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2022 (8) TMI 1137 - MADRAS HIGH COURTRecovery proceedings - attachment orders for the rents from the property - deceased assessee appears to have divorced his wife - HELD THAT:- The action taken by the Income Tax Department in this case is to secure its interest by attachment of rent. Prima facie, there is nothing untoward in this regard as admittedly, the petitioners are beneficiaries under the Will of the deceased assessee dated 07.06.2007, to the exclusion of R2 and R3. As per the provisions of Section 159 of the Income tax Act read with Section 2(11) of the CPC, the petitioners are LRs of the assessee as a legal representative connotes any person ‘intermeddles with the estate of the deceased’. Rule 86 of the Second Schedule provides that An appeal from any original order passed by the Tax Recovery Officer under this Schedule, not being an order which is conclusive, shall lie to the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. (2) Every appeal under this rule must be presented within thirty days from the date of the order appealed against. (3) Pending the decision of any appeal, execution of the certificate may be stayed if the appellate authority so directs, but not otherwise. A query was put to Standing counsel as to whether an order of attachment would tantamount to ‘an original order passed by the TRO under the schedule’, and the stand of the revenue is that the impugned order in these Writ Petitions dated 22.11.2019 is very much amenable to appeal under Rule 86 of the Second Schedule. This is recorded. Thus, if at all the petitioners are aggrieved by the impugned attachment, they may well file an appeal before the Principal Chief Commissioner/Chief Commissioner/Principal Commissioner /Commissioner in terms of Rule 86 of the second schedule. Sub-rule (3) also provides for interim relief pending appeal. Hence, seeing as the submissions of the petitioners turn on appreciation of several facts including the extent of the property and rental income attributable to the deceased assessee, it would be appropriate that such submissions are made before the Principal Chief Commissioner/Chief Commissioner/Principal Commissioner /Commissioner by way of appeals under Rule 86 of the second schedule. The petitioners are thus relegated to statutory remedy and are permitted to file appeals and stay petitions if they desire, in terms of Rule 86(1) & (3) of the Second Schedule. If filed as aforesaid, the appellate authority shall entertain the same and dispose the stay petitions within a period of two (2) weeks from date of receipt, after hearing the petitioners. The timelines as aforesaid shall be strictly implemented. The interim order that the petitioners have been enjoying in these Writ Petitions shall continue for a period of four (4) weeks from today or till disposal of the stay petitions, whichever is earlier.
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