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TMI Blog2013 (2) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to nil. This fact was in the notice of Income-tax Officer as well as the Commissioner of Income Tax. Attention of the Income-tax Officer as also the Tax Recovery Officer was also invited by the firm M/s. UPCC through its communication dated 22.11.1996. On 16.1.1997, assessee had specifically called upon the Income Tax Officer who had raised the demand against the assessee to confirm if all the recovery certificates issued against the assessee-firm had stood withdrawn or cancelled. In view of the facts within the knowledge of the department and the communications so made, the Tax Recovery Officer could not have confirmed the sale on 25.3.1998. Rule 56 casts an obligation on the Tax Recovery Officer to pass an order confirming the sale consciously and with due application of mind to the relevant facts relating to sale by public auction which is to be confirmed. Under Rule 63, confirmation of sale is not automatic. An order confirming the sale is contemplated to make the sale absolute. Ordinarily, in the absence of an application under Rule 60, 61 or 62 having been made, or having been rejected if made, on expiry of 30 days from the date of sale the Tax Recovery Officer shall p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07, 2009-10 and 2008-09 are concerned. 2. Writ Petition No.24101 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent in TRC Nos.185 to 187 relating to the assessment year 2006-07 to 2009-10 and quash the letter dated 22.8.2012 and direct the first respondent to lift the order of attachment of immovable property in respect of 25 flats is concerned. 3. By consent, all four writ petitions are taken up together for final disposal. 4. Heard Mr.R.Sivaraman, learned counsel appearing for the petitioner in all four writ petitions; Mr.T.Pramodkumar Chopta, learned counsel appearing for the respondents 1 and 2 in all writ petitions and Mr.N.Srinivasan, learned Additional Government Pleader appearing for the third respondents in W.P.Nos.22913 to 22915 of 2012. 5. The petitioner undertook an housing project and as a consequence to the development of the project and the profit derived thereon, they sought the benefit of Section 80-IB of the Income Tax Act, 1961, more particularly Sub Clause 10, which reads as follows:- "Deduction in respect of profits and gains from certain industrial undertakings other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) The residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three percent of the aggregate built-up area of the housing project or five thousand square feet, whichever is higher; (e) not more than one residential unit in the housing project is allotted to any person not being an individual; " 6. Special deduction from tax was sought under Chapter VI-A of the Tamil Nadu Income Tax Act, 1961 and that was disallowed by the assessing officer and a demand was raised. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2012. 10. Mr.Pramodhkumar Chopda, learned counsel appearing for the respondents 1 and 2 in all the writ petitions states that the time limit for filing a tax appeal is not over and therefore, the demand notice should continue in terms of Section 225(2) and (3) of the Income Tax Act, 1961 and it reads as follows:- 225. Stay of proceedings in pursuance of certificate and amendment or cancellation thereof (1) x x x (2) Where the order giving rise to a demand of tax for which a certificate has been drawn up is modified in appeal or other proceeding under this Act, and, as a consequence thereof, the demand is reduced but the order is the subject-matter of further proceeding under this Act, the Tax Recovery Officer shall stay the recovery of such part of the amount specified in the certificate as pertains to the said reduction for the period for which the appeal or other proceeding remains pending. (3) Where a certificate has been drawn up and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act, the Tax Recovery Officer shall, when the order which was the subject-matter of such appeal or other proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar to Rule 56 of Second Schedule is not to be found. Rule 60 provides for an application to set aside sale of immovable property being made by defaulter or an interested person on his depositing the specified amount within 30 days from the date of sale. Rule 61 deals with application to set aside sale of immovable property on the ground of non-service of notice on the defaulter under the Schedule or on the ground of material irregularity in publishing or conducting the sale. Under Rule 62 a sale may be set aside on an application by the purchaser on the ground that the defaulter had no saleable interest in the property sold. The prescribed time limit within which the application can be made under Rule 60, 61 or 62 is 30 days from the date of sale. Where no application is made for setting aside the sale or such an application having been made is disallowed, the Tax Recovery Officer shall make an order confirming the sale and thereupon the sale shall become absolute. On a sale of immovable property becoming absolute, a sale certificate shall be issued under Rule 65. 5. Under Section 224, an assessee cannot dispute the correctness of any certificate drawn up by the Tax Recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by the assessee or by the auction purchaser or by anyone interested in the property. On expiry of 30 days from the date of the sale the Tax Recovery Officer could have passed an order confirming the sale. However, the Tax Recovery Officer was injuncted by the writ of civil court from confirming the sale. The interim order issued by the civil court ceased to operate on 12.1.1998 whereafter an order of confirmation was passed on 25.3.1998 by the Tax Recovery Officer ignoring, or unmindful of, the important event which had taken place in between. Before 25.3.1998, the demand against the assessee admittedly stood reduced to nil. This fact was in the notice of Income-tax Officer as well as the Commissioner of Income Tax. Attention of the Income-tax Officer as also the Tax Recovery Officer was also invited by the firm M/s. UPCC through its communication dated 22.11.1996 (Annexure P- 6). On 16.1.1997, the counsel for the assessee had specifically called upon the Income Tax Officer who had raised the demand against the assessee to confirm if all the recovery certificates issued against the assessee-firm had stood withdrawn or cancelled. In view of the facts within the knowledge of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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