Dismissed

Tmt.Subashree v. the Canara Bank Rep by Its

Madras HC1 Feb 2010WP/6536/2003

Case brief

AI extract

What is this about?

This writ petition challenged a bank's notice to remit a fixed deposit attached for the taxpayer husband's tax arrears. The Court held that alternative remedies under the Income Tax Act were available. The writ was dismissed as not maintainable.

What the court decided

AI extract

Tmt.Subashree Vs the Canara Bank Rep by Its — Pension and Retirement Benefits | Madras HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.02.2010

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CORAM:

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THE HONOURABLE MR. JUSTICE M. VENUGOPAL

W.P.No.6536 of 2003

Subashree

....Petitioner

Vs.
1. The Canara Bank rep by its
Senior Manager
Egmore Branch
Chennai-600 008
2. The Commissioner of Income Tax(V)
121,Nungambakkam High Road
Chennai-600 034 .... Respondents
This Writ Petition filed under Article 226 of the
Constitution of India praying for the issuance of the writ of
Certiorari as stated therein.
For Petitioner : No appearance
For Respondents: Mr.G.Bharadwaj-R1
Mr.K.Ramasamy
Senior Special Public Prosecutor
for R2
O R D E R

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The petitioner has filed this writ petition praying for issuance of a writ of certiorari, to call for the records relating to the proceedings pursuant to the communication in No.MSPR:IT Attachment 2003 GVR dated 18.2.2003 of the first respondent and to quash the same.

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The petitioner is the wife of Thiru V.Baskaran. The first respondent/Bank by its communication dated 18.2.2003 has informed the petitioner that her Fixed Deposit for Rs.10 Lakhs lying with the Bank was attached by the Income Tax Officer, Central CIR II(4), Chennai in the year 1997 as per Section 226(3) of the Income Tax Act in lie of arrears of income tax of her husband Baskaran and that the income tax authorities has requested the first respondent/bank to remit the maturity proceeds of the Fixed Deposit

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to them and therefore a request has been made to the petitioner by the Bank to get the attachment order withdrawn on or before 22.2.2003, failing which they may have to remit the amount to the concerned authorities. This communication of the first respondent Bank has driven the petitioner to approach this Court by means of filing of the present writ petition.

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It transpires from the contents of the affidavit filed by the petitioner to the effect that the Fixed Deposit amount of Rs.10 Lakhs is under the attachment of the second respondent/Income Tax Department and that if the amount is remitted to the second respondent/Income Tax Department, then she will be put to hardship and prejudice and also that her husband has filed a writ petition in W.P.No.10686/2001 and also that her husband approached the authorities in this regard and it is evident from the typed set of papers that the petitioner has addressed a letter dated 21.2.2003 to the second respondent Bank inter alia stating that her husband may have arrears of income tax and that it does not mean that she should settle his dues with the Department and there is no law in India making the wife responsible for paying any arrears of tax of the husband and therefore, the second respondent/Bank is not authorised to pay the money to the Department and therefore, as demanded the first respondent/Bank is to keep the deposit in tact with it and that she is contemplating moving the appropriate authorities including the High Court in the matter in issue etc.,

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It is to be noted that the petitioner's husband V.Baskaran has filed W.P.No.10686 of 2001 praying for the relief of quashing the impugned orders in IT(SS) No.238/Mds/98 dated 7.8.1998 and MP.No.13/MDS/2000 dated 22.2.2001 passed by first respondent for the Block Assessment years 1987-88 to 1997-98 and consequently direct the Registry of the first respondent to list the appeal filed against the block assessment for hearing. The said writ petition has been dismissed by this Court as withdrawn without costs, in view of the endorsement made by the learned counsel for the petitioner to that effect on 10.4.2007.

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The learned counsel for the second respondent/Income Tax Department submits before this Court that there was a search under Section 132 of Income Tax Act 1961 in the case of the petitioner's husband V.Baskaran on 24.9.1996 and as such a notice as per Section 158 BC was served on 28.12.1996 and he had not filed the return in response to the notice within the due date and therefore, the assessment was getting barred by limitation on 30.9.1997 and the petitioner's husband filed return on 25.9.1997 disclosing an income of Rs.18,04,100/- and the return submitted by him does not contain any basic details like undisclosed income assessment year wise, nature of undisclosed income etc., and more over during the period of search, it was found out by the Department that there was a

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deposit of Rs.10 lakhs in Sriram Group of Companies standing in the name of the petitioner(wife of V.Baskaran), made on 17.10.1994 and therefore, Baskaran, viz., the petitioner's husband was asked to explain the source of deposit as per the Assessing Officer's letter dated 11.8.1997 and at the time of search, the petitioner's husband mentioned that the money would have been received by his wife at the time of marriage and later a sworn statement was recorded from him on 26.8.1997 and on 10.9.1997 and as a matter of fact, the petitioner's husband had not produced any evidence like the note book containing the gifts received by his wife at the time of marriage, notwithstanding the promise made by him to produce the same and resultantly the deposit was considered as the income of the petitioner's husband V.Baskaran since the petitioner/wife had no source of income and that the petitioner/wife has admitted that she was not an income tax assessee.

