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Emar Hotels and Investments P. Ltd. Vs. Tax Recovery Officer and ors. - Court Judgment

SooperKanoon Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2301 of 2006
Judge
Reported in(2007)210CTR(Bom)482; [2007]288ITR308(Bom)
ActsIncome Tax Act, 1961 - Sections 220(2) and 226(3); Income Tax Rules - Rule 11(5) and 11(6)
AppellantEmar Hotels and Investments P. Ltd.
RespondentTax Recovery Officer and ors.
Appellant AdvocateF. Andhyarujina and ;Pramod Kumar Parida, Advs.
Respondent AdvocateR.M. Sharma, Adv.
DispositionPetition dismissed
Excerpt:
.....of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii)..........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.....
Judgment:

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.


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