1. This is a petition under Article 226 of the Constitution for the issue of a direction in the nature of a writ of mandamus to the Income-tax Office, Second Additional City Circle Madras, the Collector of Nilgiris Nilgiris district and the Tahsildar of Coonoor, Coonoor taluk, Nilgiris district, restraining them from proceeding to attach, or to bring to sale, the petitioner's properties for the realisation of the alleged income-tax arrears of her husband, Tharanisingh Gramani and in particular from proceeding with the sale of the Benhutty estate, Kulifcai village, Coonoor taluk, Nilgiris district.
2. For the recovery of arrears of income-tax due from the petitioner's husband; Tharani Singh Gramani, a certificate was issued by the Income-tax Officer, the first respondent, to the Collector of Nilgiris (the second respondent) under Section 46(2) of the Indian Income-tax Act The Collector, in pursuance of this certificate,' proceeded under Sec. 27 of the Madras Revenue Recovery Act, to attach the property described as Benhutty estate for the realisation of the said arrears. This estate, it is common ground, was purchased in the name of the petitioner by a deed of sale dated 1st September 1947. Nevertheless, the property was sought to be attached as the property of the' husband Tharanisingh Gramani, treating the purchase in the name of the petitioner as benami for her husband. In the affidavit filed by the Collector before us, the position taken up-by the respondents is set out thus:
'Though the ostensible title stands In the name of the petitioner, -having regard to the-various circumstances which have been the subject of enquiry before the Income-tax authorities, it is clear that prima facie the authorities have a right to come to the conclusion that the petitioner is a benamidar and that the real owner is- ' the defaulting assessee-- the husband -- In cases where prima facie there are materials to show that a particular sale deed could only be a benami transaction, it is open to the revenue authorities to go behind the mask and attach the right, title and interest of the real owner and bring them to sale.'
The plea was also taken on behalf of the respondents that if the petitioner was aggrieved, it was open to her to institute a suit for a' declaration and seek her remedy, in the ordinary Courts of law.
3. In the affidavit filed by the petitioner In support of the application, she stated that the estate in question was purchased with her own funds, that it had been registered In her name in Government records ever since her purchase and that she was in possession and enjoyment of the property. She further alleged that in 'respect of the income which she was deriving from the said estate and other properties which she owned, she had submitted returns to the income-tax authorities for the assessment years 1947-48 to 1950-51 and had paid the tax which had been assessed on the said income. Her contention was that' there was no statutory provision enabling the Revenue authorities to proceed against the property of persons who were not defaulters,
4. Section 46 (2) or the Indian Income-tax Act, 1922, runs thus:
'The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue:
Provided that without prejudice to any other powers of the Collector in this behalf, he shall, for the purpose of recovering the said amount, have the powers which under the Civil Procedure Code, 1908, a Civil Court has for the purpose of the recovery of an amount due under a decree.'' The proviso was added by Section 16 of Act XVIII of-1933. In Purushottam Govindji Halal v. Additional Collector of Bombay : 1956CriLJ129 the Supreme Court explained the scope of this provision thus:
'On a proper reading, that sub-section does not prescribe two alternative modes of procedure at all. All that the sub-section directs the Collector to do is to proceed to recover the certified amount as If it were an arrear of 3and revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a civil Court has under the Code. The sub-section does not prescribe two separate procedures... ..In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of Sub-section (2) of Section 46.'
5. The Madras Revenue Recovery Act prescribes the procedure for recovery of arrears of revenue. The recovery can be made in -different ways; by the seizure and sale of moveable. property; by attachment and sale of immoveable property; and by execution against the person of the defaulter. (Vide Section 5). Section 25 prescribes the service of a written demand upon the defaulter, and under Section 26 when the amount due has not been paid, the Collector can proceed to recover the arrear by the 'attachment and sale of the defaulter's land'. The mode of attachment is laid down in Section 27., There are other provisions relating to the procedure to be followed on the sale of the attached property. Section 59 saves the right of parties aggrieved by any proceedings taken under the Act to apply to the civil Courts for redress though a short period of limitation of six months from the time at which the cause of action arose is fixed for the institution of any suit.
6. The contention of Mr; M.K. Nambiar, learned counsel for the petitioner, was that there is no provision in the Madras Revenue Recovery Act which enables the Collector to attach and sell' any land other than the land of the defaulter; and land which is registered in the name of some one other than the defaulter cannot be deemed to be the land of the defaulter for the purpose of the Revenue Recovery Act. He relied on the principle of several decisions of this Court which have held that 'defaulter' can only mean, for the purpose of the Madras Revenue Recovery Act, the registered proprietor of the land, even though the real owner may by someone else.'
7. In Zamorin of Calicut v. Sitarama, ILR 7 Mad 405, it was held that where a landholder allows the registry of land to stand in the name of another and the revenue falls into arrears, a 'sale of the land under the provisions of Revenue Recovery Act (Madras Act II of 1864), effected after service of notice upon the person in whose name the patta stands, will pass the landholder's interest to the purchaser at the revenue sale. In Sampath V. Rajah of yenkatagirt : AIR1931Mad51 , Ma-dhavan Nair J. after referring to earlier authorities, held that where one person was the real owner and another was the registered proprietor, the latter and not the former was the 'defaulter' within the meaning of Section 35 of the Revenue Recovery Act (Vide also Venkappa Chari v pompana Gowd, 1918 M WN 191: AIR 1918 Mad 42.
