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TMI BlogGENERAL PROVISIONSX X X X Extracts X X X X X X X X Extracts X X X X ..... a decree of a civil court, within the said period of fifteen days if— (a) he is satisfied, for reasons to be recorded in writing, that the defaulter is likely to conceal, remove or dispose of the whole or any part of the movable property; and (b) the realisation of the amount of the certificate would in consequence be delayed or obstructed. (3) The defaulter whose property has been so attached may furnish security to the satisfaction of the Tax Recovery Officer and on such acceptance of the security by the Tax Recovery Officer, the attachment shall be cancelled from the date on which the security is accepted. Mode of recovery. 3. (1) If the amount mentioned in the notice is not paid within the time specified therein, or within such further time as the Tax Recovery Officer may grant in his discretion, the Tax Recovery Officer shall proceed to realise the amount by one or more of the following modes, namely:— (a) by attachment and sale of the defaulter's movable property; (b) by attachment and sale of the defaulter's immovable property; (c) by arrest of the defaulter and his detention in prison in accordance with the provisions of the Code of Criminal Procedure, 1973; (d) by appointi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner. Disposal of proceeds of execution. 7. (1) Whenever assets are realised by sale, or otherwise, in execution of a certificate, the proceeds shall be disposed of in the following manner, namely:— (a) they shall first be adjusted towards the amount due under the certificate in execution of which the assets were realised and the costs incurred in the course of such execution; (b) if there remains a balance after the adjustment referred to in clause (a), the same shall be utilised for satisfaction of any other amount recoverable from the assessee under this Code which may be due on the date on which the assets were realised; and (c) the balance, if any, remaining after the adjustments under clauses (a) and (b) shall be paid to the defaulter. (2) If the defaulter disputes any adjustment under clause (b) of sub-paragraph (1), the Tax Recovery Officer shall determine the dispute. General bar to jurisdiction of civil courts, save where fraud alleged. 8. (1) Except as otherwise expressly provided in this Code, every question arising between the Tax Recovery Officer and the defaulter or their representatives, relating to the execution, discharge or satisfaction of a certificate, or rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person. (6) The Tax Recovery Officer shall disallow the claim, for reasons to be recorded in writing, if he is satisfied that the property was— (a) at the said date, in the possession of the defaulter as his own property and not on account of any other person; (b) in the possession of some other person in trust for the defaulter; or (c) in the occupancy of a tenant or other person paying rent to the defaulter. (7) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish his right to the property in disputes; but, subject to the outcome of such suit the order of the Tax Recovery Officer shall be conclusive. Removal of attachment on satisfaction, or cancellation of certificate. 11. Where— (a) the amount due, with costs and all charges and expenses resulting from the attachment of any property or incurred in order to hold a sale, are paid to the Tax Recovery Officer, or (b) the certificate is cancelled, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst such property in execution of a decree for the payment of money. (2) Where an attachment has been made under this Schedule, any private transfer, or delivery, of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. Prohibition against bidding or purchase by officer. 16. No officer or other person having any duty to perform in connection with any sale under this Schedule shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold. Prohibition against sale on holidays. 17. No sale under this Schedule shall take place on — (a) a Sunday; (b) other general holiday recognised by the State Government ; or (c) any day which has been notified by the State Government to be a local holiday for the area in which the sale is to take place. Assistance by police. 18. Any officer authorised to attach or sell any property or to arrest the defaulter or charged with any duty to be performed under this Schedule, may apply to the officer-in-charge of the nearest police station for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the property to be attached is agricultural produce, shall also be affixed on the outer door or on some other conspicuous part of the house in which the defaulter ordinarily resides, or with the leave of the Tax Recovery Officer, on the outer door or on some other conspicuous part of the house in which he— (a) carries on business or personally works for gain; or (b) is known to have last resided or carried on business or personally worked for gain. (3) Upon affixing the copy of warrant under sub-paragraphs (1) and (2), the produce shall be deemed to have passed into the possession of the Tax Recovery Officer. Provisions as to agricultural produce under attachment. 25. (1) Where agricultural produce is attached, the Tax Recovery Officer shall make such arrangements for the custody, watching, tending, cutting and gathering thereof as he may deem sufficient; and he shall have power to defray the cost of such arrangements. (2) The defaulter may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it, subject to such conditions as may be imposed by the Tax Recovery Officer in this behalf, either in the order of attachment or in any subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l discharge him as effectually as payment to the party entitled to receive the same. Attachment of decree. 27. (1) The attachment of a decree of a civil court for the payment of money, or for sale in enforcement of a mortgage or charge, shall be made by the issue to the civil court of a notice requesting the civil court to stay the execution of the decree unless and until— (a) the Tax Recovery Officer cancels the notice; or (b) the Tax Recovery Officer, or the defaulter, applies to the court receiving such notice to execute the decree. (2) Where a civil court receives an application under clause (b) of sub-paragraph (1), it shall, on the application of the Tax Recovery Officer, or the defaulter, and subject to the provisions of the Code of Civil Procedure, 1908, proceed to execute the attached decree and apply the net proceeds in satisfaction of the certificate. (3) The Tax Recovery Officer shall be deemed to be the representative of the holder of the attached decree, and to be entitled to execute such attached decree in any manner lawful for the holder thereof. Share in movable property. 