Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2018 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (3) TMI 388 - HC - Income TaxRecovery of tax dues of defaulter from the purchaser of property - Interpretation of clause (iii) of sub-rule (2) of Rule 68B of the Second Schedule to the Income Tax Act - Remedy of writ under Article 226 - Held that:- It is seen that the purpose of sub-rule (2) of Rule 68B is to exclude the period during which the Tax Recovery Officer is prevented from continuing the proceedings for realisation of the tax arrears by virtue of orders passed by Courts as also the period during which it is inappropriate for the Tax Recovery Officer to continue the proceedings for realization of the tax arrears on account of the pendency of the proceedings challenging the decisions taken by the Tax Recovery Officer, irrespective of the fact as to whether there is any interim order in such proceedings or not, while computing the outer time limit provided for under sub-rule (1) of Rule 68B. Looking at the issue in the above perspective, I have no doubt that the proceedings are liable to be treated as proceedings falling within the scope of the expression 'appeal' contained in Clause (iii) of subrule (2) of Rule 68B of the Second Schedule. Any other interpretation of the said provision would go against the principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. The question aforesaid is thus answered accordingly. Remedy of writ under Article 226 is extraordinary and discretionary and that the exercise of discretion to issue a writ shall be for the purpose of granting an equitable relief to the party. It is equally well established that the power under Article 226 may not be exercised by the court to strike down an illegal order or action although it would be lawful to do so, if the exercise of the jurisdiction in a given matter would resurrect a grave illegality or would work out injustice to others. High Court cannot be oblivious of the conduct of the party invoking the remedy while exercising the said jurisdiction. In the instant case W.P. was instituted by the petitioner with an undertaking that he would liquidate the entire tax arrears of the defaulter. Had the petitioner not made such an undertaking when the said matter was taken up for hearing, this Court would not have entertained the said writ petition in exercise of the discretionary power and in that event, the Revenue would have at least received the balance sale consideration from the successors of the auction purchaser who were willing to pay the same as indicated in the judgment in the writ petition. Having obtained a favourable order in the writ petition, the petitioner changed his stand and refused to liquidate the tax arrears of the defaulter. This is not a fit case at all for exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution.
|