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iqbal Begum and ors. Vs. Tax Recovery Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition Nos. 484 of 1969 and 801 and 1144 of 1970
Judge
Reported in[1974]97ITR310(Mad)
ActsIncome Tax Act, 1961 - Sections 222 - Schedule - Rules 4, 10 and 11
Appellantiqbal Begum and ors.
RespondentTax Recovery Officer and ors.
Appellant AdvocateK.K. Venugopal, Adv.
Respondent AdvocateV. Balasubrahmanyan and ;J. Jayaraman, Advs.
Cases ReferredPedrlberg v. Varty
Excerpt:
direct taxation - attachment - section 222 of income tax act, 1961 and rules 4, 10 and 11 of income tax rules, 1962 - petition challenging validity of order of attachment made by tax recovery officer - petitioner contended that provisions of 2nd schedule of act enable tax recovery officer (tro) to attach and sell properties standing in name of defaulter and not any property not in his name though it may be his property and in his possession - as per act defaulter means assessee - rule 4 authorises tro to realise arrears of tax by attachment and sale of defaulter's movable and immovable properties - all properties of defaulter's liable for attachment and sale for recovery of amount due to him - as per rules 4 and 10 properties held in name of defaulter or by another in trust or in his.....ramaswami, j. 1. these writ petitions challenge the validity of attachment orders made by the tax recovery officers with respect to the attachment of the properties which stand registered in the names of the petitioners for the recovery of income-tax arrears due from the respective husbands of the petitioners in writ petitions nos. 484 of 1969 and 1144 of 1970, and the father of the petitioner in writ petition no. 801 of 1970. the petitioner in writ petition no. 484 of 1969 is one iqbal begum and an extent of 12 acres, 43 cents which was purchased in her name under sale deeds dated december 15, 1963, and january 5, 1964, was attached and proclaimed for sale for the recovery of income-tax arrears due from her husband on the ground that the defaulter purchased the properties in the name of.....
Judgment:

Ramaswami, J.

1. These writ petitions challenge the validity of attachment orders made by the Tax Recovery Officers with respect to the attachment of the properties which stand registered in the names of the petitioners for the recovery of income-tax arrears due from the respective husbands of the petitioners in Writ Petitions Nos. 484 of 1969 and 1144 of 1970, and the father of the petitioner in Writ Petition No. 801 of 1970. The petitioner in Writ Petition No. 484 of 1969 is one Iqbal Begum and an extent of 12 acres, 43 cents which was purchased in her name under sale deeds dated December 15, 1963, and January 5, 1964, was attached and proclaimed for sale for the recovery of income-tax arrears due from her husband on the ground that the defaulter purchased the properties in the name of his wife, the petitioner, that the petitioner was a benamidar, that the real owner was the defaulter and that the properties had been in the possession and enjoyment of the defaulter. The attachment and the proclamation of sale in respect of property concerned in Writ Petition No. 1144 of 1970 were also made in identical circumstances. The property purchased in the name of the petitioner therein was a house property. The facts in Writ Petition No. 801 of 1970 could be mentioned at a later stage.

2. In these writ petitions, the learned counsel for the petitioner conceded for the purpose of argument that the petitioners were benamidars and the legal or real ownership in the properties attached is vested in the defaulter, but he contended that the provisions of the Income-tax Act, 1961, and the Second Schedule thereof do not authorise the Tax Recovery Officer to attach and bring to sale any property which stands in the name of or registered in the name of a third party and that only those properties which stand registered in the name of the defaulter could be attached and brought to sale for recovery of the arrears of income-tax due from the defaulter.

