T.H.B. Chalapathi, J. - (1.) THE petitioner, an income-tax assessee, became a member of the Cozihom Co-operative Housing Society Limited, Pali Hill, Bombay, and purchased certain shares in his name. In lieu of the same, he was given possession of a Flat No. 82-B. As per the bye-laws of the society on transfer of the shares held by the member, the possession and ownership of the flat also stand transferred to the transferee. In September, 1988, the petitioner transferred the shares in the name of his wife and, consequently, the flat also stands transferred in her name. At the time of transfer of the shares by the petitioner in the name of his wife certain assessment proceedings were pending for various years, i.e., from 1978-79 to 1987-88. THErefore, the Deputy Commissioner of Income-tax, Special Range, Jalandhar, passed an order dated December 4, 1991, under Section 281 of the Income-tax Act, 1961, holding the sale of the property, flat No. 82-B, Cozihom Co-op. Housing Society Limited, Pali Hill, Bombay, void in view of Section 281 of the Income-tax Act and the same would continue to be the property of the assessee.
(2.) CHALLENGING the said order of the Deputy Commissioner of Income-tax, Jalandhar, dated December 4, 1991, the petitioner approached this court. Learned counsel for the Revenue took a preliminary objection to the maintainability of the writ petition on the ground that the petitioner having parted with the interest in the property, has no locus standi to file the writ petition. But the order impugned shows that the property will continue to be the property of the assessee. If that is the case, any income derived on the said property after the transfer would be treated as income derived by the assessee and the petitioner will be fastened with the tax liability on such income even after the transfer. The assessee-petitioner is, therefore, an aggrieved person having locus standi and we find no merit in the contention of learned counsel for the Revenue. During the course of arguments, a controversy was raised in regard to the quantum of tax payable by the petitioner, but we refrain from going into this controversy as it is not the subject-matter of the writ petition. Learned counsel for the petitioner argued that the sale is void only to the extent of the tax liability of the assessee and it cannot be declared as void for all intents and purposes and the order of the Deputy Commissioner of Income-tax treating the property as property of the assessee is beyond the scope of Section 281 of the Income-tax Act. Learned counsel for the Revenue contended that the assessee continues to be the owner of the property as the transfer is void under Section 281 of the Income-tax Act as against the claims in respect of the tax liability. Section 281 reads as follows : " 281. Certain transfers to be void. -- (1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under Rule 2 of the Second Schedule, any assessee creates a charge on, or parts with the 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 the assessee as a result of the completion of the said proceeding or otherwise. "
(3.) THUS, from a reading of Section 281, it is clear that any transfer by the assessee during the pendency of any proceedings under the Act or after completion thereof shall be void against any claim in respect of any tax or any other sum payable by the assessee as a result of the said proceeding or otherwise. THUS, it is clear that the transaction or the transfer is not void ab initio. Section 281 only declares that any transfer is void against the claims of the Revenue in respect of the tax finally determined in a proceeding which has been pending at the time of the transfer. Section 281 does not say that even after the transfer of the property the ownership continues to be with the assessee till all the claims of the Revenue are satisfied. Section 281 does not declare the transfer to be void ab initio so that the title of the transferee is lost. It only declares that the transfer is void to the extent of the tax liability that might finally be determined by the authorities on completion of the proceeding under the Income-tax Act. In fact, no separate orders under Section 281 are also required to be passed to give effect to the provisions of Section 281 as it is declaratory in nature and it does not require any adjudication on the nature of the transfer and the rights of the parties to the transaction in general. In view of the above discussion, the writ petition is partly allowed holding that the transfer effected by the assessee-petitioner in favour of his wife is void only against the claims of the Revenue in respect of the tax liability or any other sum payable by the assessee as a result of the completion of the proceedings pending or completed at the time of the transfer. We also direct the deletion of the last sentence, viz., "will continue to be the property of the assessee" in the impugned order of the Deputy Commissioner of Income-tax.;