28. Where the property to be attached consists of the share, or interest, of the defaulter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same. Inventory. 33. In the case of attachment of movable property by actual seizure, the officer shall, after attachment of the property, prepare an inventory of all the property attached, specifying in it the place where it is lodged or kept, and shall forward the same to the Tax Recovery Officer and a copy of the inventory shall be delivered by the officer to the defaulter. Attachment not to be excessive. 34. The attachment by seizure shall not be excessive, that is to say, the property attached shall be as nearly as possible proportionate to the amount specified in the warrant. Seizure between sunrise and sunset. 35. Attachment by seizure shall be made after sunrise and before sunset and not otherwise. Power to break open doors. 36. The officer may break open any inner or outer door or window of any building and 20 enter any building in order to seize any movable property, if the officer has reasonable grounds to believe that such building contains movable property liable to seizure under the warrant and the officer has notified his authority and intention of breaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the person holding the sale, is not offered for it, and (b) the owner of the produce, or a person authorised to act on his behalf, applies to have the sale postponed till the next day or, if a market is held at the place of sale, the next market day. (4) When the sale has been postponed under sub-paragraph (3), it shall be then completed on the date postponed irrespective of any price offered for the produce. Special provisions relating to growing crops. 42. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of the crop being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut, or gathered, and is ready for storing. (2) Where the crop from its nature does not admit of being stored or can be sold at a greater value in an unripe stage, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending or cutting or gathering the crop. Sale to be by auction. 43. The property shall be sold by publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferring, or charging, the property in any way and prohibiting all persons from taking any benefit under such transfer or charge. Service of notice of attachment. 49. A copy of the order of attachment shall be served on the defaulter. Proclamation of attachment. 50. The order of attachment shall be proclaimed at some place on, or adjacent to, the property attached by beat of drum, or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and on the notice board of the office of the Tax Recovery Officer. Attachment to relate back from the date of service of notice. 51. Where any immovable property is attached under this Schedule, the attachment shall relate back to, and take effect from, the date on which the notice to pay the arrears, issued under this Schedule, was served upon the defaulter. SALE Sale and proclamation of sale. 52. (1) The Tax Recovery Officer may direct that any immovable property which has been attached, or such portion thereof as may seem necessary to satisfy the certificate, shall be sold. (2) Where any immovable property is ordered to be sold, the Tax Recovery Officer shall cause a proclamation of the intended sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of his purchase money, to the officer conducting the sale; and, in default of such deposit, the property shall forthwith be resold. (2) The full amount of purchase money payable shall be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of the sale of the property. Procedure in default of payment. 58. In default of payment within the period mentioned in paragraph 57, the deposit may, if the Tax Recovery Officer thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be resold, and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. Authority to bid. 59. (1) Where the sale of a property, for which a reserve price has been specified under clause (d) of paragraph 53, has been postponed for want of a bid of an amount not less than such reserve price, it shall be lawful for an Assessing Officer, if so authorised by the Chief Commissioner or this Commissioner in this behalf, to bid for the property on behalf of the Central Government at any subsequent sale. (2) All persons bidding at the sale shall be require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice or irregularity. (3) An application made by a defaulter under this paragraph shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate. Setting aside sale where defaulter has no saleable interest. 62. At any time within a period of thirty days of the sale, the purchaser may apply to the Tax Recovery Officer to set aside the sale on the ground that the defaulter had no saleable interest in the property sold. Confirmation of sale. 63. (1) Where no application is made for setting aside the sale under paragraphs 60 and 61 or where such an application is made and disallowed by the Tax Recovery Officer, the Tax Recovery Officer shall (if the full amount of the purchase money has been paid) make an order confirming the sale and thereupon, the sale shall become absolute. (2) Where application is made and allowed, and where, in the case of an application made to set aside the sale on deposit of the amount and penalty and charges, the deposit is made within a period of thirty days from the date of the sale, the Tax Recovery Officer shall make an order setting aside the sale. (3) No order under sub-paragraph (2) shall be made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any lot, the bid shall be deemed to be the bid of the co-sharer. Acceptance of property in satisfaction of amount due from the defaulter. 