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TMI Blog2025 (1) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... s enclosed herewith for your information and noting. 4. As per the notice issued on 17.11.2021 you were directed to inform the encumbrances, charges etc., on or before 24.11.2021 on the attached property which you have not complied. Therefore this office is compelled to proceed with the public auction of your property to recover the tax arrears. 5. If you wish to avoid public auction of your property, you are directed to pay the tax arrears of Rs. 46,72,041/- and interest thereupon without any further delay and co operate with the recovery proceedings. Your petition dated 22.11.2021 stands disposed." 3. An Assessment Order was passed by the Assessing Officer under Section 143(3) of the Income Tax Act, 1961 on 07.12.2011 in response to a Return of Income filed on 24.07.2009. No appeal was filed by the petitioner against the Assessment Order dated 07.12.2011 under Section 246A of the Income Tax Act, 1961. The Assessment Order dated 07.12.2011 attained finality as no appeal was filed. The petitioner was also issued with a Penalty Order dated 29.06.2012 under Section 271(1)(c) of the Income Tax Act, 1961. 4. Aggrieved by the same, the petitioner has filed an appeal before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Rule. 12. It is further submitted that the petitioner was running a jewellery business in the name of proprietor concerned as "Sri Lakshmi Jewellery Shop". The petitioner suffered huge loss and therefore is working as a labour with other proprietor concerned engaged in gold business. It is therefore submitted that on this count, the proceedings is liable to be quashed. 13. The learned counsel for the petitioner would submit that the pursuant to the Order passed by this Court on 23.02.2021 by depositing Rs. 10,00,000/-, the petitioner insofar as deposited a sum of Rs. 70,000/- at the rate of Rs. 10,000/- p.m. few months thereafter. It is submitted that in the Impugned Order dated 24.11.2021, the petitioner may be given a temporary relief to discharging tax liability. 14. In support of the relief, the learned counsel for the petitioner has placed reliance on the following decisions:- i) Sapana Charudatt Ranadive Vs. Assistant Commissioner of Income Tax 17(3), Mumbai, [2019] 108 taxmann.com 384 (Bombay); ii) Gauravbhai Hargovindhai Dave vs. Tax Recovery Officer, (2019) 110 taxmann, com33 (Gujarat). 15. Opposing the prayer, the learned Senior Standing Counsel for the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised of the extension of the time limit due to the absence of bidders in the public auction held on 25/03/2021, it is essential to clarify that this extension was necessitated by procedural considerations to ensure fairness in the auction process. The subsequent issuance of a notice for settling a sale proclamation in Form No. ITCP-17 on 17/11/2021, as indicated by DIN & Letter No. ITBA/COM/F/17/2021- 22/1037014674(1), was undertaken in conformity with regulatory requirements to uphold transparency and compliance with statutory obligations. 24. The petitioner's contention regarding Rule 10(2) of the Second Schedule to the Income Tax Act 1961 is acknowledged However, it's crucial to note that while Rule 10(2) implies the conclusiveness of the Tax Recovery Officer's (TRO) decision, Section 246(2) of the Income Tax Act, 1961, grants the right of appeal to aggrieved parties against certain orders, including those akin to rectifications made by the TRO. This provision allows taxpayers to challenge decisions they deem erroneous or unjust through the appellate process Therefore, despite the appearance of conclusiveness under Rule 10(2), the statutory framework provides aven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments filed by the petitioner. 19. There is no dispute that the petitioner has suffered an adverse Assessment Order dated 07.12.2011. The limitation for filing an appeal before the Appellate Commissioner expired on 16.01.2012. The petitioner has also not filed any appeal against the aforesaid Assessment Order dated 07.12.2011. 20. The petitioner thereafter suffered a Penalty Order under Section 271(1)(c) of the Income Tax Act, 1961 on 29.06.2012. The petitioner's appeal before the Appellate Commissioner against the aforesaid Penalty Order was also dismissed on 16.09.2013. The last date for filing an appeal expired on 15.11.2013. Since the petitioner did not file further appeals before the Appellate Commissioner and the Appellate Tribunal, liability under both the Assessment Order dated 07.12.2011 and the Penalty Order dated 29.06.2012 stand confirmed against the petitioner. 21. As per Rule 68B of the 2nd schedule to the Income Tax Act, 1961, no sale of immovable property shall be made under part III after the expiry of 7 years from the end of the financial year in which the order giving rise to a demand of any tax, interest, fine, penalty or any other sum, for the recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es mentioned in Rule 57 or Rule 58 or at the same is set aside under Rule 61, the aforesaid period of limitation for the sale of immovable property shall extend by one year. 28. Since the date of auction was fixed to 25.03.2021, on which date there are no bidders, it can be construed that the situation was covered by the 1st instance under 2nd proviso to Rule 68B of the 2nd schedule to the Income Tax Act, 1961 i.e., where the immovable property is required to be resold due to the amount of highest pay being less than the reserve price fixed. 29. Therefore, the extension of the period for bringing the immovable property of the petitioner by one year by the Chief Commissioner of Income Tax vide order dated 02.11.2021 cannot be questioned as it is in consonance with the 2nd proviso to Rule 68B of the 2nd schedule to the Income Tax Act, 1961. 30. Therefore, the argument of the petitioner that the respondent Income Tax Department was not authorised to extend the period of auction by one year to 31.03.2022 on the ground that the situation contemplated in Rule 57, Rule 58 Rule 61 of the 2nd schedule to the Income Tax Act, 1961 were not attracted cannot be countenanced. 31. As far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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