9911796707
TMI Blog2011 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... the same day. One Gobind Ram Tibrewal who was one of the executors of the will of Smt. Indramani Singhania preferred an appeal purporting to be under rule 86 of Schedule II to the Income-tax Act (hereinafter referred to as the Act) before the Commissioner of Income-tax, Kanpur. On the death of Gobind Ram Tibrewal the petitioner continued with the appeal being the administrator of the estate of the late Smt. Indramani Singhania appointed by the High Court vide order dated May 2, 1996 in a Testamentary Case No. 12 of 1980 and there-after as a residuary legatee to the estate of the aforesaid deceased under the order dated January 4, 2000 of the High Court. The said appeal has been dismissed as not maintainable and being barred by time. 3. Aggrieved, the petitioner has invoked the writ jurisdiction of this court. 4. Necessary pleadings between the petitioner and respondents Nos. 1 and 2 have been exchanged and are complete. 5. The writ petition is listed for final hearing. 6. Counsel for the petitioner and respondents Nos. 1 and 2 are ready and agreeable for final hearing. 7. Respondent No. 3 was earlier represented by a counsel but he never fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst it. 12. Apart from the above, Sri Chopra argued that the petitioner had full knowledge of the auction sale. He had not participated in the proceedings at any point of time before the sale was conducted and, as such, after confirmation of the sale he cannot have any grievance and the only remedy available to him was to have applied to the Tax Recovery Officer under rule 63(2) of the Rules for setting aside the auction sale. The remedy of appeal to the Commissioner was not available to the petitioner in view of the scheme of Schedule II to the Act. 13. In view of respective submissions advanced on behalf of the contesting parties, the following two points arise for consideration : 1. Whether the appeal of the petitioner before the Commissioner of Income-tax purported to have been filed under rule 86 of Schedule II to the Act is maintainable ? 2. Whether the limitation for filing the appeal would run from the actual date of the order or from the date when the same was served upon the petitioner and, consequently whether the appeal is barred by time or not ? 14. I have considered the pleadings of the parties. 15. There is no disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with interest thereon from the date of sale proclamation to the date of making the deposit along with penalty. The second remedy is available under rule 61 of the Rules which empowers the defaulter or the person adversely affected by the sale to apply to the Tax Recovery Officer within 30 days from the sale to set aside the auction on the ground of non-service of notice or any other irregularity by depositing the amount recoverable under the recovery certificate. 18. Apart from the aforesaid two remedies available to the defaulter or the person who is adversely affected by the sale, a remedy to the purchaser has also been provided under rule 62 of the Rules to get the sale set aside on the ground that the defaulter was having no saleable interest in the property sold. 19. It is only when no application for setting aside the auction sale is moved by any one concerned or, if moved has been disallowed, the Tax Recovery Officer is entitle to proceed and to make an order confirming the sale whereupon the sale becomes absolute as envisaged under rule 63(1) of the Rules. Even where the sale has been confirmed a further remedy is provided under rule 63(2) of the Rules for gett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. The issuance of sale certificate is not an order and, as such, is not amenable to appeal. Therefore, the reasoning adopted by the appellate authority in holding that the appeal was not maintainable cannot be faulted with. 25. Sri Navin Sinha on the contrary emphasised that the description of the provision is not very material and the substance of the appeal is to be looked into to find out as the exact nature of the order impugned in appeal. According to him, there is a typographical error in mentioning rule 65 in the memo of appeal twice. In fact, the challenge in appeal is to both orders; one confirming the sale passed under rule 63 of the rules and the other directing for issuance of the sale certificate passed under rule 65(1) but due to some typographical error "Under rules 65 and 65(1) of the rules of the Second Schedule" has been typed instead of "Under rules 63 and 65(1) of the Second Schedule". 26. The argument of Sri Sinha appears to be not without substance. There is no occasion to mention rule 65 twice in the memo of appeal and since the relief claimed in the appeal is for setting aside the sale of the immovable property, it is apparent that the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rule 86 of the rules. The Division Bench held that the order passed by the Tax Recovery Officer confirming the sale is undoubtedly an original order. Rule 86 of the rules is an enabling provision providing for a remedy of appeal and the courts are always slow in excluding such a statutory remedy unless there are clear and obvious reasons that such a remedy is not available. The availability of remedy of appeal under rule 86 of the rules is dependent upon the fact as to whether the order appealed against is conclusive or not. The order passed under rule 63 of the rules is said to be absolute and not conclusive. The word "absolute" does not make the order conclusive and, therefore, the court went on to hold that an order confirming the sale would be an original order liable to be appealed against under rule 86 of the rules. 31. The aforesaid decision has been followed by the learned single judge of the Allahabad High Court with approval in the case of Subash Chandra Goyal v. TRO [2002] 255 ITR 289 (All). 32. Sri Chopra has argued that making the order absolute in effect gives conclusiveness to the order and, as such, the appeal under rule 86 of the rules would stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable against it. Therefore, the fundamental principle is that the party whose rights are affected by any order must have the knowledge of the order. 38. In the case of Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, AIR 1961 SC 1500 the apex court had an occasion to consider the question as to the starting point of limitation in a case under the Land Acquisition Act. It was a matter concerning a reference under section 18 of the Land Acquisition Act which provides for a limitation of six months from the date of the Collector's award for seeking a reference provided the person interested was not present before the Collector at the time of making of the award or had not received any notice of the date of pronouncement of the award. The Supreme Court observed as under (pages 1504, 5) : "The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression `the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be un ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
