9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (3) TMI 623 - HC - Income TaxRecovery of income-tax dues - Appeal against the order of Tax Recovery Officer - Sale of immovable property - Rule 63(2) Rule 86 - Delay in filing an appeal - rule 86 of the rules gives a statutory right of filing an appeal against the original order of the Tax Recovery Officer passed under the provisions of the rules contained in Schedule which is not conclusive in nature. Such an appeal is to be presented within 30 days from the date of the order. It may be noted that there is no provision for condoning the delay if any in presentation of such an appeal. Mention of wrong provision in the appeal - Held that - mere mentioning of a wrong provision in appeal would not take away the statutory right of the petitioner if the appeal is otherwise provided under the statute and is maintainable. appeal against the order of Tax Recovery officer - Held that - the appeal of the petitioner in addition to challenging the sale certificate was also directed against the order of the Tax Recovery Officer dated April 25 1988 passed under rule 63(1) of the rules confirming the auction sale which is not a conclusive order and as such is open to appeal under rule 86 of the Rules. - Appeal is maintainable. Period of limitation for filing an appeal - apparently there is delay of 117 days from the date of order - date of order versus date of service of order - Held that - the date of knowledge of the order according to the petitioner is August 18 1988 and the date of actual service and communication undisputedly happens to be August 29 1988. The appeal was preferred on September 19 1988. On September 18 1988 there was a holiday. Thus the appeal was within limitation both from the date of knowledge of the order and its service.
Issues Involved:
1. Maintainability of the appeal before the Commissioner of Income-tax under Rule 86 of Schedule II to the Income-tax Act. 2. Calculation of the limitation period for filing the appeal. Issue-wise Detailed Analysis: 1. Maintainability of the Appeal: - Appeal Filed Under Rule 86: The petitioner challenged the order confirming the auction sale and the issuance of the sale certificate. The appeal was purportedly filed under Rule 86 of Schedule II to the Income-tax Act. - Contentions: The petitioner argued that the appeal was maintainable against both the order confirming the sale (Rule 63) and the issuance of the sale certificate (Rule 65). The respondents contended that the appeal was not maintainable as it was directed against the sale certificate, which is not an order and thus not appealable. - Court's Analysis: The court noted that the memo of appeal mentioned Rule 65 twice, likely due to a typographical error. The intention was to challenge both the sale confirmation and the sale certificate. The court emphasized that the substance of the appeal should be considered over the incorrect mention of provisions. - Conclusive vs. Absolute Orders: The court examined whether the order confirming the sale under Rule 63 is conclusive. It found that Rule 63 does not use the term "conclusive," unlike other rules in the Schedule, indicating that the order is not conclusive. Therefore, the appeal is maintainable under Rule 86, which allows appeals against non-conclusive original orders of the Tax Recovery Officer. - Precedents: The court referred to the Bombay High Court's decision in Balkishandas v. Additional Collector and the Allahabad High Court's decision in Subash Chandra Goyal v. TRO, which supported the view that an order confirming the sale is not conclusive and is appealable. 2. Limitation Period for Filing the Appeal: - Facts: The order confirming the sale and the sale certificate were dated April 25, 1988. The appeal was filed on September 19, 1988. The petitioner claimed to have acquired knowledge of the order on August 18, 1988, and was served the order on August 29, 1988. - Legal Principle: The court discussed the principle that the limitation period should start from the date of communication or knowledge of the order, not merely the date of the order. This principle ensures fair play and natural justice, allowing the aggrieved party to avail of the remedy. - Precedents: The court cited the Supreme Court's decisions in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, Madan Lal v. State of U.P., and D. Saibaba v. Bar Council of India, which established that the limitation period starts from the date of communication or knowledge of the order. - Court's Conclusion: Since the petitioner was served the order on August 29, 1988, and the appeal was filed on September 19, 1988, it was within the limitation period. The appellate authority erred in dismissing the appeal as time-barred. Judgment: - The court quashed the order dated October 5, 2010, passed by the Commissioner of Income-tax, Kanpur, and directed the Commissioner to decide the appeal on the merits expeditiously. - The writ petition was allowed, but no order as to costs was made.
|
