property from attachment or sale, for which this Court specifically directed to investigate the matter. After passing such order, opposite party no.2 published notice in daily Samaj to vacate the house within one month hence. Aggrieved by such order and notice, the petitioner again approached this Court by filing W.P.(C) No. 15018/2014 with a prayer to quash the letter under Annexure-4. This Court, vide order dated Page 4 of 7 14.8.2014 passed interim order directing that no coercive action shall be taken to dispossess the petitioner in question and posted the case to 18.08.2014. Thereafter, on 18.8.2014 the interim order dated 14.8.2014 was extended. 10. While the interim order was in force, opposite party no.2 forcibly evicted to the petitioner and locked the house on 18.08.2014. So, on 20.08.2014 the said fact was brought to the notice of this Court and after hearing, this Court viewed seriously and initiated Suo Motu contempt proceeding vide CONTC (Suo-Motu) No. 862/2014 against opposite party no.2 and in the said case opposite party no.2 appeared in person and filed affidavit stating that the possession of the suit house has been delivered to the petitioner and begged apology for his conduct. Considering his unconditional apology, this Court, vide order dated 09.09.2014 dropped the contempt proceeding against opposite party no.2. 11. During pendency of WP (C) No. 15018/2014, this Court, vide order dated 22.09.2014 in Misc. Case No. 13373/2014, continued the interim order till disposal of the writ petition. The petitioner also filed a Civil Suit No. 506/2014 before the learned Civil Judge (Sr. Division), Sambalpur claiming right, title, interest and possession over the suit property by way of adverse possession and she relied upon the provision under Rule 11 (6) of the Second Schedule of the Income Tax Act to establish her right over the property in question. Along with the Civil Suit, the petitioner also filed I.A No. 36/2014 under Order 39 Rule 1 & 2 praying temporary injunction in respect of the suit property. Thereafter, she withdrew the writ petition with liberty to pursue the matter in the Civil Suit. Accordingly, this Court allowed the prayer, vide order dated 10.11.2014 granting liberty to the petitioner to proceed with the matter before the Civil Court. 12. Learned Civil Judge (Sr. Division), Sambalpur, vide order dated 20.11.2014 admitted the suit by waiving out the statutory notice under Page 5 of 7 Section 80 (2) C.P.C taking into urgency of the case and issued notice to the opposite parties fixing to 22.12.2014. During pendency of the Civil Suit as well as I.A, opposite party no.2 issued letter No. 4229 dated 24.11.2014 directing the petitioner to vacate the suit house by 03.12.2014 to facilitate the execution of recovery proceeding. Thereafter, the petitioner brought the said letter to the notice of the learned Civil Judge, (Sr.Division), Sambalpur by filing a petition u/s 151 C.P.C on 02.12.2014, on which date the I.A was posted, praying for interim injunction, as opposite party no.2 had already intimated to vacate the suit house by 03.12.2014. Accordingly, learned Civil Judge posted the case to 03.12.2014 for objection and hearing of the petition u/s 151 C.P.C. After conclusion of hearing, the case was posted to 04.12.2014 for orders, on which date the learned Civil Judge rejected the petition filed u/s 151 C.P.C on the ground that there was no urgency to pass any interim injunction pending disposal of this I.A. The learned Civil Judge wrongly observed that no reason is assigned by the petitioner as to how she will suffer irreparable loss which cannot be compensated in terms of money if interim injunction will not be granted pending disposal of the I.A. 13. Aggrieved by such order, the petitioner filed C.M.P No. 1596/2014 before this Court. This Court, vide order dated. 12.12.2014 directed both the petitioner and the opposite parties to take instruction and posted the case to 15.12.2014 and further directed that as an interim measure no coercive action shall be taken against the petitioner in pursuance of the letter dated 24.11.2014. However this Court, vide order dated 15.12.2014 disposed of the said C.M.P directing to the court below to hear I.A No. 36/2014 on 22.12.2014 as the date was fixed and granted status quo as on date in respect of suit property till 22.12.2014. 14. In C.S No. 506/2014 as well as 1.A No. 36/2014, the opposite party, Income Tax Department entered appearance and filed objection Page 6 of 7 to the petition filed u/s 151 C.P.C. But during pendency of the suit as well as L.A, opposite party no.2 again issued letter No. 6047 dated. 11.12.2014 directing the petitioner to vacate the house by the forenoon of 15.12.2014 and hand over the lock and keys of the said house to him. In case the petitioner failed to do so opposite party no.2 will be constrained to take assistance of police personnel to vacate the house in question. The T.R.O further stated vacation of premises in question to enable the department to proceed to realize the Govt. dues through public auction of the land and building being occupied by her. 15. Pursuant to such letter under Annexure-6, the petitioner filed representation stating that at the time of attachment said Govindram Agarwal was not in possession over the schedule land, so the attachment is illegal. Moreover Civil Suit No. 506/2014 has been filed before the Civil Judge (Sr.Division), Sambalpur to establish her right as per the provision under Rule 11 (6) of the 1.T. Act. She further prayed that the schedule house is only her residential house and she is residing more than 30 years and now she was at the age of 65 years old. Hence, the execution proceeding may kindly be stayed till disposal of the civil suit. The said representation was received by the T.R.O on 12.12.2014. She also further represented on 12.12.2014 to T.R.O to intimate the details of arrear dues of Govindram Agarwal and exact outstanding amount, so that she will be able to deposit the same under protest. She also filed an affidavit before the T.R.O on 15.12.2014 (as 13.12.14 & 14.12.14 are holidays) stating that this Court has granted interim order on 12.12.2014 in CMP No. 1596/2014 not to take any coercive action till the next date. In spite of receiving affidavit dated 15.12.14 as well as the representation dated 12.12.14 filed by the petitioner, the T.R.O further directed vide letter No. 3221 in the evening on 15.12.2014 to vacate the house and \"stated it is 4 O'clock in the evening and the time allotted to vacate the same land and building has been elapsed\". So he directed \"to handover the lock and key to the Inspector Surendra Page 7 of 7 Majhi\". The T.R.O also further stated that the details of outstanding dues cannot be given to any third party and it can only be given to the legal heirs of Late Govindram Agarwal. Therefore, the petitioner has approached this Court by filing this writ petition. 16. Since the civil suit is pending before the learned Civil Judge (Sr. Division), Sambalpur and unless the matter is resolved by passing a decree, the authority cannot have taken coercive action against the petitioner. Therefore, the letters dated 11.12.2014 under Annexure-6 and dated 15.12.2014 under Annexure-10 cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed. Accordingly, this Court directed the opposite parties not to issue any coercive order till finalization of C.S. No.506 of 2014 pending before the learned Civil Judge (Sr. Division), Sambalpur. Needless to say, the learned Civil Judge (Sr. Division), Sambalpur may take necessary steps for early disposal of the aforesaid civil suit. 17. With the above observation and direction, the writ petition stands disposed of. Alok (DR. B.R. SARANGI) JUDGE (G. SATAPATHY) JUDGE Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 06-Apr-2024 18:15:45 Signature Not Verified "