1973 (11) TMI 4 - HC - Income Tax

This appeal is by the assessee-company and it is directed against the judgment and order discharging a rule nisi obtained by the appellant upon the view that as the appellant failed to adopt and pursue the alternative remedy which was available to it a writ-court ought not to grant it any relief under article 226 of the Constitution - If an proclamation of sale mention two times and places of sale whether the sale proclamation of the sale would be valid

Issues Involved:
1. Validity of the sale held on August 14, 1970.
2. Availability and adequacy of alternative remedies.
3. Jurisdiction and legality of the Tax Recovery Officer's actions.
4. Material irregularity versus nullity in the sale proclamation.

Detailed Analysis:

1. Validity of the Sale Held on August 14, 1970:
The primary issue in this case was whether the sale of the appellant-company's property on August 14, 1970, was valid. The appellant argued that the sale was void due to the incorrect dates mentioned in the sale proclamation, which listed both August 14 and August 22, 1970, as the sale dates. The court found that the sale proclamation's ambiguity rendered the sale void, as it did not meet the mandatory requirements of stating the time and place of the sale correctly under Rule 53 of Schedule II to the Income-tax Act, 1961. The court emphasized that the statutory conditions provided in Rule 53 are similar to Order 21, Rule 66, of the Civil Procedure Code, and must be strictly followed to ensure the validity of the sale.

2. Availability and Adequacy of Alternative Remedies:
The learned trial judge initially dismissed the appellant's application under article 226 of the Constitution on the grounds that the appellant had an alternative remedy available under Rule 86 of Schedule II to the Income-tax Act, 1961. However, the appellate court disagreed, noting that there was no original order passed by the Tax Recovery Officer on August 14, 1970, against which an appeal could be made under Rule 86. The court also found that the appellant's review petition under Rule 87(1) was incompetent due to the lack of such an order. Therefore, the alternative remedies were deemed inadequate and inapplicable in this case.

3. Jurisdiction and Legality of the Tax Recovery Officer's Actions:
The court examined whether the Tax Recovery Officer had the jurisdiction to conduct the sale on August 14, 1970. It concluded that the officer assumed jurisdiction without fulfilling the necessary conditions precedent, as the sale proclamation was ambiguous and did not clearly state the sale date. The court held that the officer's actions were not merely irregular but illegal, as they contravened the mandatory provisions of Rule 53. The court cited several precedents, including Basharutulla v. Uma Churn Dutt and Tikendrajit Ghosh v. Mritunjoy Mondal, to support its conclusion that a sale conducted under such circumstances is void.

4. Material Irregularity Versus Nullity in the Sale Proclamation:
The court distinguished between material irregularity and nullity, stating that the ambiguity in the sale proclamation was not a mere irregularity but an illegality that vitiated the sale. The court noted that the presence of two different dates in the sale proclamation created confusion and undermined the fairness of the public auction. The court referenced the decision in Jayarama Aiyar v. Virdhagiri Aiyar, which held that serious irregularities affecting the publicity of the sale amount to illegality, making the sale void. The court also considered affidavits from individuals who went to the Tax Recovery Officer's office on August 22, 1970, expecting the sale to occur on that date, further demonstrating the confusion caused by the ambiguous proclamation.

Conclusion:
The court allowed the appeal, setting aside the judgment and order of the learned trial judge dated June 7, 1971. It issued a writ of mandamus commanding the respondent to withdraw and cancel the sale held on August 14, 1970, and clarified that the respondent could reissue a fresh sale proclamation in accordance with the law. The court emphasized the importance of adhering to statutory requirements in sale proclamations to ensure the validity and fairness of public auctions. The appeal was allowed with no order as to costs.

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