Case: Income Tax Officer, Raichur Vs. Dandi Mohamad Hussain and Others

GOVINDA BRAT J. 1. This writ petition is directed against the order of the Mysore Revenue Appellate Tribunal dated 4th October, 1966, made in Revision No. 281 of 1965 (H.L.R.) by which the Tribunal, while allowing the revision petition, cancelled the attachment and sale proclamation of the properties belonging to the 1st respondent, Dandi Mohamad Hussain The matter arises in this way 2. The 1st respondent filed a revision petition before the Mysore Revenue Appellate Tribunal, Bangalore, alleging that his properties were attached for recovery of arrears of income-tax due not from him but from one Dandi Mohammad Ismail and that the 1st respondent is not the defaulter under section 46 of the Indian Income-tax Act, 1922. It is common ground that the properties of the list respondent, Dandi Mohamad Hussain, were attached by the Tahsildar of Raichur, pursuant to a certificate issued by the Income-tax Officer under section 46 of the Income-tax Act, 1922, on January 8, 1963. The 1st respondent whose properties were attached did not file any claim petition before the Collector ; but he filed a revision petition before the Mysore Revenue Appellate Tribunal alleging that he is not the assessee to income-tax nor a defaulter and that his properties were unlawfully attached and brought to sale by the revenue authorities. On the said petition, the Revenue Appellate Tribunal set aside the attachment of the properties of the 1st respondent holding that the 1st respondent is not the assessee and he is not a defaulter. At the hearing before the Tribunal, the Income-tax Officer was set ex parte and, therefore, a review petition was unsuccessfully filed and it was rejected on the ground that there was no error apparent on the face of the record 3. In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indian Income-tax Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or the income-tax department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v. Income-tax Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966

Decision reasoning: 1[ds]In our opinion, this writ petition has to succeed. The revision petition filed by the 1st respondent before the Mysore Revenue Appellate Tribunal, in our opinion, was wholly misconceived. If it was the case of the 1st respondent that he was not a defaulter under the Indianx Act, 1922, and that his properties were attached and brought to sale for recovery of tax due from some other persons, his remedy was to file a claim petition before the Collector under Order 21, rule 58, of the Code of Civil Procedure. Such a claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a court would be bound to dispose of a claim in the course of execution of a decree. It would also follow that the unsuccessful party, the claimant or thex department, as the case may be, will have the right to file a suit to establish the right claimed by either : vide C. Dhanalakshmi Ammal v.x Officer, Madras. Without preferring a claim petition before the Collector, the 1st respondent has approached the Revenue Appellate Tribunal to deal with his claim, and the Revenue Appellate Tribunal has usurped the jurisdiction of the Collector to enquire into a claim petition. The entire proceedings before the Mysore Revenue Appellate Tribunal were clearly without jurisdiction and accordingly we quash the order made in Revision Petition No. 281 of 1965 (H.L.R.) dated 4th October, 1966