3. Under Section 222 of the Act, on receipt of a certificate from the Income-tax Officer specifying the amount of arrears due from the assessee, the Tax Recovery Officer can proceed to recover from such assessee the amount specified therein by: (a) attachment and sale of the assessee's movable property, (b) attachment and sale of the assessee's immovable property, (c) arrest of the assessee and his detention in prison, and (d) appointing a receiver for the management of the assessee's movable and immovable properties, in accordance with the rules laid down in the Second Schedule. The word 'defaulter' is defined in the Second Schedule to the Act as meaning the assessee mentioned in the certificate. Before proceeding to attach and sell the property of the defaulter, the Tax Recovery Officer is required to serve a notice on the defaulter requiringhim to pay the amount specified in the certificate within 15 days from the date of service of the notice and intimating that, in default, steps would be taken to realise the amount under the Second Schedule. If the amount mentioned in the notice is not paid within the time specified therein or within such further time as the Tax Recovery Officer may grant in his discretion under rule 4 of the Second Schedule, the Tax Recovery Officer shall proceed to realise the amount by attachment and sale of the defaulter's movable or immovable property or by one or more of the modes referred to therein. The provisions in the Second Schedule to the Act relating to the attachment and sale of immovable properties of the defaulter with which alone we are concerned in these writ petitions are in pari materia with those contained in Order 21 of the Code of Civil Procedure. Rules 48 to 51 of the Second Schedule relating to attachment of the immovables correspond to Rule 54 of Order 21, Code of Civil Procedure. Claim petitions and investigation into those claims and orders to be made therein are provided in Rule 11 of the Second Schedule to the Act and to the same effect as in Rules 58 to 61 and 63 of Order 21, Code of Civil Procedure. The provisions relating to proclamation of sale, the contents of the proclamation, the mode of making the proclamation, the time of sale and adjournments are contained in Rules 52 to 55 and 15 of the Second Schedule corresponding to Rules 64, 66 to 69 of Order 21, Code of Civil Procedure. The provisions in Rules 57 to 68 of the Second Schedule relating to deposit by the purchasers, the procedure to be followed in default of payment, the applications to set aside the sale or confirmation of sales are identically worded as in Rules 83 to 94 of Order 21, Code of Civil Procedure. Thus, it is seen the entire provisions relating to attachment and sale of immovable properties of the judgment-debtor found in the Code of Civil Procedure are incorporated in the Second Schedule as the procedure to be followed for attachment and sale of the defaulter's properties for the recovery of the arrears of income-tax due from the defaulter. It may be mentioned that the Indian Income-tax Act, 1922, did not provide for the procedure to be followed for the recovery of the arrears as it is now found in the Second Schedule, but Section 46(2) enabled the Collector on receipt of the certificate from the Income-tax Officer specifying the amount of arrears due from the assessee to proceed to recover from such assessee the amounts specified, therein as if it were an arrear of land revenue. The proviso to that section further stated that for the purpose of recovering the amounts specified in the certificate, the Collector shall have all the powers which a civil court has under the Code of Civil Procedure, 1908, for the purpose of recovery of an amount due under a decree.

4. In a series of cases decided under Section 46(2) of the Indian Income-tax Act, 1922, it has been held that in exercising the powers of a civilcourt for recovery of the amount due under a decree, the Collector may attach the 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 the learned counsel for the petitioners contended that the provisions of the Second Schedule enable the Tax Recovery Officer to attach and sell only the properties standing in the name of the defaulter and not any property which does not stand in his name, though it may be his property and in his possession. In other words, the property standing in the name of some other person benami for the defaulter and property in the possession of some other person in trust for the defaulter or for the benefit of the defaulter could not be attached and sold for realising the arrears of income-tax due from the defaulter. In such a case it was contended by the learned counsel that the department should rile a suit against that person, obtain a decree declaring that the property belongs to the defaulter and after backing itself thus by a decree, proceed to attach and sell under the provisions of the Second Schedule. He further contended that the civil courts were enabled to attach and sell properties held benami for the judgment-debtors by reason of the provisions of Section 60 of the Code of Civil Procedure only and in the absence, of a provision similar to Section 60 in the Income-tax Act, the Tax Recovery Officer could not proceed against properties held benami for the defaulter. Section 60 of the Code of Civil Procedure reads as follows :

'The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government Securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf.'

