T i in a partition suit..
Ravikant Soni
(Querist) 03 August 2012
This query is : Resolved
facts of the case:
Plaintiff filed a suit for paritition along with a petition for temp injunction for refraining defendant from alienation of suit properties.
Defendent not filed any ws yet and nor filed reply against application of temporary injunction.
But during argument on the T.I. application the defendant contended by producing a document purporting it to be a certified copy of judgment passed by ITcomm as to partial partition between the parties. and argued that suit properties are already partitioned so suit is not maintainable. Here it is also noticeable that there is no any signature of presiding officer on the so-produced judgement. the place of signature is blank. but It is the certified copy issued by the I T deptt.
we produced a sale deed in which the defendand sold one of suit property mentioning that as a coparcenary property. But he claimed that this property was not in the list of properties in matter before IT com.
my client knows nothing as to the proceeding before IT com.
So kindly help me to come up the situation. we want t.i. in our favor.
R.K Nanda
(Expert) 03 August 2012
1.Argue strongly on ur injunction application in court so as to get stay order in ur favour.ur suit is maintainable.
2. File application u/s 151 of CPC for summoning the concerned file of IT com. to verify whether any such judgement has been passed or not in that case on which defendant is relying.
prabhakar singh
(Expert) 05 August 2012
Okay!
All of first you need to get satisfied your self that have you been party to any such proceeding with which the judgement concerned?
If not,then it is not a binding judgement on you.
More particularly cases that go before I.T.O.
or I.T.C. are of the assessment of Individuals,HUF,Firms,co.Etc.
In your case only two probabilities ,if i were to guess,are possible:
a)either there has been income assessment order of a HuF in which you all have been shown members,or
b)there has been income assessment order of the defendant in which he has filed some unregistered partition document which was not believed by ITO hence Appeal was filed before ITC and it is that judgement which has been filed here now.
Advise:trace out the original file of ITO to look if such a deed is still there or returned back to defendant(of this civil case).I guess some forgery done by defendant to escape with some amount of income tax imposed and now the same is being used as an arm against you too.But he can not do it,if you were not party in the case before ITO or ITC.Not even
for primafacai.
