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TMI Blog2022 (5) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... and to consequently forbear the respondent from in any manner confirming any sale pursuant thereto. 2. The facts are not in dispute. The petitioner was in arrears of income tax for a sum of Rs.29,84,56,331/- for the period prior to the year 2008. Earlier, proceedings were initiated and Tax Recovery certificate was issued on various dates (02.06.2000, 16.01.2003 and 19.03.2007) by the Tax Recovery Officer, Chennai-34. An earlier attempt was made in the year 2008, for drawing up a proclamation of sale deed by an undertaking, dated 16.06.2008 of the Tax Recovery Officer-II, Chennai-34. The petitioner was called upon to participate in the aforesaid proceedings on 26.07.2008. 3. Apart from the arrears of tax there were several other out standings to its customers which included both the registered and unregistered time share holders and amounts due to Repco Bank and Municipal dues. It appears an unauthorised person was in occupation of the property and further earlier to auction did not materalize. When the earlier attempt was made to auction the subject property by issuing a advertisement on 27.09.2008, the reserved price of Rs.4,10,00,000/- was fixed by the respondent Income Tax Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a paltry sum of Rs.3,38,03,500/- which is below the market value of the property. It is submitted that if the reserved price was declared in the auction notice, public would have participated and perhaps offered a higher amount. 7. In this connection, the learned counsel for the petitioner has placed reliance on the decision in Kerala High Court in Moni Senan Vs Commissioner of Income Tax and others. The relevant portion from the aforesaid order reads as under: 19. Now I may also deal within the contention of the petitioner that there is violation of Rule 53(cc). The rule has already been extracted earlier. On an examination, it is seen that reference to the said rule is made in two other places in the Second Schedule. This is Rule 56 and Rule 59. An isolated examination of the impact of a provision as contained in a rule, when the expression has been used in more than one place in the statute also may not be advisable, since a comprehensive view as regards the scope and purport may not be obtained by such approach. Rule 56 prohibits a confirmation if the bid is below the reserve price fixed if any. Rule 59 gives a right to the Central Government to bid for the property in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is expected to fetch. When the court gives the upset price, it cannot do so merely on the ipse dixit of either the judgment-debtor or the decree-holder. What should be the amount to be fixed as the upset price must, therefore, be determined after an objective consideration of all the relevant facts to which the court must apply its mind, so as to safeguard the interests of the judgment-debtor. It is true that for fixing the upset price, no elaborate enquiry may be required to be made, but the upset price cannot also be any figure having no relation whatsoever to the minimum price which the property intended to be sold is expected to fetch at the auction sale." 20. Mr. Menon, senior standing counsel, however, pointed out that Rule 53(cc) does not at all in mandatory terms require the authority to fix a reserve price, and the expression used is "if any" which has a definite connotation. But this has to be examined from yet a different angle. The rule, according to me, has to be strictly construed. A proclamation of sale has to be drawn up only after notice to the defaulter. The expression can be understood as the procedure to be followed. It is not a simple notice. As regards fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction sale may be obtained from the office during office hours and/or can be obtained at the downloaded in the income tax website in www.incometaxindia.gov.in/ www.tnincometax.gov.in. 10. The learned counsel for the respondents further submits that earlier also two other attempts were made in the years 2009, 2015 and 2016 are futile. In the auction notice, the reserved price was fixed as Rs.4,70,00,000/-. Thereafter, on 26.12.2018, the respondents issued a notice to the petitioner informing the petitioner to come for a personal hearing on 21.01.2019 for fixing and drawing up the proclamation of sale and settling the term thereof. The petitioner responded on 12.01.2019 wherein, the petitioner informed the respondent that the petitioner was willing to co-operate with any application or petition which the income tax may file in the High Court to vacate the illegal occupant and to bring the property for sale against the tax of arrears. The petitioner also requested the income tax department to consider that the interest of time share holder in the property may be taken into account when the property is brought to sale. It is pursuant to the above, a proclamation of sale deed, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Jayaraj in W.P.(MD).No.9640 of 2009 which has been filed along with the typeset also indicates that he had filed the said writ petition to stall auction notice dated 03.09.2009. Therefore, I do not find any irregularity committed by the Income Tax Department while auctioning the property. The Income Tax Department also made it very clear that the auction amount will be adjusted toward the tax liability and the interest thereon and the balance if any will be adjusted and payable toward the other state holders namely 234 time share holders, dues to Repco Bank and the tax due to the Commercial Tax Department totalling to Rs.95,02,968/-. 15. Since the amount was recovered from the auction sale is only Rs. 3,38,03,500/-, the third respondent is also bound to pay the amounts due to the 234 time share holders, Commercial Tax Department and Repco Bank. These are the liabilities of the petitioner which the third respondent has undertaken to discharge and therefore, I do not find any irregularity in the auction conducted by the Income Tax Department. There is no merit in the present writ petition. 16. The writ petition therefore stands dismissed in light of the above observations. No cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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