2015 (9) TMI 394 - HC - Income Tax

Recovery proceedings - Whether notice for recovery, as contemplated by Rule 2 was served upon the debtor ? - The prayer is, as Bank and Recovery Officer failed to comply with the mandatory provisions of Rules 48, 49, 50 and 52 of Second Schedule appended with the Income Tax Act, 1961, and did not adopt fair and proper procedure, the sale of subject property by auction, be quashed and set aside and property should be restored back to the petitioners Held that - In this case, the petitioners did not move any application within time of thirty days though they could have done so. They have approached this Court in its extraordinary jurisdiction directly, that too without making any deposit. In prayer clause of the petition, they seek time to deposit, but till date have not chosen to deposit a single naya paisa. Period for which such an extension was sought is also not clearly spelt out. Pleadings in petition show that petitioners were always having knowledge of the public notices for sell or of proclamations of sale or of reserved price fixed therein. They do not prove that they became aware for the first time in February or March, 2012. They never raised objections either to fixation of the reserved prices or public notices / proclamations for sale. Scheme of Second Schedule as modified by the DRT Act reveal legislative intent to give the defaulter as much latitude as possible till end. He can, under Rule 60, without assigning any cause but after depositing the sum as mentioned therein within the stipulated time, avoid auction & protect his property. Process becomes difficult & he is asked to meet the ingredients of Rule 61 only thereafter. Thus after stage of Rule 60 is over, right of petitioners/borrowers get diluted & primacy is given to the creditor Bank & interest of the auction purchaser like respondent no. 3 herein. Hence, while approaching this Court directly under Art. 226 of the Constitution of India, it is axiomatic that the petitioners will have to make out an exceptional case. They will have to plead & prove their diligence & also steps taken to warn the bidders of their grievances or of status of subject property. They must see that irregularity, if any, is cured at the earliest & can not indulge in fence-sitting or wait till the proceedings are over & then jump in, in an attempt to unsettle it or to frighten the bidders away. When they want financial institutes like the Respondent no. 1 Bank to give loan to them, they also owe an obligation to it & public to see that in the unfortunate event of forced recovery, it is not unnecessarily obstructed. They must raise objections at the earliest possible opportunity & can not take recourse to any roving tactics to indefinitely delay recovery forcing the buyer to back out. Here, the petitioners have revealed same attitude which is unbecoming on their part. Moreover, their conduct & act of securing another loan from Mahavir Urban Cooperative Bank on the basis of same property dis-entitles them to any relief in extraordinary jurisdiction under Art. 226 of the Constitution of India. There is no justification to warrant dispensing with the fetters employed in the scheme of Rule 61 of the Second Schedule of the Income Tax Act. The intervention by this Court under Art. 226 is neither possible nor desirable in this matter. - Decided against assessee.

Issues Involved:
1. Legality of the auction and sale of the mortgaged property.
2. Compliance with mandatory provisions under the Income Tax Act, 1961.
3. Validity of the equitable mortgage.
4. Adequacy of the reserved price and transparency of the auction process.
5. Availability and exhaustion of alternative remedies.
6. Allegations of procedural irregularities and non-service of notices.
7. Petitioner's right to set aside the sale under Rules 60 and 61 of the Second Schedule of the Income Tax Act.

Detailed Analysis:

1. Legality of the Auction and Sale of the Mortgaged Property:
The petitioner, a hotel establishment and its proprietor, challenged the recovery of a loan by the secured creditor, arguing that the sale of the property by auction should be quashed and set aside due to non-compliance with mandatory provisions of the Income Tax Act, 1961. The court examined whether the auction and sale processes adhered to the legal requirements and found that despite arguments regarding procedural lapses, the sale in favor of the auction purchaser had become absolute.

2. Compliance with Mandatory Provisions under the Income Tax Act, 1961:
The petitioners contended that the bank and recovery officer failed to comply with Rules 48, 49, 50, and 52 of the Second Schedule of the Income Tax Act, 1961. The court scrutinized these provisions, which pertain to the attachment and sale of immovable property, and concluded that while there were claims of non-compliance, the petitioners did not substantiate these claims with sufficient evidence to overturn the sale.

3. Validity of the Equitable Mortgage:
The petitioners argued that the property was never mortgaged with the Central Bank of India. However, the court found that the petitioners had indeed created an equitable mortgage by depositing the title deeds with the bank, as evidenced by the documents on record, including an affidavit and the deposit of title deeds. The court held that the equitable mortgage was valid and enforceable.

4. Adequacy of the Reserved Price and Transparency of the Auction Process:
The petitioners challenged the adequacy of the reserved price, claiming it was significantly lower than the property's market value. The court noted that the reserved price varied from Rs. 11,77,500 to Rs. 25 lakh, and the final auction price was Rs. 18,42,500. The court found that the auction process was conducted transparently, and the variations in reserved price were supported by valuation reports. The petitioners failed to provide a higher offer or substantiate their claims of undervaluation.

5. Availability and Exhaustion of Alternative Remedies:
The respondents argued that the petitioners had an alternative remedy of appeal under Section 30(1) of the Debts Recovery Tribunal Act, which they did not pursue. The court emphasized the importance of exhausting statutory remedies before approaching the court. The petitioners' failure to avail themselves of the available appeal process weighed against their case.

6. Allegations of Procedural Irregularities and Non-Service of Notices:
The petitioners claimed they were not served with notices as required by law. The court examined the records and found that there were acknowledgments of service of notices upon the petitioners at their address in Jalgaon. The court concluded that the petitioners were aware of the auction proceedings and had not demonstrated any substantial injury due to alleged non-service or irregularities.

7. Petitioner's Right to Set Aside the Sale under Rules 60 and 61 of the Second Schedule of the Income Tax Act:
The petitioners sought to set aside the sale under Rule 61, alleging non-service of notice and material irregularity. The court highlighted that Rule 61 requires the debtor to demonstrate substantial injury due to non-service or irregularity and to deposit the amount recoverable. The petitioners failed to meet these requirements, and their application was disallowed. The court also noted that the petitioners did not deposit any amount as required under Rule 60, further weakening their case.

Conclusion:
The court dismissed the writ petition, finding that the petitioners had not substantiated their claims of procedural irregularities, non-service of notices, or undervaluation of the property. The sale in favor of the auction purchaser was upheld, and the petitioners were ordered to pay costs. The court emphasized the importance of exhausting alternative remedies and adhering to statutory requirements in recovery proceedings.

← Previous Next →