IN HIGH COURT OF JUDICATURE OF MADRAS DATED: 18.04.2017 CORAM: HONOURABLE MR.JUSTICE S.MANIKUMAR and HONOURABLE MR.JUSTICE D.KRISHNAKUMAR Writ Appeal No.95 of 2016 and C.M.P. No. 1111 of 2016 1. Tax Recovery Officer-I Company Range 1 Aayakar Bhavan No.121, Mahatma Gandhi Road Nungambakkam Chennai 600 034. ...Appellant/Respondent 1 -vs- 1. M/s. Sree Foundation rep. by its Partner Mr. Chimanlal 11, Ekambareshwar Agraharam Street Park Town, Chennai 600 003. ... Respondent 1/Petitioner 2. Sub Registrar No.11, Davidson Street Sowcarpet, Chennai 600 079. 3. M/s. Cosmo Foundation Limited Cosmo Nest No.16, Bank Street Halls Road, Kilpauk Chennai 600 010. ... Respondents 2 & 3 2 Writ Appeal filed under Clause 15 of Letters Patent, against order dated 13.10.2015 in W.P.No.12540 of 2013. For Appellant : Mr. T. Ravikumar For Respondent -1 : Mr. R. Gopinath Respondent-2 : Mr. N. Muralikumaran Respondent-3 : Mr. A. Thiyagarajan, Sr. Counsel for Mr. S.Nagarajan & Mr. S. Meenakshisundara Pandian JUDGMENT [Judgment of Court was made by D. KRISHNAKUMAR, J.] Before Writ Court, first respondent herein filed writ petition to issue writ of Mandamus, directing first respondent/ appellant herein, to remove charge and lift attachment created in respect of immovable property at Old No.510, New No.6 Mint Street, Sowcarpet, Chennai-79 and comprised in old Survey No.6072, 6073 and 6075 and re-survey No.602 measuring extent of 8 grounds and 1290 sq.ft. By order dated 13.10.2015, Writ Court allowed writ petition and lifted order of attachment, after considering 3 submissions of learned counsel for all parties. Challenging same, Department has filed instant Writ Appeal before this Court. 2. It is case of appellant that 3rd respondent Firm, M/s. Cosmo Foundation Limited, Chennai entered into agreement of sale with 1st respondent, M/s.Sree Foundation, Chennai, with respect to vacant land measuring 8 grounds and 1290 sq.ft., situated at Old No.510, New No.6 Mint Street, Sowcarpet, Chennai-79 and comprised in old Survey No.6072, 6073 and 6075 and re-survey No.602 and registered with Sub Registrar Office, Sowcarpet, under Document No.101 of 2010 on 20.01.2010. At time of agreement, there were only following two encumbrances over aforesaid property : a) Mortgage Deed registered in Document No.109/2007 dated 01.02.2007, and b) Mortgage Deed registered in Document No.883/2007 dated 28.08.2007 with M/s.Hitech Projects Private Limited. aforesaid mortgage and entire dues of third respondent were cleared by first respondent, from and out of sale consideration. Necessary receipts have been obtained from mortgagees, towards 4 clearance of dues. As first respondent purchaser paid entire sale consideration, third respondent handed over vacant possession and all original documents pertaining to subject property. Thereafter, Power of Attorney was executed in favour of writ petitioner/ first respondent and registered on 11.02.2010 to enable first respondent to execute and register sale deeds in their favour or in favour of their nominees, as and when required. supplement agreement of sale dated 18.02.2010 was also executed, evidencing all above stated facts. Therefore, according to writ petitioner/first respondent, entire sale transaction was completed on 18.02.2010 itself, as per Section 2(47) of Income Tax Act, 1961. writ petitioner/ first respondent and third respondent presented sale deed in Document No.87/2011 before Sub Registrar's Office, Sowcarpet, to be registered in favour of writ petitioner/ first respondent. But, said document was not registered by Sub Registrar, Sowcarpet. 3. Subsequent to presentation of sale deed documents before Sub Registrar Office, Sowcarpet, they came to know that appellant department had initiated action against third respondent, 5 under Section 147 of Income Tax Act, 1961 and order has also been passed by Assistant Commissioner of Income Tax, Company Circle I (3), Chennai on 31.12.2009, alleging that assessee has concealed taxable income, thereby calling upon third respondent to pay sum of Rs.1,63,08,463/- towards arrears of Income Tax for assessment year 2006-2007. On 08.04.2011, appellant department created charge and attached subject property, through intimation to second respondent stating that M/s. Cosmo Foundations Ltd./ third respondent, had failed to pay tax in time and therefore subject property is attached. writ petitioner/ first respondent herein filed writ petition, to issue writ of Mandamus, directing first respondent/ appellant herein, to remove charge and lift attachment created in respect of subject property. Learned counsel for appellant department submitted that writ petition is not at all maintainable, since proceedings dated 08.04.2011 was not challenged by writ petitioner/ first respondent. Department further submitted that even on merits of case, contention of writ petitioner/ first respondent is that entire sale transaction has been completed on 18.02.2010 itself and that they have become owner of said 6 property and only thereafter notice in Form No.57/ITCP-I dated 31.07.2010 was issued to third respondent M/s. Cosmo Foundations Limited, to pay sum of Rs.162.86 lakhs, within 15 days from date of receipt of said notice. said notice was duly served on third respondent. But, third respondent has failed to pay income tax dues to department, in time. Therefore, order of attachment was passed on 08.04.2011. 