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K. Siddalingaiah and anr. Vs. Income Tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 17906 and 18067 of 1979
Judge
Reported in(1981)25CTR(Kar)338; ILR1981KAR741
ActsIncome Tax Act, 1961 - Sections 281
AppellantK. Siddalingaiah and anr.
Respondentincome Tax Officer
Excerpt:
..... presumption admissibility of ancient documents without proof rule of necessity and convenience held, it is extremely difficult and sometimes impossible to prove the hand writing or signature or execution of ancient documents after the lapse of many years . the words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. it is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. further, though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. hence, no presumption under section 90..........he had gathered, the ito passed an order purporting to u/s 281 of the it act, holding that the transfers in question were void as offending s. 281 of the act as the same were for inadequate consideration in favour of relatives with intention to defraud the revenue. aggrieved by that order the petitioners have approached this court u/art. 226 of the constitution to quash the same on the ground that the ito had no jurisdiction or authority to pass the order dt. 27-7-1979 declaring void the aforementioned transfers. 4. a similar question arose for consideration by this court in the case of b. a. basith v. ito and anr. srinivasa iyengar, j. - who decided that case has held that s. 281 of the act by itself did not contemplate making of any order by any authority. that it was declaratory.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. The above petitions are disposed of by this common order as the facts and questions of law raised are the same in both the petitions and are directed against the common order passed by the respondent ITO, Hssan.

2. The petitioners are residents of Hassan. They are aggrieved by the order made by the respondent-ITO, Hassan Circle, Hassan u/s 281 of the IT Act, 1961 (hereinafter referred to as 'the Act').

3. The undisputed facts may be briefly stated and they are :

The two petitioners are transferees of certain immovable properties situated at Hassan and Sakleshpur. Their transferor, (one Sri M. P. Jayaram, was an assessee as Joint Hindu Family. In one case the property is a vacant land measuring 60' X 90' situated on the Bus-Stand road at Hassan. Another property is a site with shops, also at Hassan. Another property is also a site situated at Bangalore-Mangalore Road in Sakleshpur Town. The first mentioned property has been sold to the petitioner Smt. K. M. Prema in Writ petition No. 18067 while the remaining two properties are transferred to Sri K. Siddalingaiah, petitioner in Writ petition No. 17906 of 1979 one by way of gift and another by way of sale. At the time the transfers were effected there were proceedings pending before the respondent both under the IT Act as well as the WT Act. The petitioners are alleged to be relatives of the aforementioned M. P. Jayaram. The respondents ITO (hereinafter referred to as 'ITO'), on coming to know of the transfers, called upon the transferees petitioners to appear before him and thereafter examined them on oath concerning the transfers. After recording their statements on oath and on the basic of their materials he had gathered, the ITO passed an order purporting to u/s 281 of the IT Act, holding that the transfers in question were void as offending s. 281 of the Act as the same were for inadequate consideration in favour of relatives with intention to defraud the Revenue. Aggrieved by that order the petitioners have approached this Court u/Art. 226 of the Constitution to quash the same on the ground that the ITO had no jurisdiction or authority to pass the order dt. 27-7-1979 declaring void the aforementioned transfers.

4. A similar question arose for consideration by this Court in the case of B. A. Basith v. ITO and Anr. Srinivasa Iyengar, J. - who decided that case has held that s. 281 of the Act by itself did not contemplate making of any order by any authority. That it was declaratory in nature. He further held after pointing out the essential ingredients of the Section that it was not for the assessing ITO to make an order under that Section as the question to be investigated in respect of transfers would arise only after the proceedings were concluded and the assessed tax remained unpaid. He therefore, held that a declaratory order made by the ITO at the stage of assessment would be without the authority of law.

5. No appeal appears to have been preferred against the above decision of Srinivasa Iyengar, J., I, therefore must take it that the Department has come to accept the decision. I do not find any reason to disagree with the construction put by the ld. Judge in Basith's case on s. 281 of the Act and its implications. On the other hand I respectfully concur with his view.

6. Following that decision, the impugned order which is at Exhibit G. In writ petition No. 17906 of 1979, is quashed as one made without the authority of law and without Jurisdiction, as it is a composite order covering all the three transfers made in favour of the two petitioners, it is unnecessary to quash it again in the other writ petition.

7. Rule is made absolute. A writ of certiorari shall issue quashing the order at Exhibit 'G' in Writ Petition No. 17906 of 1979.

In the circumstances of the case, there will be no order as to costs.


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