9911796707
TMI Blog1990 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... auction, the petitioners were the highest bidders in a sum of Rs. 45,000. As required by rule 57(1) of Schedule 11 to the Income-tax Act, they deposited 25 per cent. amount on the same day, i.e., a sum of Rs. 11,250. The balance amount had to be paid within 15 days as provided by sub-rule (2) of rule 57. The petitioners deposited a sum of Rs. 13,343 on March 27, 1980. They say that they also deposited a further sum of Rs. 18,407 on April 2, 1980. The total of these three amounts comes to Rs. 43,000 which is two thousand short of the sale amount. Admittedly, the petitioners did not deposit the full amount within the period of 15 days, though they have an explanation therefor. The widow of the defaulter deposited the entire amount due alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are in default of the provisions of rule 57(2) to the Second Schedule of the Income-tax Act, 1961. I, therefore, forfeit the part payment of Rs. 24,593 made to the undersigned by the purchaser on March 26, 1980, and March 27, 1980, to the Government and the sale is cancelled." Thereupon, the petitioners approached this court by way of this writ petition. It would be appropriate to refer to rules 57, 58 and 60 for a proper appreciation of the contentions arising here. These rules are but a mere reproduction of the relevant rules in Order XXI, Civil Procedure Code. In particular, rule 58 corresponds, word for word, to rule 86 of Order XXI, Civil Procedure Code. The contention of learned counsel for the petitioner is that, under rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II to the Act are identically worded, the principle of the said decision applies squarely therein. If so, it must be held that the forfeiture was not automatic but that it was a matter of discretion with the Tax Recovery Officer. A perusal of the impugned order shows that the Tax Recovery Officer proceeded on the footing as if the forfeiture is automatic. He stated that there was admittedly a default which, of course, he terms as clear and wilful and says that forfeiture shall follow. He has not considered the circumstances of the case, namely, that, within fifteen days of the auction, the defaulter's wife had applied for setting aside the sale under rule 60 and once an application is made in accordance with rule 60, there is no discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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