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Later, the petitioner's husband V.Baskaran preferred an appeal before the Income Tax Appellate Tribunal and the appeal was dismissed by the Tribunal inasmuch as he had not paid the taxes on the disclosed income. Since the tax as per the assessment which was affirmed in appeal before the Income Tax Appellate Tribunal was not paid,the Assessing Officer attached the deposit which was transferred to first respondent/Canara Bank by means of an issuance of notice as per Section 226(3) of the Income Tax Act 1961 dated 1.12.1997 and the notice was served on the bank on 3.12.1997 by means of a registered post/acknowledgment due. More over, the notice was not in force in view of the interim stay granted by this Court .

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Also, the stand of the second respondent/Income Tax Department is that the second respondent is not a proper party and the proper party is a Commissioner of Income Tax, Central Circle-II (4) Chennai, is the assessing Officer, who has issued the notice as per Section 226 (3) of Income Tax Act.

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At this stage, the learned counsel for the second respondent/Income Tax Department submits that the present writ petition filed by the petitioner is not maintainable because of the fact that the first respondent has only sent an intimation to the petitioner requesting her to get attachment order withdrawn on or before 22.2.2003 etc and in fact the petitioner has got a viable , alternative, effective,efficacious remedy of approaching the income tax authorities, firstly by way of filing first appeal before the Commissioner of Income Tax(Appeals) as per Section 251 of Income Tax Act and later to prefer an appeal as per Section 253 of the said Act before the Income Tax Appellate Tribunal and also she has got a remedy by way of appeal before the Tax Bench of this Court as per Section 260(A) of the said Act and when the petitioner has not exhausted any of these remedies then she is estopped from

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approaching this Court by means of writ proceedings.

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9.In support of his contention, the learned counsel appearing for the second respondent cites on the decision of the Honourable Supreme Court in GKN Driveshafts (India) Ltd-v- Income Tax Officer (Volume 259 ITR 19) wherein it is held as follows:

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"When a notice under Section 148 of the Income Tax Act,1961, is issued, the proper course of action for the notice is to file the return and,if he so desires, to seek reasons for issuing the notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order."

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He also submits that when an alternative and equally efficacious remedy is open to a party under the Income Tax Act 1961,then he/she should pursue only that remedy and not to invoke the special jurisdiction of this Court and in support of the said submission, he relies on the decision in Dr.K.Nedunchezhian-vDeputy Commissioner of Income Tax(2005)279 ITR 342(Mad) wherein and whereunder this Court has held that ' when an alternative equally efficacious remedy open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise.'

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As far as the present case is concerned, when the petitioner's husband is the assessee in default and when the Assessing Officer of the Income Tax as per Section 226(3) of the Act has attached the Fixed Deposit of Rs.10 Lakhs and more over, when the petitioner has, in law, an effective and efficacious remedy by approaching the Tax authorities concerned under the Income Tax Act 1961 to redress her grievance in the manner known to law, then, this Court is of the considered view that the petitioner is to approach the forum created under the Income Tax Act and it is not open to the petitioner to shake or shackle the procedural wrangle under the scheme and teeth of the Income Tax Act and added further, the letter dated 18.2.2003 of the first respondent/ Bank address to the petitioner cannot provide a cementing platform to the petitioner so as to give rise to the cause of action to approach this Court under Article 226 of the Constitution of India and viewed in that perspective, the writ

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petition sans merits and consequently, the same fails.

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In the result, this writ petition is dismissed leaving the parties to bear their own costs. Liberty is given to the petitioner to approach the concerned income tax authorities for seeking redressal of her grievance, if any,if so advised in the manner known to law.

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Sd/

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Asst.Registrar

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/true copy/
Sub Asst.Registrar
sg
To
1. The Senior Manager
Canara Bank
Egmore Branch
Chennai-600 008
2. The Commissioner of Income Tax(V)
121,Nungambakkam High Road
Chennai-600 034
+1cc to Mr.M.Suresh Kumar, Advocate SR 6118
+1cc to Mr.G.Bharadwaj,Advocate Sr 5995
PA(CO)
km/10.2.
W.P.No.6536 of 2003

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https://hcservices.ecourts.gov.in/hcservices/

Tmt.Subashree v. the Canara Bank Rep by Its

Case brief

What is this about?

What the court decided

Tmt.Subashree v. the Canara Bank Rep by Its

Case brief

What is this about?

What the court decided

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