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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 ..... n respect of the property situated at 4/A, Golden Tulip Bungalow, Near Old Manekbaug Octroi Naka, Satellite, Ahmedabad (hereinafter referred to as "the property in question"), by which the Recovery Officer has declared sale of the aforesaid property in question in favour of the petitioner as null and void under Second Schedule to Rule 16 of the Income Tax Act, 1961. 2.00. It appears that a sum of Rs. 45,94,236/- was due and payable by the original assessee - Mr.Harish F. Shah in respect of Certificate bearing No.TRO.Central-II/RC/-4/04/05 dated 16/12/2004 and the interest payable under section 220(2) of the Income Tax Act, 1961. A prohibitory order came to be passed on 4/1/2005 in respect of the property in question of the original assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 property in question could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in Rule 60, and even the sale can be set aside. It is submitted that in the present case, as such, that stage has not yet come and before that the original assessee has already deposited the entire amount due and payable under the Certificate bearing No.TRO.Central-II/RC/- 4/04/05 dated 16/12/2004 along with interest, for which the order of attachment under Rule 48 was passed in the year 2005. Therefore, it is requested to set aside the impugned order, as the entire amount due and payable under Certificate bearing No.TRO.Central-II/RC/-4/04/05 dated 16/12/2004, for which the order of attachment of the property in question was passed under Rule 48, has been paid. 5.00. Mr.Manish Bhatt, learned counsel appearing on behalf of the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is required to be noted that an order of attachment of the property in question has been passed by the Tax Recovery Officer, in exercise of Rule 48 of Second Schedule of the Income Tax Act vide order dated 4/1/2005 for the amount of Rs. 45,94,236/- due and payable by the original assessee - Mr.Harish F. Shah in respect of Certificate bearing No.TRO.Central-II/RC/-4/04/05 dated 16/12/2004 and the interest payable under section 220(2) of the Income Tax Act, 1961. It is true that despite the above, the order of attachment, the original assessee transferred the property in favour of his wife - petitioner herein. However, it is required to be noted that there is serious dispute with respect to service of order dated 4/1/2005 by the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 48, has been paid along with interest under section 220(2) of the Act, the impugned order declaring the transaction in favour of the petitioner as null and void deserves to be quashed and set aside. 6.05. So far as the submission of Mr.Bhatt, learned counsel appearing on behalf of the revenue that further amount is due and payable by the original assessee - Mr.Harish F. Shah pursuant to the penalty order dated 17/3/2006, and therefore, order of attachment dated 4/1/2005 can be said to be continued for the dues of the penalty order dated 17/3/2006, is concerned, it is required to be noted that the Certificate was issued for the dues of the original assessee to the extent of Rs. 45,94,236/- and the interest payable under section 220(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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