4. As per Section 281 of Income Tax Act, it is very clear that though during pendency of any proceedings under this Act or after completion thereof, but before service of notice under Rule 2 of II Schedule, any assessee creates charge on, or parts with possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by assessee as result of completion of said proceedings or otherwise; Provided that such charge or transfer shall not be void, if it is made for adequate consideration and without notice of pendency of such proceedings or, 7 as case may, without notice of such tax or other sum payable by assessee or with previous permission of Assessing Officer. Hence, action of appellant/ first respondent is valid in law. Further, it was informed to third respondent, by appellant/ first respondent vide their letter dated 03.05.2012, to pay entire arrears together with interest, in order to consider their request for lifting attachment of subject property. Whileso, writ petitioner/ first respondent made request to Revenue authority that property at No.512 Mint Street, measuring to extent of 8992 sq.ft. bearing RS No.600 comprised in Collector Certificate No.750 itself is sufficient to discharge tax arrears. But said request made by writ petitioner/ first respondent was not accepted by appellant department. Therefore, attachment was not lifted. Further, it is submitted that there was no sale deed registered on date of issuance of notice. Therefore, claim of writ petitioner/ first respondent that he is absolute owner of property is incorrect and cannot be accepted. Therefore, contention of writ petitioner/ first respondent is baseless and that same is liable to be dismissed. 8 5. According to learned counsel for writ petitioner/ first respondent, writ petitioner executed registered sale agreement with third respondent in Document No. 101/2010 before Sub Registrar, Sowcarpet towards purchase of scheduled property. writ petitioner/ first respondent has discharged all dues of third respondent. As per sale agreement, total sale consideration has been paid on following dates :- a) Rs.19,00,000/- paid by cheque No.589552 dated 20.01.2010 drawn on Bank of Baroda, Sowcarpet at time of execution and registration. b) Rs.5,50,00,000/- paid by Pay Order No.447004 dated 27.01.2010 issued by Bank of Baroda, Sowcarpet to discharge loan vide Mortgage Deed dated 28.08.2007 registered as Document No.883 of 2007. c) Rs.5,29,91,128/- paid by cheque No.589557 dated 30.01.2010 drawn on Bank of Baroda, Sowcarpet to discharge loan availed under Memorandum of Deposit of title deeds dated 01.02.2007 registered as Document No.109 of 2007. 9 d) Rs.1,08,872/- paid by cheque No.589558 dated 10.02.2010 drawn on Bank of Baroda, Sowcarpet. On receipt of total sale consideration amount of Rs.11 Crores and by virtue of Power of Attorney dated 11.02.2010, executed by third respondent, writ petitioner / first respondent became eligible to execute registered sale deed in their favour or his nominees, as and when required by them. Therefore, after completion of sale agreement on 18.02.2010, writ petitioner/ first respondent became absolute owner of subject property. 6. Learned counsel for writ petitioner/ first respondent further submitted that after span of one year, department has attached said property on 08.04.2011, which is illegal since property does not belong to third respondent. It is further submitted that writ petitioner / first respondent, on enquiry from third respondent, came to know that Income Tax Department initiated action against third respondent M/s. Cosmo Foundations Limited under Section 147 of Income Tax Act, 1961 and Assistant Commissioner of Income Tax, Company Circle I (3), Chennai has passed 10 order dated 31.12.2009 alleging that third respondent is liable to pay demand of Rs.1,63,08,463/- towards arrears of Income Tax for assessment year 2006-2007, and against aforesaid order of Assessment Officer, third respondent preferred appeal and same is pending before Commissioner of Income Tax. Further, it is submitted that factum was not disclosed to writ petitioner/ first respondent