THE HON BLE SRI JUSTICE V. RAMASUBRAMANIAN AND HON BLE MS. JUSTICE J. UMA DEVI WRIT PETITION Nos.17822 & 36496 of 2016 Between: Smt. Uppada Sarvani, W/o. Sri Uppada Balaji Mohan Rao D.No.39-18-67/3, Seethanna Gardens, Madhavadara, Visakhapatnam, Visakhapatnam District. PETITIONER And 1. Income Tax Officer, Ward 4(2), Visakhapatnam. 2. Station House Officer, Air Port Zone, Kancharlapalem, Visakhapatnam. RESPONSENTS Counsel for Petitioner: Mr. P. Vasudeva Reddy (in W.P.No.17822/2016) Counsel for Petitioner: Mr. Shaik Jeelani Basha (in W.P.No.36496/2016) Counsel for respondent: Mr. K. Raji Reddy (Senior Standing Counsel for Department) Court made following order: 2 VRS,J & JUD,J. W.P.Nos.17822 & 36496/2016 HON BLE SRI JUSTICE V. RAMASUBRAMANIAN AND HON BLE MS. JUSTICE J. UMA DEVI WRIT PETITION Nos.17822 & 36496 of 2016 COMMON ORDER: (Per Hon ble Sri Justice V. Ramasubramanian) Some times truth is stranger than fiction and case on hand falls under that category. petitioner in both these writ petitions has come up with challenge to order passed under Section 143(3) read with Section 147 of Income Tax Act, 1961 in first writ petition and against penalty proceedings under Section 271 (1) (c) in second writ petition. 2. Heard Mr. P. Vasudeva Reddy and Mr. Shaik Jeelani Basha learned counsel for petitioner in respective writ petitions and Mr. K. Raji Reddy, learned Senior Standing Counsel for Department. 3. Sans unnecessary details, case of petitioner is that she was not owner of property bearing Plot No.1 in Old S.No.2/1B situated at Madhavadhara Village within limits of Greater Visakhapatnam Municipal Corporation, measuring extent of about 551 Sq. yards, which became subject matter of sale under registered sale deed dated 26.12.2007. But since sale deed was executed in name of petitioner herein, assessing officer initiated proceedings on ground that she had sold immovable property whose market value was Rs.59,51,000/-, for stated sale consideration of Rs.30,00,000/- and that therefore petitioner was liable to pay Capital Gains tax. 4. case of petitioner is one of total denial. In simple words, petitioner s case is that she was not owner of property 3 VRS,J & JUD,J. W.P.Nos.17822 & 36496/2016 covered under sale deed dated 26.12.2007; that she never signed such sale deed and that therefore upon coming to know of same she has already lodged police complaint. 5. But case of respondent-department is that name of petitioner, her father s name and other particulars tally with those mentioned in sale deed and that petitioner had inherited property from her father under gift settlement deed dated 30.09.1982. 6. It is true that personal particulars of petitioner found in disputed document tallies with real particulars. But at least insofar as second contention of Department is concerned description of properties do not tally. For purpose of easy appreciation, we present in tabular column, description of property found in gift settlement deed dated 30.09.1982 executed by petitioner s father in her favour and description of property found in disputed sale deed dated 26.12.2007 as follows: Description of property in Description of property found in admitted document, viz., Gift disputed document, viz., sale deed Settlement Deed, dt.30.09.1982 dated 26.12.2007. Visakhapatnam Sub Registry, All site measuring 551 sq. yds or Visakhapatnam Municipal Area, 460.63 sq. mts., bearing Plot No.1 Madhavadhara village covered by Covered by Old S.No.2/1B situated at Survey No.33/1 admeasuring 240 Madhavadhara with in limits of sq. yds. Or 200-668 sq. mts. Of site Greater Visakhapatnam Municipal together with thatched house Corporation of in Registration Sub- thereon bearing Door No.39-6-6 District of Dwarakanagar, in Municipal Assessment No.35437 Registration District of Visakhapantam and bounded by: and bounded by East: 15 feet wide road East: 30 feet wide road. South: House belongs to Sanapala South: Plot No.2 of B. Veeraswamy Mutyam Naidu. West: House belongs to Duppala West: Plot No.18 of B. Bhagyalakshmi Aruna North: Site in S.No.275 North: 30 feet wide road. 4 VRS,J & JUD,J. W.P.Nos.17822 & 36496/2016 Measurements: Measurements: East wing: 60 feet or 18.29 mts. East wing: 41.25 feet or 12.57 mts. South wing: 36 feet or 10.97 mts. South wing: 94 feet or 28.65 mts., West wing: 60 feet or 18.29 mts. North wing: 36 feet or 10.97 mts. West Wing:57.63 feet or 17.56 mts. North wing: 106.05 feet or 32.46 mts. above bounden measured property is Gift Settlement property and handed over today This is not assigned property. itself by free of consideration. This is not assigned land. Market value of property is Rs.13,000/- House Tax Receipt relating to this property is herewith-filed. 7. person, who got land of extent of 240 sq. yds., under gift settlement deed dated 30.09.1982, could not have sold land of extent of 551 sq. yds., under disputed sale deed of year 2007. Therefore, on basis of gift settlement deed it is not possible to link petitioner with sale deed in question. 8. Admittedly, petitioner has lodged police complaint that her name has been misused in document in respect of property of which she is not owner. Therefore, matter requires further detail prob. 9. Assuming that petitioner has played fraud upon Income Tax Department after having sold property, best way of exposing such fraud would be to bring property disowned by her to sale. It is true that property has now passed on to several hands. But once notices are issued to all purchasers including one under disputed document, truth will come out. Till then, it is not possible to tax petitioner. Therefore writ petitions are allowed and impugned orders are set aside. It is open to department to initiate proceedings against property after serving notices on all persons through whom title to property has passed on. 5 VRS,J & JUD,J. W.P.Nos.17822 & 36496/2016 10. As sequel, pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs. JUSTICE V. RAMASUBRAMANIAN JUSTICE J. UMA DEVI 6th April, 2017 Js. 6 VRS,J & JUD,J. W.P.Nos.17822 & 36496/2016 HON BLE SRI JUSTICE V. RAMASUBRAMANIAN AND HON BLE MS. JUSTICE J. UMA DEVI WRIT PETITION Nos.17822 & 36496 of 2016 Date: 06-04-2017 Js. Uppada Sarvani v. Income-tax Officer, Ward 4(2), Visakhapatnam/ Station House Officer, Visakhapatnam