9911796707
TMI Blog2005 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... of the dues, because, that is not an issue raised in this petition - WP NO. 1406 OF 2004 - - - Dated:- 20-9-2005 - Judge(s) : V. C. DAGA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by J.P. Devadhar J.- Where an immovable property attached for recovery of any tax, interest, penalty or any other sum under the Income-tax Act, 1961 is sold beyond the period of limitation prescribed by rule 68B of the Second Schedule to the Income-tax Act, 1961, whether such sale is a valid sale is the question raised in this petition. The petitioner at the relevant time was a partner of M/s. Joychem Chemical and Pharmaceuticals Industries ("the firm" for short). Pursuant to the assessment orders passed under section 143(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissing the aforesaid miscellaneous application was erroneously shown as May 19,1995. This error was rectified by the Tribunal on January 17, 2003. It appears that on several occasions, the Revenue attempted to auction the attached flat but the same did not materialise. Ultimately, by a proclamation of sale dated February 23, 2004, the Tax Recovery Officer fixed the auction of the attached flat on March 30, 2004 for recovery of Rs. 5,11,73,470 including costs and interest. The petitioner objected to the said auction on the ground that the limitation prescribed under rule 68B of the Second Schedule to the Income-tax Act for sale of the attached immovable property has already expired and, therefore, the property of the petitioner cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., from April 1, 1995 to March 31, 2000). Since the immovable property is sold on March 30, 2004, i.e., beyond the period of five years from the end of the financial year in which the demand attained finality, the said sale confirmed on March 30, 2004 is liable to be quashed and set aside. In reply, it is submitted by Mr. Kotangale, learned counsel for the Revenue, that the petition suffers from gross delay and laches inasmuch as, on conclusion of the auction sale on March 30, 2004, the right, title and interest in respect of the said flat has vested in the purchaser. It is submitted that the petitioner had alternate remedy of challenging the proclamation of sale and filing a writ is not the proper remedy. It is further submitted that al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod - (i) during which the levy of the aforesaid tax, interest, fine, penalty or any other sum is stayed by an order or injunction of any court; or (ii) during the proceedings of attachment or sale of the immovable property are stayed by an order or injunction of any court; or (iii) commencing from the date of the presentation of any appeal against the order passed by the Tax Recovery Officer under this Schedule and ending on the day the appeal is decided, shall be excluded: Provided that where immediately after the exclusion of the aforesaid period, the period of limitation for the sale of the immovable property is less than 180 days, such remaining period shall be extended to 180 days and the aforesaid period of limitation sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years for sale of attached immovable properties. The proviso to rule 68B(1) provides for extension by one more year in certain cases where the sale falls through. In other words, if the sale held within the period of three years could not be completed for some reason set out therein, then, under the proviso to rule 68B(1) extension by one more year is available for effecting the sale. Rule 68B(2) provides for exclusion of the period during which the demand is stayed by any court. The period of limitation under rule 68B(1) for sale of the attached property commences from the date on which the demand of any tax, interest, fine, penalty or any other sum for the recovery of which the immovable property has been attached has become conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal dated June 15, 1994. The said miscellaneous application was filed by the petitioner seeking stay of the auction of his flat to be held as per the proclamation of sale, inter alia, on the ground that the attached flat was the only flat owned by the petitioner and if the petitioner is evicted from the said flat, then, the petitioner and his family members will be rendered homeless. Admittedly, during the pendency of the miscellaneous application, neither the recovery of tax, interest/penalty which has attained finality on June 15, 1994 has been stayed, nor the auction sale under the proclamation of sale was stayed. In the absence of any order staying the recovery, mere filing of the miscellaneous application would not fall in any of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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