and third respondent had sold aforesaid property to them. writ petitioner/ first respondent is bonafide purchaser of said property. Therefore, writ petitioner/ first respondent should not be penalised for non-disclosure of said fact by third respondent. Even revenue records would reveal that there is no encumbrance, as issued by Sub Registrar, Sowcarpet, as on date of sale agreement. Hence, petitioner has filed writ petition for issuance of Writ of Mandamus, against appellant department. According to learned counsel for writ petitioner/ first respondent, third respondent is not owner of said property, for reason that entire sale consideration has been paid by writ petitioner/ first respondent and therefore first respondent firm is owner of 11 property and therefore order of appellant department is not binding and should be lifted. 7. Heard Mr. T. Ravikumar, learned counsel for appellant, Mr. R. Gopinath, learned counsel for first respondent, Mr. N. Muralikumaran learned counsel for second respondent and Mr. A. Thiyagarajan, Senior Counsel for third respondent and perused material available on records. 8. It is admitted fact that writ petitioner/ first respondent firm entered into agreement of sale dated 20.01.2010 and registered on file of Sub Registrar, Sowcarpet towards purchase of immovable property situated at Old No.510, New No.6 Mint Street, Sowcarpet, Chennai-79 and comprised in old Survey No.6072, 6073 and 6075 and re-survey No.602, from third respondent, namely, M/s Cosmo Foundations Limited. For discharge of mortgage dues to mortgagees, writ petitioner/ first respondent, from and out of sale consideration, has entered in sale agreement between them and had paid entire sale consideration, towards purchase of scheduled 12 property on various dates. On payment of sale consideration to third respondent, vacant land of subject property and all original documents pertaining to said property, was handed over by third respondent to writ petitioner/ first respondent. However, Power of Attorney dated 11.02.2010 was executed in favour of writ petitioner/ first respondent and registered as Document No.41/2010 on file of Sub Registrar, Sowcarpet to enable writ petitioner/ first respondent to register as and when required by them. Therefore, as per Section 2(47) of Income Tax Act, 1961 entire sale transaction was completed on 18.02.2010 and writ petitioner/ first respondent has become owner of aforesaid property. Section 2(47) of Income Tax Act, 1961 is extracted below :- (47) "transfer", in relation to capital asset, includes, (i) sale, exchange or relinquishment of asset ; or (ii) extinguishment of any rights therein ; or 13 (iii) compulsory acquisition thereof under any law ; or (iv) in case where asset is converted by owner thereof into, or is treated by him as, stock-in- trade of business carried on by him, such conversion or treatment ; or (iva) maturity or redemption of zero coupon bond; or (v) any transaction involving allowing of possession of any immovable property to be taken or retained in part performance of contract of nature referred to in section 53A of Transfer of Property Act, 1882 (4 of 1882) ; or (vi) any transaction (whether by way of becoming member of, or acquiring shares in, co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any 14 other manner whatsoever) which has effect of transferring, or enabling enjoyment of, any immovable property. Explanation 1. For purposes of sub-clauses (v) and (vi), "immovable property" shall have same meaning as in clause (d) of section 269UA. Explanation 2. For removal of doubts, it is hereby clarified that "transfer" includes and shall be deemed to have always included disposing of or parting with asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from transfer of share or shares of company registered or incorporated outside India; 15 9. Subsequently, Commissioner of Income Tax, passed order dated 11.06.2014, revising assessment order and computing final demand payable as Rs.10,50,259/- inclusive of interest under Section 234 B & 234 C. said amount was paid by third respondent on 02.01.2015. decision of Hon'ble Supreme Court rendered in case of Mysore Minerals Ltd., vs. CIT reported in 1999 (1) Supp. SCR 192), wherein it has been held that person who had taken possession and made payment of consideration, was owner though he had not obtained deed of conveyance. In case on hand, writ petitioner/ first respondent having purchased property under question, by paying entire sale consideration became absolute owner of property in question. Calcutta High Court in case of Electro Zavod (India) Pvt. Ltd., vs. Commissioner of Income Tax & anr. reported in (2005) 199 CTR Cal.612, has held that on date of passing order of attachment, property