5. The proviso to this section sets out the properties which shall not be liable for such attachment or sale. Learned counsel for the petitioners, in support of his contention, relied on the last portion in the section which reads as: 'whether the same be held in the name of the judgement-debtor or by another person in trust for him or on his behalf', and contended that, but for the provision, even the civil court could not have the power to attach or sell properties held by another person in trust for the judgment-debtor. In the absence of a provision in the Income-tax Act similar to Section 60 of the Code of Civil Procedure, it was contended, the properties held in trust by a third party for the defaulter could not beattached and brought to sale. We are unable to accept this contention of the learned counsel. It may be mentioned that under Section 82 of the Indian Trusts Act, 1882, a benamidar holds the property for the benefit of the real owner who provided the consideration for the purchase.

6. Section 222 of the Income-tax Act, 1961, and Rule 4 of the Second Schedule authorise the Tax Recovery Officer to realise the arrears of tax by attachment and sale of the defaulter's movable or immovable properties. There is no restriction placed on this light of the Tax Recovery Officer so far as the property which he could proceed against. All the properties of the defaulter are liable to be proceeded against. The properties that are exempt from attachment and sale for recovery of tax arrears are set out in Rule 10 which reads as follows :

'(1) All such property as is by the Code of Civil Procedure, 1908 (V of 1908), exempted from attachment and sale in execution of a decree of a civil court shall be exempt from attachment and sale under this Schedule,

(2) The Tax Recovery Officer's decision as to what property is so entitled to exemption shall be conclusive.'

7. It is not the case of the petitioners that property held benami in the name of a third party is one of those properties exempted from attachment and sale in execution of a decree of a civil court under the provisions of the Code of Civil Procedure, 1908. All properties of the defaulters are liable for attachment and sale for recovery of amount due from him. If any property is to be exempt from attachment, a specific provision to that effect is necessary. Rule 10 provides for exemption from attachment of certain properties. What is not exempted under Rule 10 is, in our view, liable to be attached and sold. Therefore, on a plain reading of Rules 4 and 10, we are of the view that properties held in the name of the defaulter or by another in trust or on his behalf are liable for attachment and sale, Such a power also could be inferred from Rule 11 of the Second Schedule. The said Rule 11 of the Second Schedule reads as follows :

'11. Investigation by Tax Recovery Officer.--(1) Where any claim is preferred to, or any objection is made to the attachment or 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 :

Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection, uponsuch terms as to security or otherwise as the Tax Recovery Officer shall deem fit.

(3) The claimant or objector must adduce evidence to show that-

(a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears, or

(b) (in the case of movable property) at the date of the attachment, he had some interest in, or was possessed of, the property in question.

(4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale.

(5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim.

(6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive.'

8. As already stated, these provisions correspond to Rules 58 to 61 and 63 of Order 21, Code of Civil Procedure. In the enquiry, among other things, the Tax Recovery Officer has to find out whether the property was not, on the date of service of notice, in the possession of the defaulter or of some person in trust for him or even if it is in the possession of the defaulter at the said date it was so in his own possession not on his own account or as his own property but on account of or in trust for some other person. If he is satisfied that the property, on the relevant date, was in the possession of the defaulter as his own property and not on account of any other person or was in the possession of some other person in trust for him, the claim petition shall have to be dismissed. The objector, thereafter, has a right to institute a suit in a civil court to establish the right or claim, if any, in the property in dispute. The scope of the enquiry in the claim petition being to find out whether the claimant is in possession in his own right or on behalf of the defaulter, it would be necessary in order to determine that question to find out whether the transfer under which the petitioner claimsis real or sham. The question of benami would, therefore, be relevant and contemplated in an enquiry in a claim petition. This implies that properties held in trust for the defaulter could be attached and sold. Rule 11, in our opinion, impliedly authorises the Tax Recovery Officer to attach and sell properties held by third parties benami for the defaulter.

