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2017 (8) TMI 386 - HC - Income TaxSale of property by the bank under SARFAESI Act of 2002 - Right of the Income Tax department over the property - Attachment order by IT department since 1976 - challenge to the sale conducted by the bank - Held that:- The same has not been produced from any of the pleadings before any of the forai before which the parties are litigating. As noted above, there are at least two writ petitions pending which does not enclose the order of attachment dated February 23, 1976. When the writ petition was taken up for hearing noticing such fact, a request was made to the department to produce such order of attachment. The department had filed a supplementary affidavit. However, the order of attachment dated February 23, 1976 has not seen the light of the day. The order of attachment dated February 23, 1976 is however referred to in the diverse correspondence issued on behalf of the Income Tax Authorities and as late as in 2016. It is not understood how an Income Tax Authority is in a position to write the letter on the basis of an order of attachment dated February 23, 1976 as late in 2016 is unable to produce the same when required at the time of hearing. The order of attachment dated February 23, 1976 is required for the purpose of understanding the scope, ambit and extent thereof. It may or may not relate to an immovable property. It may relate to the rent receivable in respect of the immovable property or anything otherwise. Without the order of attachment being actually placed for consideration any exercise in trying to understand the scope, extent and ambit of the order of attachment would be an exercise in futility. It would be in the rem of speculation. The foundational basis therefore is not available to the Income Tax Department. The bank had proceeded to put up an immovable property for sale under the provisions of Act of 2002. The bank had sold 1/9th share in an immovable property without taking actual physical possession thereof. The act of sale is under challenge in a proceeding pending before the Debts Recovery Tribunal, Kolkata. The borrower has raised various valid points which impinge upon the validity of the sale conducted by the bank. They are however to be looked at by the Debts Recovery Tribunal, in accordance with law.
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