in question did not belong to assessee and on that date, there was no interest because such interest has already been passed on to petitioner therein and accordingly, held that order of attachment of 16 property claimed and held by petitioner was not sustainable under law. Taking into consideration subsequent orders passed by Commissioner of Income Tax, appeal filed by Revenue before Income Tax Appellate Tribunal and decisions cited supra, Writ Court disposed of writ petition with following observations :- 14. Since 3rd respondent failed to pay dues to department on time, property in question has been attached. In proceedings between Department and 3rd respondent, tax liability was reduced by CIT (Appeals) and same was also paid by 3rd respondent. By virtue of completion of entire sale transaction and registration of same, petitioner became absolute owner of property in question. While so and when 3rd respondent was not owner of property and when on date of passing order of attachment, property in question did not belong to assessee, namely, 3rd respondent, 17 attachment of property in question, which has been in absolute possession and enjoyment of petitioner by virtue of completion of entire sale transaction, made by 1st respondent for dues payable by 3rd respondent, is not binding on petitioner and hence, unsustainable and accordingly, impugned attachment has to be lifted and consequently, sale deed has to be released, after numbering same. If at all 1st respondent can proceed on other property of 3rd respondent for tax liabilities if any payable by 3rd respondent. 15. In view of discussions and reasons and in light of decisions cited supra, impugned attachment of property in question is directed to be lifted forthwith and concerned Registering Authority is directed to number impugned sale deed executed in respect of property in question and release sale 18 deed, if it is otherwise in order. However, it is open to 1st respondent Department to proceed against other property of 3rd respondent for tax dues if any payable by 3rd respondent, in accordance with law, by keeping attachment of other property, pending disposal of appeal preferred by 3rd respondent as well as 1st respondent. 10. writ petitioner/ first respondent herein, filed above writ petition, after coming to know about notice issued by appellant department to third respondent on 08.04.2011, intimating that third respondent, namely, M/s. Cosmo Foundations Limited had failed to pay dues to department in time and property being attached for demand payable to department, as per assessment order issued by appellant department. order of attachment of subject property dated 05.08.2010 issued by Tax Recovery Officer, Chennai to third respondent under sub-section (1) of Section 222 of Income Tax Act, 1961 prohibiting transferring or 19 charging subject property, has been received on 08.04.2011 by Sub Registrar, Sowcarpet. said notice in Form No.1 T.C.P 16 was not challenged by writ petitioner in above said writ petition. According to this Court, said writ petition is not maintainable for not challenging order of attachment dated 05.08.2010. According to writ petitioner, he is bonafide purchaser of subject property and that said factum of proceedings initiated by Assessing Officer for demand of tax against third respondent by various proceedings was not disclosed. He further submitted that as per sale agreement entered between third and first respondent, entire sale consideration was paid to third respondent vendor and said vendor had handed over property to writ petitioner/ first respondent. Hence, he has become owner of subject property. Section 281 of Income Tax Act, reads as follows :- (1) Where during pendency of any proceedings under this Act or after completion thereof, but before service of notice under rule 2 of Second Schedule any assessee creates charge on, or parts with possession (by 20 way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by assessee as result of completion of said proceedings or otherwise; Provided that such charge or transfer shall not be void, if it is made : 1. For adequate consideration and without notice of pendency of such proceedings or, as case may, without notice of such tax or other sum payable by assessee or with previous permission of (Assessing) Officer. 2. This Section applies to cases where amount of tax or other sum payable or likely to be payable exceeds five thousand rupees and assets charged or transferred exceed ten thousand rupees in value. 21 As per above said proviso, it is clear that any assessee creates charge, or parts with possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by assessee as result of completion of said proceedings. Against third respondent, assessee, department has initiated proceedings. Therefore, Section 281 of Act provides for certain transfers during pendency of any proceedings. 