We agree with Mr. Nambiar that there is no provision in the Madras Revenue Recovery Act which enables the Collector to attach and sell land' not registered in the defaulter's name for arrears of 'revenue due from the defaulter. In Fadhmanabha v. Visalakshmi : AIR1938Mad283 , It was pointed out, though in another connection, that It would not be competent to the Collector to go into the question of benami.
8. We agree, however, with Mr. Rama Rao Sahib, who appeared for the respondents, that in, exercise of the additional powers conferred on the Collector under the proviso to Section 48 (2) of the Indian Income-tax Act, i.e., the powers of a civil Court for the purpose of the recovery of an amount due under a decree, the Collector may attach property ostensibly standing in the name of a person other than the defaulter on the assertion by the Income-tax department that the property really belongs to the defaulting assessee. But then the ostensible owner will have the right to prefer a claim under Order XXI, 'Rule 58, Civil P. C., and such claim must be enquired into and disposed of, though summarily, by the Collector in the same way as a Court would be bound to dispose of a claim in the course of execution of a decree.
It would also follow that the unsuccessful party,--it may be the claimant, or it may be the Income-tax department--will have the right to file a suit to establish the tight claimed by either. But for the additional powers conferred on the Collector by the above-mentioned proviso, we are of the opinion that the Income-tax Act does not provide for recovery of arrears due from the assessee from persons in possession of property which they do not admit to be the assessee's property For instance, under Section 46 (5-A) the Income-tax Officer may, at any time, require any person who holds money for, or on account of, the assessee to pay to the Income-tax Officer such money. But where a person to whom such a notice is sent objects to it on the ground that he does not hold any money for or on account of, the assessee, then nothing contained in the section shall be deemed to require such person to pay any such sum, or part thereof, to the Income-tax Officer.
9. Mr Rama Rao Sahib contended firstly that the petitioner would have a right to prefer a claim, eyen though the Collector purported to proceed under the provisions of the Revenue Recovery Act only, and cited in this connection Hiraluxmi Pandit v. Income-tax Officer : 27ITR643(Patna) . In that case, on a certificate sent by the Income-tax Officer under Section 46 (2) of the Income-tax Act, the Collector proceeded to put up for sale certain property as the property of the assessee; but the widow of the assessee claimed that the property was her own. Her claim was rejected and she thereupon filed a suit to vindicate her right.
It was held that the suit was maintainable without the Union of India being made a party, and on the question of onus it was held that though ordinarily where a transaction was challenged as benami, the onus was upon the person who challenged the apparent tenor of the document, in a suit under Section 25 of the Public Demands Recovery Act of Bihar and Orissa the onus was on the plaintiff to establish that the transaction was not benami. We are not aware of the exact provisions of the Bihar and Orissa Public Demands Recovery Act, but from the Judgment of Sinha J. it is clear that there is provision in that Act for preferring a claim to the attached property on the ground that the property belonged to the claimant and not to the defaulter; and on the rejection of such a claim, the claimant has also a right of suit. This decision is therefore of no assistance to us 'as the Madras Revenue Recovery Act does not contain similar provisions.
10. There can be no doubt whatever that a suit for a declaration that the properties attached for realisation of arrears of income-tax due from an' assessee were hot the properties of the assessee but were the properties of the plaintiff and therefore were not liable for - attachment and sale would lie. This would be so even If the Collector was not exercising the additional powers under the proviso to Section 46 (2) of the Act, Vide Union of India v. Firm Ralla Bam Raj Kumar . But then we are prepared to hold that though an aggrieved party may have a right of suit, he will not be precluded from invoicing our power under Article 226 of the Constitution to obtain appropriate orders for preventing the Collector from proceeding to attach and sell property registered in his name. The existence of a remedy by way of a suit is not always a bar to the entertainment of a petition under Article 226 of the Constitution. (Vide New India Tannery v. M.P. Nigara : 29ITR54(All) ).
11. As we have held above that the Collector, acting merely under the Madras Revenue Recovery Act. has no power to attach and cell property registered in the name of any one other than the defaulter, we would have issued a writ of mandamus to forbid him from continuing the proceedings against the property of the petitioner. But in view of the fact that the Collector has also additional powers, which would enable him to attach the property ostensibly standing in the name of the petitioner, as property belonging to the defaulter, we do not think it necessary to make and such order, especially because Mr. Rama Bao Sahib appearing for the respondents has intimated, that the attachment in this case would be treated as an attachment under the provisions of the Code of Civil Procedure and the petitioner will be entitled to prefer a claim, if she chooses to, and the claim will be enquired into and disposed of by the Collector. It will also follow that the party aggrieved by the decision of the Collector will have a right of suit under Order XXI, Rule 63 of the Code.
12. The petition is therefore dismissed; butin the circumstances there will be no order as tocosts..