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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 ..... ovable property is required to be resold due to the amount of highest pay being less than the reserve price fixed. 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. 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. Defence of the petitioner, claiming that the petitioner is a labourer and therefore the property of the petitioner was exempted from attachment by virtue of Rule 10 of the 2nd schedule to the Income Tax Act, 1961 read with section 60 of the Civil Procedure Code, 1908 - It has to be examined from the status of the petitioner at the time of the Assessment Order / Penalty Order which has given rise to the proceedings under the 2nd schedule to the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained 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 Commissioner of Income Tax (Appeals)-I, Coimbatore. Vide order dated 16.09.2013, the said appeal was also dismissed by the Commissioner of Income Tax (Appeals)-I. No further appeal has been filed against the said order dated 16.09.2013 of the Commissioner of Income Tax (Appeals)-I, Coimbatore. 5. Thus, both the orders of the Commissioner of Income Tax (Appeals)-I, Coimbatore dated 16.09.2013 and the order of the Assessing Officer dated 07.12.2011 and 29.06.2012 have attained finality and liability against the petitioner stood confirmed. 6. Since the amount that was assessed to be paid by the petitioner had remained unpaid, the petitioner's property was attached on 27.01.2015. However, no sale was made pursuant to the aforesaid Attachment Order dated 27.01.2015. 7. A Second Attachment Order came to be passed on 10.02.2021. In response to the same, the petitioner filed an application before the respondent with a prayer to drop the proceedings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent would submit that the Income Tax Department has obtained information negativing that the petitioner is not a labourer, he was a gold trader and therefore the exemption under Rule 10 of the 2nd Schedule to the Income Tax Act, 1961 read with Section 60 of the C.P.C. would not come to the benefit of the petitioner. 16. That apart, it is submitted that as far as limitation is concerned in Paragraph No.18 of the affidavit filed in support of the present writ petition filed by the petitioner, a reference was also made to Paragraph Nos.18 to 20 and 24 of the Counter Affidavit read as under:- 18. In response to the petitioner's contention regarding the expiration of the time limit for recovery proceedings under Rule 68B, it is imperative to scrutinize the veracity of their claims. The provided dates of assessment orders (17/12/2011 and 20/06/2012) and finalization of tax/penalty orders (31/03/2012 and 31/03/2014), meticulously examined against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 avenues for appeal, ensuring procedural faimess and the protection of taxpayer rights. "246. (2) Notwithstanding anything contained in subsection (1), any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) before the Ist day of June, 2000 against such order" In light of the judgment by High Court of Calcutta in the case of Rakesh Kumar Shaw v. Commissioner of Income-tax, it is evident that the High Court's jurisdiction to entertain writ petitions is discretionary, especially when alternative remedies are available. The judgment emphasizes that while the court may possess jurisdiction, the existence of an alternative remedy influences the exercise of discretion. The court may decline to invoke its jurisdiction if adequate alternative remedies are deemed more efficacious, particularly when disputed questions of fact are involved. Moreover, the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recovery of which the immovable property has been attached, has become conclusive under the provisions of section 245-I or, as the case may be, final in terms of provisions of chapter XX. Section 245-I of the Income Tax Act, 1961 relates to order of the Settlement Commission. Chapter XX deals with appeals before the Appellate Forum. 22. The Appellate Commissioner dismissed the appeal of the petitioner on 16.09.2013. Since no further appeal was filed by the petitioner before the Appellate Tribunal against the aforesaid Penalty Order dated 16.09.2013, the said order became final on 15.11.2013. 23. As far as the present facts are concerned, the 7 years period from the end of the financial year of the Assessment Order dated 07.12.2011 would have expired on 31.03.2019. The 7 years period from the end of the financial year of the Penalty Order dated 29.06.2012 would have been expired on 31.03.2020. However, the petitioner had filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the defence of the petitioner, claiming that the petitioner is a labourer and therefore the property of the petitioner was exempted from attachment by virtue of Rule 10 of the 2nd schedule to the Income Tax Act, 1961 read with section 60 of the Civil Procedure Code, 1908 is concerned, it has to be examined from the status of the petitioner at the time of the Assessment Order / Penalty Order which has given rise to the proceedings under the 2nd schedule to the Income Tax Act, 1961. 32. The change in the status of the petitioner after the rights accrued to the Income Tax Department to attach the property of the petitioner cannot be whittled down. Therefore, a reference to Rule 10 of the 2nd schedule to the Income Tax Act, 1961 cannot come to the rescue of the petitioner. 33. Consequently, the challenge to the Impugned Order dated 24.11.2021 extending the time for bringing the immovable property of the petitioner to sale by auction ..... 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