9. There can be no doubt that the power can be conferred by the enactment expressly as well as by necessary implication. In this connection, we may also usefully refer to some cases which deal with the implied power. In Y. R. Parpia v. Chamarbaugwalla, A.I.R. 1949 Bom. 109 while considering Section 4 of the Bombay Prize Competition Tax Act, it was held that when the section required that prize competition shall not be conducted unless a licence in respect of such a competition has been obtained by the promoter thereof from the Collector, it carried with it also the implied power assumed in the section on the par : AIR1949Bom109 t of the Collector to issue a licence. In V. G. Row v. State of Madras : AIR1951Mad147 a Full Bench of this court considered a number of English and Indian cases on this aspect. That case concerned with the interpretation of the Criminal Law Amendment Act as amended in Madras. The Act was amended by the Madras Act 11 of 1950 which came into force on August 15, 1950. Section 16 of the Act as it originally stood expressly empowered the Provincial Government by notification in the Official Gazette to declare any association which in its opinion interfered or had for its object interference with the administration of the law or with the maintenance of law and order or that it constituted a danger to public peace, an unlawful association. Section 15(2)(b) of the Act defined an unlawful association as an association declared to be unlawful by the Provincial Government under the powers conferred by the Act. Section 3 of the Madras Amending Act 11 of 1950 deleted Section 16 and Section 2 substituted for Section 15(2) a new sub-clause (b). The new Sub-clause (b) to Section 15(2) reads as follows :

(b) 'which has been declared by the State Government by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association-

(i) constitutes a danger to the public peace, or

(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or

(iii) has interfered or interferes with the administration of the law or has such interference for its object.'

10. It was held that though there is no specific provision in the Act, the power to notify an association as unlawful is implied in the substituted Section 15(2)(b). We are, therefore, of the opinion that Rule 11 alsoimpliedly authorises the attachment and sale of property held benami for the defaulter.

11. Reliance was placed by the learned counsel for the petitioners on the decision in Dhanalakskmi Ammal v. Income-tax Officer : [1957]31ITR460(Mad) in support of his contention that properties held benami for the defaulter could not be attached and brought to sale. That was a case arising under Section 46(2) of the Indian Income-tax Act, 1922. There also the property of the defaulter was sought to be attached treating the purchase in the name of his wife as benami for the defaulter. Though this court accepted the contention that there is no provision in the Madras Revenue Recovery Act, 1864, which enabled the Collector to attach and sell lands not registered in the defaulter's name for arrears of tax due from the defaulter, the attachment and sale itself was upheld on the ground that under the proviso to Section 46(2), the Collector had all the powers of a civil court for the purpose of recovering the amount due under a decree. The learned counsel wanted to interpret and understand this judgment as if it was because of Section 60 of the Code of Civil Procedure only, this court upheld the power of attachment and sale. We are of the view that this is a narrow understanding of the judgment. What the learned judges repeatedly referred to in upholding the power was the right of the party to file a claim petition under Order 21, rule 58, Code of Civil Procedure and the ultimate right to file a suit. It is the absence of provisions similar to Rules 58 to 63 of Order 21, Code of Civil Procedure, that formed the basis for holding that the Collector had no power to attach and sell the property not registered in the name of the defaulter under the Madras Revenue Recovery Act. In fact the learned judges distinguished the decision in Hiraluxmi Pandit v. Income-tax Officer : [1955]27ITR643(Patna) on the ground that the relevant Revenue Recovery Act of Bihar appears to have contained a provision 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. Therefore, far from supporting the case of the petitioner, we are of the view that this decision recognises a right of the Tax Recovery Officer to attach property ostensibly standing in the name of a person other than the defaulter on the assumption made by the department that the property really belongs to the assessee. We have, therefore, no hesitation in holding that properties held benami for the defaulter or held by any person in trust for the benamidar or on his behalf are liable for attachment and sale under Section 222 read with the Second Schedule to the Act. A similar view was also taken by a single judge of the Punjab High Court in Lakshmi Narayan Public Charity Trust v. V. R. Tuteja .

