TMI Blog2014 (10) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale, not being one that is made conclusive under Second Schedule to the Income Tax Act, the order would be an appealable order for the purposes of Rule 86. The act of confirmation of sale by the Tax Recovery Officer is in terms of Rule 63 of the Second Schedule - when an order of sale is passed by the Tax Recovery Officer, a person aggrieved by that order cannot bypass the requirements in the Schedule, by not preferring an application to set aside the sale and then opting to challenge the order passed under Rule 63, confirming the sale - To allow a person to do so, would do violence to the procedural scheme contemplated in the Second Schedule – there is no reason to interfere with the findings of the CCIT on the maintainability of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Recovery Officer took up the matter with the Chief Commissioner of Income Tax and sought permission from him for going ahead with the sale. On getting the said permission, the Tax Recovery Officer intimated the petitioner of the fact that he was proposing to go ahead with the sale. Although the petitioner requested for deferment of the sale by a month, the said request was not granted and a proclamation dated 01.05.1995 was issued for conducting the auction on 12.05.1995 in respect of 4 Acres and 91 Cents of land after fixing a reserve price of ₹ 14,73,000/-. The facts in the writ petition disclose that the auction took place on the said date and was confirmed in favour of one T.A.Moideen who bid the property for ₹ 15,11,000/- a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly no order passed by the Tax Recovery Officer on the said application. This prompted the petitioner to prefer an appeal to the Chief Commissioner of Income Tax in terms of Rule 86 of the IInd Schedule to the Income Tax Act, to quash the sales certificate issued by the Tax Recovery Officer under Rule 65 and to set aside the auction of the immovable property itself. Ext.P22 is the order that is passed by the Chief Commissioner of Income Tax and it is this order that is impugned in this writ petition. 4. The grounds of challenge against Ext.P22 are mainly that the Chief Commissioner did not consider the primary contention of the petitioner, with regard to propriety of the Tax Recovery Officer in conducting the auction of the property in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri.Anil.D.Nair, learned counsel appearing on behalf of the petitioner, Sri.Jose Joseph, Standing counsel for the Income Tax Department as also Sri.Sreelal N. Warrier, learned counsel appearing on behalf of the 3rd respondent. 7. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that in Ext.P22 order, that is impugned in this writ petition, the Chief Commissioner of Income Tax essentially finds against the petitioner on two counts. First, it is found that the petitioner had not taken any action in terms of Rules 60 and 61 of the Second Schedule to the Income Tax Act, for the purposes of setting aside the sale of immovable property by the Tax Recovery Officer. It is also fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Second Schedule to the Income Tax Act, which deals with the procedure to be followed by the Income Tax authority for recovery of tax due from an assessee in default, the procedure that is contemplated provides an opportunity to a person aggrieved by the order of the Tax Recovery Officer effecting a sale of the property, to prefer an application to set aside the sale on the grounds specified therein. These applications can be preferred in terms of Rules 60 and 61. The act of confirmation of sale by the Tax Recovery Officer is in terms of Rule 63 of the Second Schedule. Rule 63 makes it clear that the order of confirmation of sale can be made by the Tax Recovery Officer only in a situation where no application is made for setting asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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