11. As far as instant case is concerned, sale of property as defined under Transfer of Property Act, 1882, was not completed at time of order of Attachment was issued by appellant department. At that time, only sale agreement was entered into between parties. contention of writ petitioner/ first respondent that entire sale consideration was paid to third respondent and relevant documents have been handed over to writ petitioner/ first respondent by third respondent, would itself be sufficient to show that writ petitioner/ first respondent is deemed to 22 be owner of subject property. If there is any sale of immovable property, Transfer of Property Act, would apply. On perusal of sale agreement, under Clause 11 of Agreement, vendor has declared as follows :- 11. Vendor declares that they have absolute marketable title over said property and there are no charges, liens, lis pendences, attachments, mortgages, acquisition proceedings or otherwise over said property except encumbrance mentioned in clause 6 above and Vendor have not entered into any agreement of sale of said property with anyone else. vendor undertakes to indemnify purchaser against breach of this declaration. Therefore, above said clause shows that for any charges against vendor, namely, M/s. Cosmo Foundations Limited, third respondent herein, vendor is liable for same. writ petitioner/ first respondent is not owner of property as on date of order of 23 attachment issued by appellant department. third respondent who is vendor, is owner of subject property. 12. appellant department relied upon decision in case of Suraj Lamp and Industries Pvt. Ltd., vs. State of Haryana and anr. vs. [2012] 340 ITR 1 (SC), wherein Hon'ble Supreme Court, referring to case of Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004] 8 SCC 614, has observed that transfer of immovable property by way of sale can only be by sale deed and in absence of deed, no right, title or interest in immovable property can be transferred. Paragraphs 17 to 21 are extracted below :- 17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held (page 619): "Protection provided under Section 53A of Act to proposed transferee is shield only against transferor. It disentitles transferor from disturbing possession of proposed transferee who is put in possession in pursuance to such agreement. It has nothing to do with ownership of 24 proposed transferor who remains full owner of property till it is legally conveyed by executing registered sale deed in favour of transferee. Such right to protect possession against proposed vendor cannot be pressed in service against third party." 18. It is thus clear that transfer of immoveable property by way of sale can only be by deed of conveyance (sale deed). In absence of deed of conveyance (duly stamped and registered as required by law), no right, title or interest in immoveable property can be transferred. 19. Any contract of sale (agreement to sell) which is not registered deed of conveyance (deed of sale) would fall short of requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in immovable property (except to limited right granted under section 53A of TP Act). According to TP Act, agreement of sale, whether with possession or 25 without possession, is not conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by registered instrument and agreement of sale does not create any interest or charge on its subject matter. Scope of Power of Attorney : 20. power of attorney is not instrument of transfer in regard to any right, title or interest in immovable property. power of attorney is creation of agency whereby grantor authorizes grantee to do acts specified therein, on behalf of grantor, which when executed will be binding on grantor as if done by him (see section 1A and section 2 of Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in manner known to law. Even irrevocable attorney does not have effect of transferring title to grantee. 26 In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held : "A grant of power of attorney is essentially governed by Chapter X of Contract Act. By reason of deed of power of attorney, agent is formally appointed to act for principal in one transaction or series of transactions or to manage affairs of principal generally conferring necessary authority upon another person. deed of power of attorney is executed by principal in favour of agent. agent derives right to use his name and all acts, deeds and things done by him and subject to limitations contained in said deed, same shall be read as if done by donor. power of attorney is, as is well known, document of convenience. Execution of power of attorney in terms of provisions of Contract Act as also Powers-of-Attorney Act is valid. power of attorney, we have noticed hereinbefore, is executed by donor so as to enable donee to act on his behalf. Except in cases 27 where power of attorney is coupled with interest, it is revocable. donee in exercise of his power under such power of attorney only acts in place of donor subject of course to powers granted to him by reason thereof. He cannot use power of attorney for his own benefit. He acts in fiduciary capacity. Any act of infidelity or breach of trust is matter between donor and donee." 