12. It was next contended by the learned counsel for the petitioners that before issuing an order of attachment of properties in the possession of some other person in trust for the defaulter or registered in the name of a third party, a notice should have been Issued to that person and a preliminary enquiry held regarding the attaehability of the property. Ex parte attachment, carries with it certain civil consequences. Jt may lead to humiliation and irreparable loss to the ostensible owner. The principles of natural justice demand a preliminary enquiry including the attaehability of the property before an actual order of attachment is issued under rale 48 of the Second Schedule. So the argument ran. In this connection he relied on two decisions of the Supreme Court in Stale of Orissa v. Binapani Dei : (1967)IILLJ266SC and A. K. Kraipak v. Union of India : [1970]1SCR457 wherein it was held that even an administrative order which Involves civil consequences must be made consistently with the rules of natural justice and this is necessary in order to prevent the abuse of power and to see that the administrative authority does not become a new despotism. Rule 48 and Rule 11 of the Second Schedule to the Income-tax Act do not contemplate any enquiry before the order of attachment was made. On the other hand, the rules postulate only a posterior enquiry. The learned counsel for the petitioners conceded that if the registered owner is the defaulter but the real owner of the property attached is a different person no preliminary enquiry is necessary before attachment and that even in cases where the property was in the possession of the defaulter, not on his own account or as his own property but on account of or in trust for some other person, no preliminary enquiry is necessary. If this position is conceded, we do not see any logic in contending that only in the case of property standing in the name of some person other than the defaulter that a preliminary enquiry is necessary before attachment. If the Tax Recovery Officer is bona fide satisfied OB. the materials available before the attachment order was made, that the real owner was the defaulter, he can make an order of attachment. But this prirna facie satisfaction of the Tax Recovery Officer is only an interim satisfaction and the order of attachment itself is an interim order subject to the enquiry under Rule 11 and the final orders to be passed thereon. Unless, in the enquiry under Rule 13 the Tax Recovery Officer is satisfied that the property was in the possession of some other person in trust for the defaulter he shall release the property from attachment. The satisfaction of the Tax Recovery Officer that the real owner was the defaulter is also subject to any suit that may be filed by the party aggrieved. It may also be noted that the Tax Recovery Officer at the stage of attachment might not be aware of all the competing claims. Only-after attachment when a claim petition is made, a full fledged enquiry is made in which any person who is entitled or required to attend before the Tax Recovery Officer may attend either in person or by any legal practitioner who is entitled to practice in any civil court in India. In any such proceeding, the Income-tax Officer also shall have the right of hearing either in person or by a representative. This is provided in Rule 62 of the Income-tax (Certificate Proceedings) Rules, 1962. We are also of opinion that an anterior preliminary enquiry prior to an order of attachment would result in mere duplication of the proceedings without any advantage to the parties because both the enquiries are for the purpose of finding out whether the real owner is the defaulter. A similar contention was advanced in a case relating to the initiation of penalty proceedings under Section 271 of the Income-tax Act in the decision in D. M. Manasvi v. Commissioner of Income-tax : [1972]86ITR557(SC) . The contention was that the Income-tax Officer before finally satisfying himself regarding the necessity of initiating proceedings for imposition of penalty and before issuing consequential notice should have issued another notice to the assessee and held a preliminary enquiry regarding the necessity of initiating the proceedings. The Supreme Court quoted with approval the following passage of the Judicial Committee in Commissioner of Income-tax v. Mahaliram Ramjidas, [1940] 8 I.T.R.,442 :

' Therefore, a construction of Section 34 which requires a quasi-judicial enquiry to be held before the powers under the section can be operated would result in mere duplication of procedure and in two enquiries of the same kind, into the same matter, conducted by the same official, and without any advantage to the parties. A construction so unreasonable and unpractical ought not to be preferred when another construction is open Accordingly, their Lordships are of opinion that the Income-tax Officer is not required by the section to convene the assessee, or to intimate to him the nature of the alleged escapement, or to give him an opportunity of being heard, before he decides to operate the powers conferred by the section.'

