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TMI Blog2017 (2) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the impugned order declaring the transaction in favour of the petitioner as null and void deserves to be quashed and set aside. The order of attachment under Rule 48 can be issued only with respect to the Certificate issued for the amount due and payable by the original assessee. Therefore, the contention on behalf of the revenue that the impugned attachment order dated 4/1/2005 can be said to be continued with respect to amount due and payable under penalty order dated 17/3/2006, has no substance and the same cannot be accepted. It is required to be noted that when the order of attachment was passed on 4/1/2005, the penalty order was not even in existence, as the same has been passed subsequently on 17/3/2006 i.e. after a period of more than one year. However, still it will be open for the revenue to initiate appropriate proceedings to recover the amount due and payable under penalty order dated 17/3/2006 and may be from the very property in question, if permissible under the law. However, on the aforesaid ground, the impugned order cannot be continued, as the amount due and payable under the Certificate has been paid by the original assessee with interest is 220(2) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 28/9/2015 declaring sale deed in favour of the petitioner executed by the original assessee as well as other co-owners, as null and void under Second Schedule to Rule 16 of the Income Tax Act, 1961. 2.03. Feeling aggrieved and dissatisfied with the impugned order dated 28/9/2015 declaring the sale transaction in favour of the petitioner with respect to the property in question as null and void, the petitioner herein - purchaser has preferred the present petition under Article 226 of the Constitution of India. 3.00. Mr.S.N. Soparkar, learned Senior Advocate has appeared with Mr.Manav Mehta, learned advocate, on behalf of the petitioner. Mr.Manish Bhatt, learned Senior Advocate has appeared on behalf of the respondent No.1 Revenue and Mr.Hardik Soni, learned Assistant Government Pleader has appeared on behalf of the respondent No.2. 4.00. Number of submissions have been made by Mr.Soparkar, learned counsel appearing on behalf of the petitioner including the submission that when the property in question was jointly owned by other co-owners and a joint sale deed was executed, for the dues of one of the co-owners, transaction / sale deed with respect to the entire p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt due and payable by the original assessee (even other than the amount for which the Certificate has been issued). It is submitted that therefore, assuming that now the original assessee has paid the entire amount due and payable under the Certificate, for which order of attachment under Rule 48 was passed, still for the dues of the amount due and payable under penalty order dated 17/3/2006, order of attachment continuous. Therefore, it is submitted that the impugned order is not required to be quashed and set aside on the ground that the original assessee has paid the entire amount due and payable under Certificate with interest. 5.01. Mr.Manish Bhatt, learned counsel appearing on behalf of the revenue has not disputed that the original assessee has paid the entire amount due and payable under Certificate with interest, however, has submitted that some further amount is due and payable by the original assessee pursuant to the penalty order dated 17/3/2006. Therefore, he has requested to clarify that it will be open for the revenue to take further steps to recovery the amount pursuant to the penalty order dated 17/3/2006, may be from the very property in question, as the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable now to be paid by the original assessee under Certificate bearing No.TRO.Central-II/RC/- 4/04/05 dated 16/12/2004, for non-payment of which the property in question was attached under Rule 48 of the second Schedule to the Income Tax Act, 1961. 6.02. At this stage, it is required to be noted that the Rule 60 of the Second Schedule to the Income Tax Act, 1961 is required to be referred to, which reads as under :- Rule 60. Application to set aside sale of immovable property on deposit:- (1)Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale on his depositing -- (a) the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of [one and one-fourth per cent for every month or part of a month], calculated from the date of the proclamation of sale to the date when the deposit is made; and (b) for payment to the purchaser, as penalty, a sum equal to five percent of the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment order dated 4/1/2005 can be said to be continued with respect to amount due and payable under penalty order dated 17/3/2006, has no substance and the same cannot be accepted. It is required to be noted that when the order of attachment was passed on 4/1/2005, the penalty order was not even in existence, as the same has been passed subsequently on 17/3/2006 i.e. after a period of more than one year. However, still it will be open for the revenue to initiate appropriate proceedings to recover the amount due and payable under penalty order dated 17/3/2006 and may be from the very property in question, if permissible under the law. However, on the aforesaid ground, the impugned order cannot be continued, as the amount due and payable under the Certificate has been paid by the original assessee with interest is 220(2) of the Income Tax Act. 7.00. In view of the above and for the reasons stated above, present petition succeeds. The impugned order order dated 28/9/2015 passed by the respondent No.1 is hereby quashed and set aside. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. - - TaxTMI - TMITax - Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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