Anil Kumar Sharma vs The Tax Recovery Officer
2022 Latest Caselaw 7158 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
         THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                         WP(C) NO. 19968 OF 2019
PETITIONER:

              ANIL KUMAR SHARMA,
              AGED 43 YEARS, S/O.O.P.SHARMA,
              8/2117 A, SHARMA NIKETHAN, MATTANCHERRY VILLAGE,
              MATTANCHERRY, ERNAKULAM-682001.

              BY ADVS.
              NAVEEN THOMAS
              V.P.NARAYANAN
              NISHA JOHN


RESPONDENTS:

     1        THE TAX RECOVERY OFFICER,
              RANGE 1, ERNAKULAM, C.R.BUILDING, I.S.PRESS ROAD, COCHIN,
              ERNAKULAM-682018.

     2        DEPUTY COMMISSIONER OF INCOME TAX,
              CENTRAL CIRCLE-1, ERNAKULAM, C.R.BUILDING, I.S.PRESS ROAD,
              COCHIN, ERNAKULAM-682018.

     3        INCOME TAX APPELLATE TRIBUNAL,
              REPRESENTED BY THE REGISTRAR, COCHIN BENCH,
              COCHIN-682037.

     4        SUB REGISTRAR, MARADU SUB REGISTRY,
              MARADU JUNCTION, ERNAKULAM-682304.

     5        SUB REGISTRAR, ERNAKULAM SUB REGISTRY,
              ERNAKULAM-682011.

     6        VILLAGE OFFICER, MARADU VILLAGE,
              MARADU, ERNAKULAM-682040.

     7        VILLAGE OFFICER, MULAVUKADU VILLAGE,
              KOCHI, ERNAKULAM-682504.
OTHER PRESENT:

              SRI. JOSE JOSEPH (SC)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION          ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 19968 OF 2019          2



                          JUDGMENT

The petitioner has approached this Court being

aggrieved by attachments effected in respect of the

petitioner's properties for recovery of Income Tax

arrears.

2. The learned counsel appearing for the

petitioner points out that at a time when the initial

attachment was effected there was no demand as the

assessment orders giving rise to the demand had

already been set aside by the I st Appellate authority. It

is submitted that at that point of time the petitioner

could not be treated as an assessee in default and

proceedings for attachment under the 2nd schedule to

the Income Tax Act could not have been made.

3. The learned Standing Counsel appearing for

the department would submit that the orders of the Ist

Appellate authority in favour of the petitioner were

challenged before the Income Tax Appellate Tribunal

and by Ext.P10 order, the Income Tax Appellate

Tribunal had remanded the matter to the assessing

authority for a fresh consideration. It is submitted that

the assessing officer has thereafter given effect to the

orders of the Income Tax Appellate Tribunal and now

the demand against the petitioner is approximately

Rs.5.77 crores (excluding interest etc.). It is submitted

that the attachment was made to protect the interest of

revenue and even on the petitioner's own showing

attachment over one item of property has been lifted by

the department. He refers to the affidavit filed in

support of I.A.No.1 of 2022. It is pointed that the

attachment over an item of property in Mulavukad was

lifted by the department (see Ext.P17).

4. The learned counsel appearing for the

petitioner submits that the petitioner had filed

miscellaneous applications before the Income Tax

Appellate Tribunal for rectification and those

applications are still pending consideration before the

Income Tax Appellate Tribunal. It is submitted that

apart from the property at Mulavukad the petitioner has

certain item of property at Maradu which is mortgaged

to a financial institution. It is submitted that the

property at Mualavukad is valued at approximately

Rs.8.14 Crores as per Ext.20 valuation certificate and

the petitioner will have no objection if the attachment is

continued in respect of that property while releasing the

property situated in Maradu. The learned counsel also

points out the provisions of second proviso to Rule 3 of

the second Schedule to the Income Tax Act which

provides that the attachment can be lifted if sufficient

securities are provided. It is submitted that going by

the Rule 52 of the Second Schedule, even in respect of

properties under attachment only such portion of the

property as may be necessary to satisfy the certificate

needs to be sold. It is pointed out that excessive

attachment cannot be made. It is also pointed out that

the petitioner has already approached the Tax recovery

officer through Ext.P19 (produced along with I.A.No.1 of

2022) seeking the lifting of attachment in respect of the

property belonging to the petitioner at Maradu while

continuing the attachment on the Mulavukad property.

5. Having heard the learned counsel for the

petitioner and the learned Standing Counsel for the

respondent department, I am of the opinion that this

Writ Petition can be disposed of directing the 1 st

respondent to consider and pass orders on Ext.P19, also

keeping in mind the provisions of Rule 3 of the second

schedule to the Income Tax Act and after affording an

opportunity of hearing to the petitioner. Considering

the urgency expressed by the learned counsel for the

petitioner, the Tax Recovery Officer shall endeavour to

pass orders on Ext.P19 within a period of one month

from the date of receipt of a certified copy of this

judgment.

Sd/-

GOPINATH P.

JUDGE

ats

APPENDIX OF WP(C) 19968/2019

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.12.2010 FOR THE ASSESSMENT YEAR 2007-08 PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, ERNAKULAM.

EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2010 FOR THE ASSESSMENT YEAR 2008-09 PASSED BY THE SECOND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ASSESSMENT DATED 29.12.2010 FOR THE YEAR 2009-10 PASSED BY THE SECOND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E242/CIT(A)-1/1011.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E243/CIT(A)-1/1011.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E244/CIT(A)-1/1011.

EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.62,96,751/-.

EXHIBIT P8 TRUE COPIES OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.5,18,83,881/-.

EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.1,00,01,184/-.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 1.8.2016 IN ITA NOS.252-254/COCH/2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, KOCHI ORDER DATED 1.8.2016 IN ITA NOS.252-254/COCH/2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, KOCHI.

EXHIBIT P11 TRUE COPY OF THE ORDER OF ATTACHMENT ISSUED TO THE PETITIONER FOR HIS PROPERTIES IN MULAVUKAD VILLAGE, DATED 18.10.2016.

EXHIBIT P12 TRUE COPY OF THE ORDER OF ATTACHMENT DATED 24.10.2016 FOR HIS PROPERTIES IN MARADU VILLAGE.

EXHIBIT P13 TRUE COPY OF THE MISCELLANEOUS PETITION PREFERRED BY THE PETITIONER BEFORE THE ITAT. COCHIN.

EXHIBIT P14 TRUE COPY OF THE ORDER DATED 27.11.2018 IN W.P.(C) NO.33772 OF 2018 PASSED BY THIS HON'BLE COURT.

EXHIBIT P15 TRUE COPY OF THE REQUEST DATED 31/10/2016 MADE BY PETITIONER TO THE RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE REQUEST LETTER DATED 20/12/2021.

EXHIBIT P17 TRUE COPY OF THE ORDER DATED 3/12/2018 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P18 TRUE COPY OF THE REQUEST LETTER DATED 04/04/2022.

EXHIBIT P19 TRUE COPY OF THE REQUEST DATED 8/4/2022.

EXHIBIT P20 TRUE COPY OF THE VALUATION REPORT DATED 6/4/2022, PREPARED BY THE GOVERNMENT APPROVED VALUER.

EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 19/5/2022 IN WPC NO.10797/2022