9911796707
TMI Blog2006 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income-tax (Appeals) by his order dated February 27, 1998, set aside the assessment orders and remanded the case with observations. The fourth respondent filed a Writ Petition No. 17641 of 1999 contending that the assessing authority should not pursue with the assessment without giving an opportunity of hearing to the petitioner herein and the writ petition was disposed of on November 2, 1999, with a direction to the Assessing Officer to give a reasonable opportunity of hearing before passing the final orders. Pursuant thereto, after giving a reasonable opportunity of hearing to the petitioner, the Assessing Officer passed an assessment order on March 29, 2000. The revision filed by the fourth respondent against that order was dismissed on March 12, 2003. Against the order dated March 12, 2003, the fourth respondent filed Writ Petitions Nos. 15527 to 15537 of 2003, pending the same, conditional stay was granted on October 16, 2003, on condition of the writ petitioner paying 50 per cent. of the tax arrears and furnishing a bank guarantee for remaining 50 per cent. of the tax arrears. Since both the conditions were not complied with, the stay got vacated automatically on No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lise the tax arrears only the impugned auction sale has been initiated. It is further stated that when the auction for sale of the property belonging to the fourth respondent for recovery of the tax dues was fixed on March 29, 2006, the petitioner herein represented by Damayanthi Mathaji filed Writ Petition No. 2765 of 2006 and an order of interim injunction was granted by this court on March 23, 2006, but the same was vacated on June 21, 2006. Thereafter, the petitioner represented by Ms. K. Sivathi filed a miscellaneous petition on July 13, 2006, to set-aside the order vacating the interim injunction. While so when the auction was to take place on December 12, 2006, the present writ petition has been filed in the last minute. Respondents Nos. 1 to 3 have further stated that on the principles of res judicata the present writ petition is not maintainable and the above writ petition is a collusive action of the fourth respondent and the writ petitioner. 5. The contention of the petitioner that the impugned proceedings is barred by limitation is contested and it is stated that after excluding the period of stay between March 23, 2006 and June 21, 2006, since the balance number of da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner to challenge the impugned notice are available only to the fourth respondent-assessee, against whose properties the impugned proceedings have been issued but not available to the petitioner herein. Learned senior standing counsel by drawing the attention of this court to the order dated December 8, 2006, passed by the third respondent in the application filed by the petitioner under rule 11 of the Rules submitted that none of the properties which are sought to be auctioned stands in the name of the petitioner and the properties standing in the name of the petitioner-trust have not been listed for sale on December 12, 2006 and as such, according to learned senior standing counsel, the petitioner by no stretch of imagination can be termed as an aggrieved person and so the petitioner has no locus standi to file the above writ petition. 9. Countering the abovesaid preliminary objections raised by learned senior standing counsel, learned senior counsel for the petitioner by placing reliance on a decision of the Supreme Court reported in Tax Recovery Officer v. Gangadhar Viswanath Ranade (Decd.) [1998] 234 ITR 188 submitted that the order of the third respondent dated D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an application under rule 11. Till the said application is adjudicated after giving the petitioner an opportunity of being heard, no sale can be conducted of the said property." 14. Therefore, when it is the case of the petitioner itself that, after the adjudication of the application filed by the petitioner under rule 11 of the Rules the sale of the properties can be conducted and when admittedly the application has been adjudicated and orders have been passed on December 8, 2006, there could not be any objection on the part of the petitioner for the impugned sale. As rightly contended by learned senior standing counsel for the Income-tax Department the only course open to the petitioner is to avail of the remedy provided for under rule 11(6) of the Rules i.e., to institute a suit in a civil court to establish the petitioner's right over the properties in question. Further, as pointed out by learned senior standing counsel, in the order dated December 8, 2006, the third respondent has observed that none of the properties which is sought to be auctioned stands in the name of the petitioner and the properties standing in the name of the petitioner-trust have not been listed f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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