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2019 (6) TMI 760 - HC - Income TaxRecovery proceedings - attachment orders - arrears of tax by attachment and sale of the defaulter's movable or immovable properties - existence of alternate remedy - attaching the property of the petitioner u/s 222 who is is not declared nor is deemed to be an assessee in default - petitioner has purchased the impugned property much before passing of the assessment order and raising of demand - HELD THAT:- The respondent has issued the impugned notice in the form of an order of attachment of immovable property and the writ-applicant has straightway approached this Court and filed this writ-application. In our considered view, this writ-application is not the proper remedy which the writ-applicant should have availed. In this regard, Rule 11 referred to above is very clear. In terms of Rule 11 if any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection. The procedure for such investigation and the manner in which the proceedings to be conducted are enumerated under Rule 11 of the said Rules. If the petitioner's claim is that the property is not liable for such attachment, then the petitioner has to make a claim before the Tax Recovery Officer, and for such reason, the petitioner could not have approached this Court invoking the jurisdiction under Article 226 of the Constitution of India. Therefore, the Court holds that the petition is not maintainable. However, considering the fact that the Income Tax Act and Rules framed thereunder, especially Rule 11 under the 2nd Schedule, provides for a remedy to the assessee, the petitioner is at liberty to avail such a remedy. We are fortified by a decision of the Supreme Court in the case of Isha Beevi and others v. Tax Recovery Officer, Quilon and others [1975 (9) TMI 2 - SUPREME COURT] In the result, all the three writ-applications fail and are hereby rejected as “not maintainable” with a direction to the writ-applicants to file a claim before the respondent in terms of Rule 11(1) of the Second Schedule to the Income Tax Act, 1961, within a period of four weeks from the date of receipt of copy of this order.
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