13. The Supreme Court further observed :

' ...what is contemplated by Sections 271 and 274 of the Act is that there should be prima facie satisfaction of the Income-tax Officer or the Appellate Assistant Commissioner in respect of the matters mentioned in Sub-section (1) before he hears the assessee or gives him an opportunity of being heard. The final conclusion on the point as to whether the requirements of Clauses (a), (b) and (c) of Section 271(1) have been satisfied would be reached only after the assessee has been heard or has been given a reasonable opportunity of being heard.'

14. In Wiseman v. Borneman, [1969] 3 All E.R, [1970] 75 LT.R. 652, , Lord Reid observed:

'It is, I think, not entirely irrelevant to have in mind that it is very unusual for there to be judicial determination of the question whether there is a prima facie case. Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.

Even where the decision is to be reached by a body acting judicially there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see the material against him.'

15. Again in Pedrlberg v. Varty, [1972] 2 All E.R. 6,11 ; [1972] 1 W.L.R. 534, the House of Lords observed :

'Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous construction of what that statute actually means in the context in which it was passed. It is true, of course, that the courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute accords him.'

16. The ratio of these decisions is clearly applicable to this case. As already stated, the rules do not contemplate any notice to the person who holds the property benami for the defaulter before the actual order of attachment is issued. The rules contemplate only a notice to the defaulter calling upon him to pay the amounts specified in the certificate of the Income-tax Officer within the specified time and intimating that in default steps would be taken to realise the amount under the Second Schedule. There is no dispute in this case that the defaulter was given such a notice. The final conclusion on the point as to whether the property was held benami for the defaulter would have to be reached only after the claimant and the department are heard in the enquiry under Rule 11. It is not disputed that the petitioners would get an opportunity for putting forward their claim in an enquiry under Rule 11. We, therefore, see no substance in this contention of the learned counsel for the petitioners.

17. In Writ Petition No. 801 of 1970, three trade marks bearing names. Maharajah (trade mark No. 105149), Maharajah Ring (trade mark No, 105150) and Sathukudi (trademark No. 105151) were attached asthe movable properties belonging to one Abdul Sathar Sahib for the recovery of tax arrears amounting to Rs. 2,09,105.56. The petitioner is the son of the said Abdul Sathar Sahib. It is alleged in the affidavit filed in support of the writ petition that the trade marks bearing the names. Maharajah and Maharaja King, belonged to a partnership called T.M. Abdul Rahim Sahib & Sons of which Abdul Sathar Sahib was a partner. On March 30, 1961, Abdul Sathar Sahib assigned his rights under the partnership along with his share in the trade marks, Maharajah and Maharajah Ring, to the petitioner and his brother. So far as these trade marks are concerned, though in the affidavit filed in support of the petition it was claimed that they are not attachable and saleable, probably in view of Sections 39 and 40 of the Trade and Merchandise Marks Act, the learned counsel for the petitioner did not want to advance any arguments and requested us to leave out of consideration his case relating to these two trade marks.

18. The trade mark bearing Sathukudi belonged to the said Abdul Sathar Sahib in his individual rights. He assigned the same under a registered document dated March 31, 3968, and the learned counsel for the petitioner also produced the order of the Registrar of Trade Marks registering the same in the name of the petitioner and issuing the trade marks in his name. In respect of this trade mark, in addition to the two grounds already considered by us, the learned counsel for the petitioner raised another contention that the assignment was true and valid and had been validly recognised by the Registrar of Trade Marks and that, therefore, it does not belong to the defaulter any more. But these facts were not brought to the notice of the Tax Recovery Officer. It may be that if the transfer was prior to the attachment, the claimant is entitled to succeed in this contention. It may be a case where the assignment was after service of notice under Rule 2 on the defaulter, in which case Rule 16 would be attracted. The Tax Recovery Officer has jurisdiction to enquire about the same. We do not find any reason to interfere with his order at this stage. The claimant would be entitled to produce all evidence before the Tax Recovery Officer and satisfy him that on the date of issue of notice under Rule 2, the defaulter had no interest in the trade mark.

19. For the foregoing reasons, the writ petitions are dismissed with costs; counsel's fee Rs. 1 50 in each of the writ petitions.


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