21. attorney holder may however execute deed of conveyance in exercise of power granted under power of attorney and convey title on behalf of grantor. 13. Therefore, as per provisions of Act, unless property is transferred in name of purchaser, writ petitioner herein cannot claim that he is owner of property. Hence, writ petitioner has no locus standi to question order of attachment in present appeal, as writ petitioner is not owner of property and vendor who is assessee cannot question order of attachment. 28 14. In support of contention, learned counsel for writ petitioner/ first respondent relied on following decisions :- 1. Decision of Division Bench of Allahabad High Court in case of Raghuram Grah P. Ltd. & anr. vs. Income Tax Officer & Ors. Reported in (2006) 281 ITR 147 (AH), wherein it is held that documents seized by Central Excise Department and also requisitioned by Income Tax Department did not relate to business activities of either of petitioners. As matter of fact, enquiries on basis of these documents were directed by Department against certain persons other than petitioners. action of Department in provisionally attaching bank accounts of petitioner under Section 281B of Act by impugned order and its extension by Commissioner were unwarranted in law and were liable to be quashed. In instant case, property does not belong to writ petitioner/ first respondent and therefore decision relied above, is not relevant to facts of present case. 2. In decision of Gwalior Bench of Madhya Pradesh High Court in case of OM Prakash Gupta & Ors., vs. Income Tax Officer, 29 Ward 1, Gwalior & Ors., reported in 251 ITR 714, it is held that since assessment proceedings were pending it would be appropriate that assessing authority pass orders for releasing property from attachment on taking bank guarantee from petitioners for sum which may become due against petitioners when assessment was made. In present case on hand, assessee has not made any application before concerned authority for releasing property from attachment by furnishing bank guarantee for payment to be made, to appellant department. 3. In other decision in case of KDH Properties P. Ltd., vs. Assistant Commissioner of Income Tax & Ors., reported in (2013) 356 ITR 1 (Mad.), this Court has held that if petitioner were able to establish valuation of property as stated, by cogent and proper materials acceptable to Department subject to final assessment, property could continue to be under provisional attachment as per section 281B and all other debts and security deposits due from third parties could be released from provisional attachment. In case on hand, writ petitioner is 30 only agreement holder and is not owner of property as stated in earlier paragraph. Hence, this decision would not apply to facts of this case. 4. In case of Gandhi Trading vs. Assistant Commissioner of Income Tax & Ors., reported in 239 ITR 337, Division Bench of Bombay High Court has held that two properties of assessee, which have been attached under Section 281B of Act, having been valued even by departmental valuer at Rs.2.66 crores against anticipated liability of Rs.2.68 crores there was no justification for allowing continuation of attachment on bank accounts and FDRs. In instant case, assessee has not challenged order of attachment. Further, decision relied by writ petitioner/ first respondent would not apply to facts, where immovable properties were not attached to department and that it was only bank accounts and FDRs as stated in above said judgment. 