2001 PLP 160 (PTD)

Rule. Heard learned counsel for the parties. In this petition, the petitioner challenges the attachment of her property for recovering the dues of the firm, Komal Tea Co. of which she is not a partner. Her husband is a partner in Komal Tea Co. and the property which is attached is acquired by the petitioner from her own resources, by disposing of other properties owned by her and which has already been subjected to tax as her property in the past. Notwithstanding pointing out these facts to the Assessing Officer he instead of deciding the objection against the attachment of the property has directed the Recovery Officer to recover the dues of the firm in respect of which at best her husband can be made liable and for which property of her husband can be attached, by proceeding against the property of the petitioner. The case of the respondent is that the petitioner has no ostensible source of income from which the property could have been acquired by her and, therefore, the properties under attachment are held by her as benami for her husband. We are constrained to say that the concerned Income‑tax Officer in exercise of his jurisdiction under the Act has failed to draw a distinction between his role as a prosecutor and as an adjudicator. As a prosecutor he is entitled to hold a belief which must be prima facie founded on some material and initiate proceedings on that basis. That would justify his initial action of directing attachment of the petitioner's property considering it to be held by her as benami for her husband for the purpose of recovering arrears from Komal Tea Co. of which her husband was a partner. However, in doing so, he is not absolved from the duty to act fairly. Such belief cannot be a mere pretence. Our constitution envisages freedom of the individual, equal protection of law and forbids discrimination on the ground of sex. A female has as much independent status and right to hold property in her own right as a male has. Merely because one is female, and wife of some one, it will be unreasonable to draw any inference that she holds any property as benami for her husband in the absence of any other material. In this case, on the one hand, the petitioner has pointed out the properties held by her before acquiring of the property in question and which provided the source of acquisition of the property in question and that her capital sources have already been the subject‑matter of taxation earlier. In the face of this assertion, it becomes all the more necessary that before proceeding against the property of the petitioner, the Recovery Officer has some material, except the bald assertion that she does not have ostensible means to acquire the property, to make good his assertions. The Tax Recovery Officer instead of examining the objection intends to proceed with recovery of the arrears of the firm from the property in question. When objection to the attachment was raised on the ground that the property in fact belonged to the present petitioner which has been acquired by her from her own resources it became the bounden duty of the Assessing Officer as adjudicator to adjudicate that objection of the petitioner objectively and then to proceed in accordance with the finding arrived at on such adjudication. That adjudication would have given the right to further remedy by way of appeal or revision as the case may be to the petitioner if she were aggrieved by that. Abandoning that procedure and carrying on with recovery proceedings cannot be allowed. The petition is, therefore, allowed. The respondent Assessing Officer/Tax Recovery Officer is directed in the first instance to determine the objection of the petitioner as to the availability of the property in question to be attached for recovery of arrears of Komal Tea Co. of which she is not a partner before proceeding further with recovery in pursuance of the attachment made by the Tax Recovery Officer. Rule made absolute. There shall be no order as to costs. M.B.A./109/FC?????????? Rule made absolute.