Judgment:
Sunanda Bhandare, J.
1. Respondents Nos. 5 and 6 were indebted to the petitioner-bank for a sum of Rs. 2,21,000 in respect of certain accounts opened by them in the Connaught Place branch of the petitioner-bank. Since respondent No. 6 had created an equitable mortgage in favor of the petitioner bank by deposit of title deeds of immovable property belonging to her and situated at S-72, Greater Kailash, New Delhi, the bank filed a suit against respondents Nos. 5 and 6 for realisation of the bank's dues by sale of this property. This court, vide order dated September 6, 1972, passed a preliminary decree against respondents Nos. 5 and 6 for payment of the mortgaged amount with interest thereon and costs of the suit within 6 months of the date of the decree. Since respondents Nos. 5 and 6 failed to pay the decretal amount within six months, the bank moved this court for a final decree for the sale of the mortgaged property and this court on May 21, 1973, passed a final decree directing the mortgaged property to be sold and the sale proceeds to be applied for the payment of the decretal amount. An execution application was filed by the petitioner on August 1, 1973, for execution of the final decree dated May 21, 1973, by sale of the mortgaged property. In the meanwhile, on December 4, 1973, respondent No. 4 addressed a letter to the petitioner-bank stating therein that a huge demand of income-tax was outstanding against respondent No. 5 and, thereforee, the property bearing No. S-72, Greater Kailash, New Delhi, was attached on July 8, 1973, as per Income-tax Certificate Proceedings Rules and that the sale proclamation of the said property had been drawn up and an auction sale had been fixed for December 31, 1973. The petitioner-bank was, thereforee, asked by the income-tax authorities to lodge its claim, if any, with respondent No. 4 with necessary evidence. The petitioner-bank objected to this notice and asserted that the property in question exclusively belonged to respondent No.6 and hence the property in question was not liable to be attached by the income-tax authorities for income-tax dues of respondent No. 5. However, on December 11, 1973, by the impugned order, respondent No. 4 for the reasons stated therein, held that the bank's objections were not maintainable because, though the property was in the name of respondent No. 6, it actually belonged to respondent No. 5 and respondent No. 6 was only a benamidar.
2. Learned counsel for the petitioner submitted that the petitioner who is a secured creditor had a first charge over this property because this property was mortgaged to the petitioner and it was further submitted that, in any event, the Tax Recovery Officer had wrongly held that the property belonged to respondent No. 5 and respondent No. 6 was only a benamidar. Learned counsel further submitted that, even otherwise, if it is held that the property was actually held by respondent No. 6 as a benamidar, from the Explanationn inserted in the year 1975 to section 1975 to section 222(1) of the Income-tax Act, 1961, it was clear that only transfer without consideration prior to June 1, 1973, could be attached by the Tax Recovery Officer. Learned counsel also relied on the judgment of the Supreme Court in Kapur Chand Shrimal v. TRO : [1969]72ITR623(SC) .
3. On the other hand, learned counsel for respondents Nos. 3 and 4 asserted that the notice of demand was sent prior to the mortgage created by respondents Nos. 5 and 6 in favor of the bank, and, thereforee, the Explanationn and the judgment of the Supreme Court in Kapur Chand's case : [1969]72ITR623(SC) , was of no assistance to the petitioner. It was, however, not disputed that the Tax Recovery Officer could only make the recovery from the assessed and no one else. Learned counsel, however, stated that the Tax Recovery Officer could investigate and find out whether the property belonged to respondent No. 5 or 6 and if he found that in fact it belonged to respondent No. 5 and respondent No. 6 was only a benamidar, he could attach the property.
4. I do not think that for deciding the present petition it is necessary for me to determine the extent of power of the Tax Recovery Officer to investigate the ownership of a property belonging to an assessed because from a perusal of the impugned order, I find that though the onus to prove that the property was held benami is on the income-tax authorities, the Tax Recovery Officer has not brought on record any evidence to show that the property was held by respondent No. 6 only as a benamidar. The only reason given by the Tax Recovery Officer for coming to the conclusion that the property is held by respondent No. 6 as a benamidar is that she did not choose to appear or requested that she may be given time to consult her husband, i.e., respondent No. 5. There is nothing on record to indicate that respondents Nos. 3 and 4 were in possession of any other evidence to show that respondent No. 6 was the benamidar of respondent No. 5 and, thereforee, I find that this finding of the Tax Recovery Officer cannot be sustained. That being the position, it has to be held that the property in question in fact belonged to respondent No. 6 and not to respondent No. 5 and respondents No. 3 and 4 could not attach the same for recovery of income-tax dues of respondent No. 5. Since the petitioner bank had obtained a decree against respondent No. 6, the bank could of course recover this amount by the sale of the property of respondent No. 6.
5. In the result, the petition is allowed. The impugned order dated December 11, 1973, is quashed. There will be no order as to costs.