Emar Hotels and Investments P. Ltd. Vs. Tax Recovery Officer and ors. - Court Judgment |
| Direct Taxation |
| Mumbai High Court |
| Oct-16-2006 |
| Writ Petition No. 2301 of 2006 |
| H.L. Gokhale and ;J.P. Devadhar, JJ. |
| (2007)210CTR(Bom)482; [2007]288ITR308(Bom) |
| Income Tax Act, 1961 - Sections 220(2) and 226(3); Income Tax Rules - Rule 11(5) and 11(6) |
| Emar Hotels and Investments P. Ltd. |
| Tax Recovery Officer and ors. |
| F. Andhyarujina and ;Pramod Kumar
Parida, Advs. |
| R.M. Sharma, Adv. |
| Petition dismissed |
.....in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an..........which is challenged in the present petition. mr. andhyarujina, learned counsel appearing for the petitioner, has many things to say to challenge this order. however, what we notice is that as against the rejection of this objection, remedy by way of filing a suit is available under sub-rule (6) of the abovereferred rule 11. this sub-rule (6) reads as follows:where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute ; but, subject to the result of such suit (if any), the order of the tax recovery officer shall be conclusive.4. in view of availability of this alternative remedy, in our view the proper course for the petitioner is to file a suit. when an effective alternative remedy is available to the party, the writ court is normally not expected to interfere.5. for the reasons stated above, we decline to entertain this petition. the petition is dismissed with no order as to costs.
1. Heard Mr. Andhyarujina in support of this petition. Mr. Sharma appears for the respondents.
2. The premises being office Nos. 101 and 106 situated in Persepolis Premises at Vashi, Navi Mumbai are the subject matter of this petition. One Mr. K. N. Marathe who was earlier director of Emar Hotels is in tax arrears. This hotel is stated to be owning the aforesaid premises which are attached for the tax dues of Mr. K.N. Marathe by issuing an order under Section 220(2) of the Income-tax Act. Thereafter, a garnishee notice is issued under Section 226(3) of the Act to M/s. Bajaj Allianz to whom these flats have been let out and they are directed to pay the rent payable to the Tax Recovery Officer.
3. This order dated January 7, 2005, was objected to by the petitioner, which objections have been considered and an order has been passed under Rule 11(5) of Schedule II of the Income-tax Act on April 15, 2005. The objections lodged by the petitioner have been rejected by that order and it is this order which is challenged in the present petition. Mr. Andhyarujina, learned Counsel appearing for the petitioner, has many things to say to challenge this order. However, what we notice is that as against the rejection of this objection, remedy by way of filing a suit is available under Sub-rule (6) of the abovereferred Rule 11. This Sub-rule (6) reads as follows:
Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute ; but, subject to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive.
4. In view of availability of this alternative remedy, in our view the proper course for the petitioner is to file a suit. When an effective alternative remedy is available to the party, the writ court is normally not expected to interfere.
5. For the reasons stated above, we decline to entertain this petition. The petition is dismissed with no order as to costs.