Suhas Chandra Sen, J.
1. The facts of the case have been summarised in the judgment under appeal in the following manner :
The property involved in the present litigation is premises No. 3D, Nandi Street, Calcutta-29. The erstwhile owner of the property was one Mrs. Aparna Chakraborty, the predecessor-in-interest of the present respondent No. 3, who was impleaded, at the time the instant writ application was moved, as respondent No. 3. The erstwhile owner, Smt. Chakraborty, purchased the property by a registered conveyance, dated February 4, 1959, and got her name mutated in the records of the Calcutta Municipal Corporation and also in the records of the Calcutta Electric Supply Corporation for supply of electricity to the said premises. In April, 1987, there was a registered agreement between the said erstwhile owner and the present petitioner, whereby the property was agreed to be sold, by the previous respondent No. 3 to the present petitioner. On or about October 20, 1987, a tax clearance certificate for such sale under Section 230A of the Income-tax Act was issued on the prayer of the erstwhile respondent No. 3, by the Income-tax Officer, K-Ward, District-7, Calcutta. The agreed sale in favour of the present petitioner by erstwhile respondent No. 3 was effected through a registered instrument dated November 14, 1987, and the previous respondent No. 3 asked the tenant of the said property to attorn to the purchaser petitioner. It is pertinent to note that the husband of previous respondent No. 3, Sri N. G. Chakraborty, who died on April 24, 1984, was never assessed with regard to the said property. It appears from the materials produced before me that the said property was purported to have been attached on November 6, 1987, for the income-tax dues of Sri N. G. Chakraborty since deceased, and the tenants of the said property were asked not to make payment of rent to the said Sri N. G. Chakraborty --a fact which came to the knowledge of the petitioner on or about December 12, 1987. On enquiry, on or about December 18, 1987, the petitioner came to know that the said property in enforcement of the order of attachment, had been notified for sale.
2. It may be noted that the case of the Department is that the husband of the appellant, Sri N. G. Chakraborty, who died on April 24, 1984, had all along been assessed in respect of the annual rental value of the property in dispute. Mr. Murarka, on behalf of the purchaser of the property, has contended that the provisions of the Benami Transactions (Prohibition) Act, 1988, made it clear that the transaction being benami in the name of the wife could not be attached by the Tax Recovery Officer. The provisions of the Benami Transactions (Prohibition) Act, 1988, was a complete bar to the point taken by the Tax Recovery Officer. We do not propose to go into this controversy in this case because in our view the contention of the appellant should succeed otherwise. We make it clear that we have not upheld the contention of Mr. Murarka in this regard. This question is left open to be decided in some other proceedings.
3. It is well-settled that the statutory authority cannot exercise the powers beyond the statutory provisions. Under the Income-tax Act, there is no bar against transfer of property by husband to wife. If the transfer is without any consideration or for inadequate consideration then certain consequences follow. One of the consequences is that the income of the property is liable to be included in the hands of the husband for the purpose of assessment. These provisions were contained in Section 16(3) of the Indian Income-tax Act, 1922. Similar provisions have been included in Section 64, Sub-section (1), Clause (iv), of the Income-tax Act, 1961. It is to be noted that although the income is to be included in the assessment of the husband the transfer of the property to the wife did not became void altogether. Under the Income-tax Act, 1961, certain provisions have been made to safeguard the revenue and to enable the Tax Recovery Officer to proceed against the transferred properties. Section 222 provides that a Tax Recovery Officer may proceed to attach and sell the assessee's immovable property when the assessee is in default or is deemed to be in default in making payment of tax. The Explanation to Section 222 which was inserted with effect from October 1, 1975, has strengthened the arm of the Tax Recovery Officer who can attach and sell properties which have been transferred directly or indirectly by the assessee in default to his spouse but this provision has been applied to transactions which take place after June 1, 1973.
4. There is another section in the Act of 1961 which has to be considered. This is Section 281 which provides :
' (1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under Rule 2 of the Second Schedule, any assessee creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of, any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the said proceeding or otherwise :
Provided that such charge or transfer shall not be void, if it is made, --
(i) for adequate consideration and without notice of the pendency of such proceeding or, as the case may be, without notice of such tax or other sum payable by the assessee ; or
(ii) with the previous permission of the Assessing Officer.
(2) This section applies to cases where the amount of tax or other sum payable or likely to be payable exceeds five thousand rupees and the assets charged or transferred exceed ten thousand rupees in value.'
5. This section also came into operation with effect from October 1, 1975, by virtue of Section 73 of the Taxation Laws (Amendment) Act, 1975. As a result of the provisions of these sections any transfer during the pendency of the proceeding under this Act or after completion thereof will be void if the purpose of the transaction was to evade tax payable by the assessee.
6. In the instant case, the purchase of the property in the name of wife and mutation in the name of wife took place in or about 1959 and the claims of the income-tax arrears was against the husband in respect of the assessment years 1972-73, 1973-74 and 1974-75. If that be so, this transaction is not remotely connected with any liability of the husband or to avoid payment of tax by the husband. Therefore, in our view, the Tax Recovery Officer cannot proceed to recover the tax dues of the husband by attaching the house which stands in the name of the wife since 1959. The property has been sold with a tax clearance certificate granted by the Income-tax Officer and the purchaser purchased the property with full knowledge that the Income-tax Officer has no claim against the wife and the transfer was duly registered. After getting the clearance certificate, the transfer was duly registered. The registration cannot be cancelled once again at this stage.
7. Therefore, in our view, the appeal should succeed. There will be an order as prayed for in terms of prayers (b) and (c) of the writ petition.
8. The Special Officer will be entitled to retain ten per cent. of the amount collected and the balance will be handed over to the appellant.
9. The Department is directed to hand over xerox copies of this order to the learned advocates for the parties and the learned advocate for the U. B. I., High Court branch, on the usual undertaking.
Arun Kumar Dutta, J.
10. I agree.