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TMI Blog2018 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... hority in CBDT to increase the period from three years to four years. The incompetent authority, therefore, cannot prejudice legal rights of petitioner flowing from statutory provisions or eclipse the same in any manner. Notice dated 18.11.2004 is, therefore, beyond period of three years and, therefore, hit by Rule 68B( 1). Similarly, Advocate Parchure has attempted to urge that notice dated 18.11.2004 impugned before this Court is a resale. Again material on record does not show that it is a resale. In this situation, we find the notice dated 18.11.2004 unsustainable. It is accordingly quashed and set aside. Consequently, in view of mandate of Rule 68B(4), attachment of properties which formed subject matter of said notice dated 18.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, from August 09, 2004 i.e. date of Andhra Pradesh High Court judgment, stipulation of four years as limitation ceased and period of three years only remained relevant for computing limitation. He further submits that respondents are relying upon an earlier instance in case of similar firm, the HUF therein was a copartner with present petitioner. There the contention of said R.B. Sriram Durgaprasad (HUF) was period of limitation prescribed in Rule 68B(1) needed to be calculated from the date of judgment in reference proceedings by High Court. Contention, therefore, was auction then scheduled was beyond stipulated period. High Court accepted that contention of R.B. Sriram Durgaprasad. Hon'ble Apex Court, however, has overruled High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5. In reply arguments, Advocate Bhattad has invited our attention to Rule 68B(4) to urge that as auction has not been conducted within stipulated time, action of attachment also gets vitiated. 6. Perusal of memo of writ petition does not show any effort made by revenue after 16.01.2001 till 18.11.2004 for auction of attached property. The only effort appears to be on 18.11.2004. It, therefore, is not a case of resale but first or initial sale or auction only. 7. Perusal of judgment dated 09th August, 2004 delivered by Andhra Pradesh High Court shows that CBDT does not have power to issue notification to amend a provision enacted by parliament. Notification dated 01st March, 1996 enhancing period of limitation of three years stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation under Rule 68B(1) is four years. The consideration therein shows that application under Section 256(2) of Income Tax Act, 1961 was dismissed on 08.04.1987 and R.B. Sriram Durgaprasad thereafter filed SLP before Hon'ble Apex Court where leave was granted and Civil Appeals 69446952 of 1995 were registered. That appeal was finally dismissed on 16.01.2001. 10. The contention of R.B. Sriram Durgaprasad before High Court was the certificate for recovery issued on 15.07.2004 was barred by limitation. High Court accepted the said contention and found that assessment proceedings were finalized on 08.04.1987 only. The Hon'ble Apex Court in this backdrop found that period of limitation needed to be counted from date 16.01.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation of four years because it was case of resale. Period of four years is statutorily prescribed in proviso to Rule 68B( when first auction/sale cannot materialize in contingency stipulated thereunder. Such material is not seen in the judgment delivered by Hon'ble Apex Court or then it is not on record before us. We, therefore, cannot accept that the certificate issued on 15.07.2004 and which formed subject matter of Civil Appeal No. 4723 of 2006 was in process of resale. 15. Similarly, Advocate Parchure has attempted to urge that notice dated 18.11.2004 impugned before this Court is a resale. Again material on record does not show that it is a resale. 16. In this situation, we find the notice dated 18.11.2004 unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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