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2016 (2) TMI 42 - HC - Indian LawsNon-deposit of the entire amount as envisaged under rule 60 of the Second Schedule to the Income Tax Act - Recovery proceedings - whether the provisions of rule 60 of the Second Schedule to the Income Tax Act have not been satisfied by the respondents No.1 to 3 and hence, the sale in favour of the petitioners could not have been set aside? - Held that:- On a reading of the proclamation for sale as a whole, it is not possible to state that the same specifies the sum of ₹ 1,27,30,527/- as the amount for the recovery of which the sale is ordered, inasmuch as, the same clearly says that such amount was due as on 30th June, 2006. The proclamation also refers to the contents of the certificate issued by the Presiding Officer, DRT which says that the sale is for the recovery of a sum of ₹ 71,88,819.87 ps. with further interest payable at the rate of 12% per annum from 27th December, 1999 till realization and the costs, charges and expenses of the proceedings for recovery thereof and says that the sale is for satisfaction of such certificate. Therefore, the amount specified in the sale proclamation would come to the amount specified as payable till 30th June, 2006 plus interest at the rate of 12% per annum on the sum of ₹ 71,88,819.87 paise from 30th June, 2006 till 28th November, 2006 namely, the date of publication of the proclamation of sale. In view of the provisions of rule 60 of the Second Schedule to the Income Tax Act, with effect from 28th November, 2006, that is, the date of the sale proclamation, the interest has to be calculated at the rate of 15% per annum. In the present case, it appears that due to oversight, or may be, due to a misreading of rule 60 of the Second Schedule to the Act, the certified debtor paid the amount specified in the proclamation of sale payable as on 30th June, 2006 with interest at the rate of 15% per annum from the date of the proclamation of the sale. Nonetheless, the fact remains that the total amount as specified in the proclamation of sale was not deposited within the prescribed period. In the opinion of this court, while equity may favour the certified debtor, the case cannot be decided on the basis of equities when the statutory provision is clear and unambiguous. As contemplated under rule 60 of the Second Schedule to the Act was required to be deposited within a period of thirty days from the date of the sale. Albeit the shortfall is very small, nonetheless, the respondents No.1 to 3 have failed to deposit the entire amount within the prescribed period of thirty days. Under the circumstances, the certified debtor is not entitled to the benefit of rule 60 of the Second Schedule to the Act as the requirements thereof have not been strictly complied with. It is evident that the requirements of rule 60 of the Second Schedule to the Income Tax Act, 1961 have not been satisfied. Under the circumstances, the application made by the first respondent for setting aside the sale held on 8th January 2007, could not have been allowed. The impugned order passed by the Appellate Tribunal setting aside the order passed by the Presiding Officer, Debts Recovery Tribunal and confirming the order passed by the Recovery Officer setting aside the sale in favour of the petitioners, therefore, cannot be sustained. 23. For the foregoing reasons, the petition succeeds and is accordingly allowed.
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