5. In case of Karsanbhai Gandabhai Patel vs. Tax Recovery Officer, reported in (2014) 362 ITR 374 (Guj), Division Bench of Gujarat High Court has passed order. facts of case is 31 petitioners in above said case purchased different units in constructed building and construction was completed in year 1991-1992. petitioners took respective shops in said building and they were put in possession in year 1992. Tax Recovery Officer, Mumbai attached said property on May 22, 1995 and by order dated 08.11.2005 Tax Recovery Officer declared all sales mentioned therein including those in favour of petitioners therein as void in terms of Section 281 of Act. Holding sales transaction as void by Tax Recovery Officer, was subject matter in that case. Gujarat High Court held that by allowing petition Revenue cannot proceed with auction sale of properties under attachment to recover dues of defaulter, and that there is no power to declare sale transactions as void and that only civil suit would lie, under Income Tax Act 1961. However, aforesaid decision would not apply to facts of present case. 6. decision of Hon'ble Supreme Court in case of Sanjeev Lal & Ors. vs. Commissioner of Income Tax, Chandigarh & anr., reported in (2015) 5 SCC 775, relates to interpretation of 32 definition of term transfer as defined under Section 2(47) for purpose of allowing benefit under Section 54 of Income Tax Act, 1961, to assessee. But so far as present case is concerned, under provisions of Section 281 of Act, it deals with certain charge or transfers to be void under Chapter XIII of Income Tax Act. Here, sale deed was not registered nor title is fixed. Hence, decisions of Hon'ble Supreme Court cited supra, is not relevant to case on hand. 7. other decisions relied on by writ petitioner/ first respondent are, case of Blue Star Limited vs. Union of India, reported in 2009 SCC Online Bombay 1632 by Bombay High Court ; Surrendra Overseas Limited vs. Commissioner of Income Tax, West Bengal, reported in 120 ITR 872, passed by Division Bench of Calcutta High Court ; and decision of Division Bench of Gujarat High Court in case of Saheli Synthetics P. Ltd., vs. Commissioner of Income Tax, reported in 302 ITR 126 ; However, said decisions also would not apply to facts of instant case. 33 15. During course of arguments, it is brought to notice of this Court, order passed by Income Tax Appellate Tribunal dated 31.12.2015 in appeal preferred by appellant department, in ITA No.1469/Mds/2014. relevant portion in paragraph 5, of order passed by Tribunal is extracted below :- 5. We have heard both sides and perused material on record. As per sale deed of property dated 17th March 2006 sale consideration was Rs.5.6 crores. As per sale deed Smt.Vimalamma received full sale consideration of Rs.5.6 crores and there was no mention about allotment of share in lieu of share consideration. Further, on few occasions, she narrated in earlier para that she had denied making any investment in assessee company. However, Commissioner of Income Tax (Appeals) gave finding that Rs.2.85 crores was made as investment by Smt. Vimalamma. In our opinion, assessee shall furnish all details to prove transaction. onus to prove 34 identity, credit worthiness and genuineness of transaction is on assessee as entire facts are in her knowledge. Mere production of confirmation letter from Smt.Vimalamma is not sufficient in this case. She has given different statements at different stages. We do not know whether she is truthful and honest to disclose correct fact. Being so, her statements are not reliable when surrounding and attending facts brought on record by A.O indicate and reflect paper work and documentation. But genuineness, creditworthiness and identity are deeper, it shall require to be established by documents. Being so, Commissioner of Income Tax (Appeals) has taken just cursory look at entire things and deleted addition which is improper. Hence, matter is remitted back to file of Assessing Officer for conducting detailed inquiry and decide issue afresh. assessee has to file bank account details of Smt.Vimalamma to prove 35 transaction. appeal of Revenue is partly allowed for statistical purposes. 16. Therefore, it is clear from aforesaid decision of Hon'ble Supreme Court that transfer of immovable property can only be, by way of sale deed. In absence of deed of conveyance, duly stamped and registered, no right, title or interest in immovable property can be transferred. However, contention of writ petitioner/ first respondent that he is deemed to be owner of property cannot be accepted in light of Transfer of Property Act and as per law laid down in decision of Hon'ble Supreme Court, cited supra. 18. In light of decisions rendered by Hon'ble Supreme Court cited supra, order passed by Tribunal, cannot be accepted. 19. Based on above facts and circumstances of case and considering decisions cited supra, order passed by writ 36 court is set aside and Writ Appeal filed by Revenue is allowed. Consequently, connected Miscellaneous Petition is closed. No costs. [S.M.K., J.] [D.K.K., J.] 18.04.2017 Index: Yes/No avr S.MANIKUMAR, J., and 37 D.KRISHNAKUMAR, J., avr Writ Appeal No.95 of 2016 and C.M.P. No. 1111 of 2016 18.04.2017 http://www.judis.nic.in Tax Recovery Officer, Company Range 1, Chennai v. Sree Foundation