S.J. Mukhopadhaya, J.
1. The Writ Appeal has been preferred by the writ petitioner against the order dated 17.6.2006 passed in Writ Petition No. 5251 of 2006, whereby and whereunder, the learned single Judge refused to decide the case on merits on the ground of the availing of the alternative remedy under Section 264 of the Income Tax Act, 1961 (for short, 'the I.T. Act').
2. The main plea taken in the present Writ Appeal is that the availing of the 'Revision' under Section 264 of the I.T. Act is not applicable in a case of attachment of property(ies) of a third party.
3. According to the appellant-writ petitioner, the second respondent-Tax Recovery Officer, Range II, Ernakulam, Kerala State, issued a notice on 10.2.2005 under Rule 48 of the Second Schedule to the I.T. Act, for attachment of the property(ies) in question. Having preferred Writ Petition No. 20918 of 2005 against the said notice, learned single Judge, by order dated 27.6.2005, allowed the writ petitioner to approach the authorities and explain about the ownership of the property(ies), and the authorities in turn were directed to consider the case in accordance with law. Thereafter, taking into consideration the representation dated 26.7.2005 of the appellant-writ petitioner, the second respondent issued the order dated 11.1.2006, which has not been interfered with by the learned single Judge in Writ Petition No. 5251 of 2006, by the impugned order dated 17.6.2006.
4. Apart from the main plea taken by the appellant-writ petitioner that the revisional remedy available under Section 264 of the I.T. Act, is not applicable to the facts of the present case, the other plea taken on behalf of the writ petitioner is that the property(ies) in question which were attached, were gifted to her by her ex-husband Mr. Essa Ismail Sait, by two different documents, dated 16.1.1999 and 5.5.2001, whereinafter, 'Talaq' having been pronounced on 21.3.2002, it was not open for the authorities to attach the property(ies) of the writ petitioner in a proceeding against her ex-husband_Mr.Essa Ismail Sait.
5. On the other hand, the stand taken by the respondents-Income Tax is that the attachment proceedings having been started prior to the pronouncement of 'Talaq' in 2002, in respect of the assessment year 1995-1996 to 2000-2001, it was open for the authorities to attach the property(ies) in question.
6. The Writ Appeal was earlier heard on merits and on 20.6.2008, the appellant-writ petitioner was allowed time to bring on record any document to show that the name of the appellant-writ petitioner is recorded in the Revenue Records in regard to the property(ies) attached by the respondents or any registered deed of Gift, if any effected. It was also made clear in that order dated 20.6.2008 that if the attached property(ies) are not recorded in the Revenue Records in the name of the appellant-writ petitioner, and there is no registered deed of Gift, the appellant-writ petitioner may rely on certain evidence to show the 'Oral Gift' which was accepted.
7. In spite of the time being allowed by the order dated 20.6.2008 and more than three months having been lapsed, the appellant-writ petitioner failed to file any affidavit in terms of the said order dated 20.6.2008.
8. Learned Counsel appearing for the appellant-writ petitioner submitted that the name of the appellant-writ petitioner is not recorded in the Revenue Records and it was only an 'Oral Gift' by which the attached property(ies) were gifted to her by her ex-husband.
9. We have heard the learned Counsel appearing for the parties and noticed their rival contentions and perused the records.
10. It appears from the pleadings/records that a proceeding was drawn by the I.T.C.P-1, in the name of Mr. Essa Ismail Sait (ex-husband of the appellant-writ petitioner) and Mrs. Farhana Sait (appellant-writ petitioner) on 12.5.2004 and 23.11.2004 respectively, for assessment year 1995-1996 for the tax arrears of Rs. 13,48,612/-. Another proceeding against both of them was initiated by the I.T.C.P-1, for the assessment year 1999-2000 on 17.1.2005 for the tax arrears of Rs. 1,48,87,953/-. Another proceeding was drawn against both of them on 17.5.2005 for the assessment year 2000-2001. The interest under Section 220(2) of the I.T. Act up to 31.12.2005 amounting to Rs. 8,73,219/-, Rs. 29,77,481/- and Rs. 7,240/- respectively, were drawn for the above assessment years against her ex-husband--late-Essa Ismail Sait alias Babu Sait.
11. Since no recovery was forthcoming from the defaulter(s), the property(ies) at Ootacamund was attached on 10.2.2005, giving rise to the objection petition filed by the appellant-writ petitioner, stating that the property(ies) were gifted to her by her ex-husband and she has been separated by the pronouncement of 'Talaq' and in no way responsible for the personal liability of her ex-husband and the said objection petition was rejected on 15.4.2005 by the Tax Recovery Officer.
