S. Subramanian vs Commissioner of Income Tax and Others

P.D. Dinakaran, J.—In W.P. No. 45311 of 2002, the petitioner- seeks a writ of mandamus to direct the first respondent to lift the

provisional attachment made u/s 281B of the IT Act only to the extent of 45 per cent of the undivided land of the petitioner at No. 1, Crescent

Park Street, T. Nagar, Chennai 600017, in lieu of the 55 per cent of the constructed area in the said land which would continue to remain under

attachment and further direct the first respondent to permit the petitioner to dispose of the constructed flats in the said land at Crescent Park Street,

T. Nagar Chennai 17, only to the extent to pay the admitted tax due of Rs. 1,51,99,834.

Pending the above writ petition, the petitioner, in WPMP No. 66213 of 2002, seeks a direction to the IT Department, particularly the first

respondent herein to release the 45 per cent of the undivided share in the land at Crescent Park Street, T. Nagar, Chennai in lieu of 55 per cent of

the constructed area.

The contention of the petitioner is that the IT authority, viz., respondents 1 and 2 are entitled to attach the definite shares of the petitioner alone,

but not that of the others with respect of the property at No. 11, Crescent Park Street, T. Nagar, Chennai 17. In other words, Mr. R.

Krishnamurthy, learned senior counsel appearing for the petitioner states that the petitioner has got only 55 per cent of the undivided constructed

area at No. 11, Crescent Park Street, T. Nagar, Chennai 17, and he has no objection to attach the said definite share of the petitioner.

In support of his argument, the learned senior counsel produced a family arrangement dt. 6th March, 2003, entered into between the members

of the petitioner''s family wherein a definite share is allotted to the petitioner. Out of all that piece and parcel of undivided share of land of the extent

of about 6,442 sq. ft. Out of the total extent of 19,328 sq. ft. together with the flats in Block A, namely flat 1 to 8 in the front block facing the road

and two flats in the first floor in the rear side including respective 10 car parking in the ground floor, in the property, namely, ''A'' Block bearing

Municipal Old Door No. 21, Crescent Park Street, T. Nagar, Chennai 17, comprised of old survey No. 130/1A, 1B, 130/2, 130/3, T.S. No.

6342/2, 6342/3, 6342/8 situated in the registration sub-district of T. Nagar and the registration district of Chennai Central.

The learned counsel appearing for respondents 1 and 2 contends that the interest of the Income Tax will be protected if the definite shares

allotted to the petitioner, viz., the building and the land located at No. 11, Cresent Park Street, T. Nagar, Chennai 17, is attached.

In my considered opinion, there cannot be any valid objection to lift the provisional attachment releasing 45 per cent of the undivided share of

the building and land at No. 11, Crescent Park Street, T. Nagar, Chennai 17,which does not belong to the petitioner, and to confine the

attachment only with respect to the petitioner''s definite share viz, the building and the land located at No. 11, Crescent Park Street, T. Nagar,

Chennai 17, which flows from the family arrangement dt. 6th March, 2003. Hence, suffice it to direct the second respondent to hold an enquiry,

after giving fair and reasonable opportunity to the petitioner and other members of the family, who are parties to the family arrangement dt. 6th

March, 2003, as well as the fourth respondent, and to ascertain the actual undivided 55 per cent of the share in the building and land at No. 11,

Crescent Park Street, T. Nagar, Chennai 17, allotted to the petitioner and to identify the same, if necessary after inspecting the property itself and

to release the remaining 45 per cent of the undivided share allotted to the third respondent, with respect to which respondents 1 and 2 cannot have

any claim, and pass appropriate orders within four weeks from the date of receipt of a copy of this order. Any order made by the IT authorities,

viz., respondents 1 and 2, in this regard, will not be quoted against the interest of the State, viz., the third respondent or that of the depositors in

any other proceedings which are pending against the petitioner.