69. (1) Without prejudice to the provisions contained in this Part, an Assessing Officer, duly authorised by the Chief Commissioner or the Commissioner in this behalf, may accept in satisfaction of the whole or any part of the amount due from the defaulter the property, the sale of which has been postponed for the reason mentioned in sub-paragraph (1) of paragraph 59, at such price as may be agreed upon between the Assessing Officer and the defaulter. (2) Where any property is accepted under sub-paragraph (1), the defaulter shall deliver possession of such property to the Assessing Officer and on the date the possession of the property is delivered to the Assessing Officer, the property shall vest in the Central Government and the Central Government shall, where necessary, intimate the concerned Registering Officer appointed under the Registration Act, 1908, accordingly. (3) Where the price of the property agreed upon under sub-paragraph (1) exceeds the amount due from the defaulter, such excess shall be paid by the Assessing Officer to the defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of limitation specified under this paragraph. PART IV PROCEDURE FOR DISTRAINT Procedure for distraint. 71. Where any distraint and sale of movable property are to be effected by any Assessing Officer or Tax Recovery Officer authorised for the purpose, such distraint and sale shall be made, as far as may be, in the same manner as attachment and sale of any movable property attachable by actual seizure, and the provisions of this Schedule relating to attachment and sale shall, so far as may be, apply in respect of such distraint and sale. PART V APPOINTMENT OF RECEIVER Appointment of receiver for business. 72. (1) Where the property of a defaulter consists of a business, the Tax Recovery Officer may attach the business and appoint a person as receiver to manage the business. (2) The attachment of a business under this paragraph shall be made by an order prohibiting the defaulter from transferring or charging the business in any way and prohibiting all persons from taking any benefit under such transfer or charge, and intimating that the business has been attached under this paragraph. (3) A copy of the order of attachment shall be served on the defaulter, and another copy sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter is likely to abscond, or leave the local limits of the jurisdiction of the Tax Recovery Officer, with the object, or effect, of delaying the execution of the certificate. (4) The Tax Recovery Officer may issue a warrant for the arrest of the defaulter if appearance is not made in obedience to a notice issued and served under sub-paragraph (1). (5) A warrant of arrest issued by a Tax Recovery Officer under sub-paragraph (3) or sub-paragraph (4) may also be executed by any other Tax Recovery Officer within whose jurisdiction the defaulter may for the time being be found. (6) Every person arrested in pursuance of a warrant of arrest under this paragraph shall be brought before the Tax Recovery Officer issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey). (7) The Tax Recovery Officer shall at once release the defaulter if he pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him. (8) In this paragraph, the karta of a Hindu undivided family shall be deemed to be the defaulter if the defaulter is the Hindu undivided family. Hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch he was detained in the civil prison. Release. 81. (1) The Tax Recovery Officer may order the release of a defaulter who has been arrested in execution of a certificate upon being satisfied that— (a) he has disclosed the whole of his property and has placed it at the disposal of the Tax Recovery Officer; and (b) he has not committed any act of bad faith. (2) The Tax Recovery Officer may order the rearrest of the defaulter in execution of the certificate, if he has ground for believing the disclosure made by the defaulter under subparagraph (1) to have been untrue. (3) The period of the detention of the defaulter in the civil prison shall not in the aggregate exceed the period authorised under paragraph 80. Release on ground of illness. 82. (1) The Tax Recovery Officer may, at any time after a warrant for the arrest of a defaulter has been issued, cancel the warrant on the ground of serious illness of the defaulter. (2) The Tax Recovery Officer may, in a case where a defaulter has been arrested, release him if, in the opinion of the Tax Recovery Officer, he is not in a fit state of health to be detained in the civil prison. (3)A defaulter, who has been committed to the civil priso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule, except arrest and detention, may be continued against the legal representative of the defaulter, and the provisions of this Schedule shall apply as if the legal representative were the defaulter, if the defaulter dies, at any time, after the certificate is drawn up by the Tax Recovery Officer. Appeals. 89. (1) An appeal from any original order passed by the Tax Recovery Officer under this Schedule, not being an order which is conclusive, shall lie to the Chief Commissioner or Commissioner. (2) Every appeal under this paragraph may be presented within a period of thirty days from the date of the order appealed against. (3) Pending the decision of any appeal, execution of the certificate may be stayed if the appellate authority so directs, but not otherwise. (4) Where a Chief Commissioner or Commissioner is authorised to exercise powers as such in respect of any area, then, notwithstanding anything in sub-paragraph (1), all appeals against the orders passed before the date of such authorisation by any Tax Recovery Officer authorised to exercise powers as such in respect of that area, or an area which is included in that area, shall lie to such Chief Commissioner or Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) the scale of charges to be recovered in respect of any other proceeding taken under this Schedule; (g) recovery of poundage fee; (h) the maintenance and custody, while under attachment, of livestock or other movable property, the fees to be charged for such maintenance and custody, the sale of such livestock or property, and the disposal of proceeds of such sale; (i) the mode of attachment of business. Saving regarding charge. 95. Nothing in this Schedule shall affect any provision of this Code whereunder the tax is a first charge upon any asset. Interpretations in this Schedule. 96. In this Schedule, unless the context otherwise requires,— (a) "certificate", except in paragraphs 6, 44, 65 and sub-paragraph (2) of paragraph 66, in respect of any assessee means the certificate referred to in sub-section (1) of section 219; (b) "defaulter" means the assessee mentioned in the certificate; (c) "execution" in relation to a certificate means recovery of arrears in pursuance of the certificate; (d) "movable property" includes growing crops; (e) "officer" means a person authorised to make an attachment or sale under this Schedule; (f) "paragraph" means a paragraph contained in this Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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