12. Even according to the stand taken by the appellant-writ petitioner, she was married to Mr. Essa Ismail Sait on 28.12.1995 and lived with him up to middle of 1998 in Ernakulam. The husband reportedly pronounced 'Talaq' on 21.3.2002. In her sworn-to statement, dated 10.2.2005 filed before the Income Tax Authorities, the appellant stated that her son was studying in III Standard and the annual expenditure of his education of Rs. 40,000/- was met by her ex-husband--Mr. Essa Ismail Sait. The attached building in question was purchased by Mr. Essa Ismail Sait in 1998 out of the transfer proceedings of Kavitha Theatre at Ernakulam and the construction was also done out of those proceedings, which was gifted to her. By notarised Deed No. 4501, Document No. 754/1998, dated 9.9.1998, nine cents and by Document No. 831/1998, dated 25.9.1998, nine cents, were stated to have been gifted to Mrs. Farhana Sait (appellant herein) by Mr. Essa Ismail Sait. It is also claimed that vide another notarised Deed No. 8204, dated 16.1.1999, by 'Oral Gift' of two properties, in Document No. 740/1998 in Municipal Site No. 4-D of nine cents and Document No. 746/1998, dated 1.9.1998, Municipal Site No. 4.B of eight cents were gifted to the writ petitioner by Mr. Essa Ismail Sait. The cost of the construction of the building at the site(s) in question was about Rs. 65 lakhs, of which the market value of the land(s) comes to about Rs. 35 lakhs. In her letter dated 13.11.2004 addressed to the respondents-authorities, she stated that Mr. Essa Ismail Sait gifted Rs. 97 lakhs by depositing the said sum in the State Bank of India, Ootacamund.
13. The respondents-Income Tax Authorities noticed that though the appellant-writ petitioner's properties stand in the name of her ex-husband and oral gift of the two attached properties still stand in the name of her ex-husband--Mr. Essa Ismail Sait, which were reflected in the Revenue Records. At the time of initiation of proceedings, the writ petitioner was found to be in possession and enjoyment of the property(ies) in question and the attachment was made invoking the provisions of the 'Explanation' to Section 222 of the I.T. Act. The ex-wife (appellant-writ petitioner) of the assessee (Mr. Essa Ismail Sait) is deemed to be an assessee-in-default. The 'Gift Deed' was also declared to be void by the second respondent-Tax Recovery Officer.
14. Learned Counsel appearing on behalf of the appellant-writ petitioner relied on the decision of the Supreme Court in the case of 'T.R.O. v. Gangadhar Vishwanath Ranade' reported in : [1998]234ITR188(SC) . In the said case, the Supreme Court noticed that Section 281 of the I.T. Act, 1961, declares as void any transfer made by the assessee during the pendency of proceedings under the provisions of the I.T. Act with an intention to defraud the Revenue. However, it was noticed that the powers of the Tax Recovery Officer under Rule 11 of the Second Schedule to the I.T. Act, 1961, are somewhat different. Under Rule 11(1), where any claim is preferred to or any objection is made to the attachment or the sale of, any property in execution of a certificate on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection. The Tax Recovery Officer, therefore had to examine as to who is in possession of the property and in what capacity and can only attach the property in the possession of the assessee in his own right or in possession of a tenant or a third party on behalf of/for the benefit of the assessee. He cannot declare any transfer made by the assessee in favour of a third party, void. If the Department finds that a property of the assessee is transferred by him in favour of a third party with an intention to defraud the Revenue, it will have to file a Suit under Rule 11(6) to have the transfer declared 'void' under Section 281 of the I.T. Act.
15. We accept the submission made on behalf of the appellant/writ petitioner that the respondents had no jurisdiction to declare the 'Oral Gift' (if any) as void.
16. So far as the remedy under Section 264 of the I.T. Act relating to the 'Revision' before the authority of the Income Tax is concerned, the question of maintainability of the said 'Revision' can be looked into, if the status of the appellant-writ petitioner is verified to find out as to whether the proceedings were initiated against both the appellant-writ petitioner and her ex-husband or she is a third party having no relationship with the assessee.
17. It is not in dispute, as it appears from the records that ITCP-1, drawn proceedings both in the name of Mr. Essa Ismail Sait (ex-husband of the appellant-writ petitioner) and in the name of Mrs. Farhana Sait (appellant-writ petitioner) for the assessment years, as observed earlier in this judgment and in view of initiation of such proceedings by the respondents-authorities, we are of the prima-facie view that the appellant-writ petitioner cannot claim to be a third party on the ground that she is the ex-wife of the assessee-Mr. Essa Ismail Sait and that the property(ies) in question were 'orally gifted' in her favour.
18. We have noticed that no evidence as to the alleged 'Oral Gift' was brought to our notice, in spite of the order dated 20.6.2008 in this Writ Appeal. It is also not in dispute that the 'Talaq' (i.e. Divorce) was pronounced by her ex-husband (Mr. Essa Ismail Sait) on 21.3.2002 and the proceedings related to the assessment years prior to the pronouncement of such 'Talaq'. In such a situation, if the second respondent-Tax Recovery Officer rejected the representation/application dated 26.7.2005, of the appellant-writ petitioner, we find no ground to interfere with the same, to the extent indicated above.
19. There being no merits, the Writ Appeal is dismissed, but in the facts and circumstances of the case, there shall be no order as to costs. The Miscellaneous Petition is closed.