TMI Blog2011 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... he auction sale which is not a conclusive order and as such is open to appeal under rule 86 of the Rules. - Appeal is maintainable. Period of limitation for filing an appeal - apparently there is delay of 117 days from the date of order - date of order versus date of service of order - Held that:- the date of knowledge of the order, according to the petitioner is August 18, 1988 and the date of actual service and communication undisputedly happens to be August 29, 1988. The appeal was preferred on September 19, 1988. On September 18, 1988 there was a holiday. Thus, the appeal was within limitation both from the date of knowledge of the order and its service. - - - - - Dated:- 30-3-2011 - PANKAJ MITHAL, J. JUDGMENT Pankaj Mithal J.- 1. Challenging the order dated October 5, 2000 (annexure 9 to the writ petition) passed by the Commissioner of Income- tax, Kanpur, the petitioner has prayed for issuance of a writ of certiorari quashing the same and a writ of mandamus directing respondent No. 1 to decide the petitioner's appeal on the merits within a time bound period. A further prayer has also been made for quashing confirmation of the auction sale and the sale ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate both dated April 25, 1988 were served upon the petitioner on August 29, 1988. The petitioner acquired knowledge of the auction sale, the order of sale confirmation and issuance of the sale certificate for the first time on August 18, 1988. The appeal under rule 86 of Schedule II to the Act (hereinafter referred to as the "Rules") was filed on September 19, 1988. It is within limitation from the date of knowledge. He has further submitted that where statutes provide a particular period for filing an appeal from the date of the order, it has been interpreted to mean the date of service of the order. Therefore, the actual date of the order is not material for calculating limitation for filing appeal. The order confirming the sale dated April 25, 1988 was served and communicated to the petitioner on August 29, 1988. The appeal is therefore within time. 10. The second contention of Sri Sinha is that neither the order confirming the sale passed under rule 63(1) of the Rules nor the order issuing the sale certificate under rule 65 of the Rules are conclusive and, therefore, an appeal lies against the same under rule 86 of Schedule II to the Act. 11. Sri Chopra, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contemplated to be served upon the defaulter to make payment of the amount mentioned in the recovery certificate before executing the same. Then on attachment of the immovable property also, the order of attachment is required to be served upon the defaulter and a proclamation in this regard is to be issued. Thereafter, a sale proclamation in respect of the immovable property attached is to be issued by beat of drums or other customary mode and by affixation of the copy of proclamation on a conspicuous part of the property and in the office of the Tax Recovery Officer. It may also be published, at the discretion of the Tax Recovery Officer, in the Official Gazette. The proclamation is supposed to contain the description of the property to be sold, the amount of the recovery for which sale is being affected, the reserve price of the property and the time and place of auction sale not being less than 30 days from the affixation of the sale proclamation on some part of the property or in the office of the Tax Recovery Officer. The highest bid received in the public auction is subject to confirmation by the Tax Recovery Officer provided the bid is not less than the reserve price spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such an appeal. The relevant clauses of rule 86 of the rules are quoted below : "86. (1) 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 Chief Commissioner or Commissioner. (2) Every appeal under this rule must be presented within thirty days from the date of the order appealed against." 21. Thus, an appeal under rule 86 of the rules lies against the original order of the Tax Recovery Officer passed under the Rules contained in the Schedule provided such an order is not conclusive in nature. The limitation for preferring an appeal under rule 86 of the rules is 30 days from the date of order. 22. Let me now first examine the first point for determination mentioned above as to 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. 23. A perusal of the memo of appeal which has been filed as annexure 2 to the writ petition reveals that the appeal was preferred against the order(s) passed "Under rules 65 and 65(1) of the Second Schedule" and the relief claimed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 63 of the rules provides that after the procedure for making the sale has been completed and where there is no application by any party for getting the sale set aside or where such application, if any, has been disallowed, he shall pass the order confirming the sale. The aforesaid provision further states that the sale on such confirmation shall become absolute. However, the word "conclusive" has not been used in the provision. It does not say that the sale would be conclusive. On comparison of other provisions contained in the rules, I find that in many of them, especially rule 10 regarding exemption of property from attachment, it has been provided that the Tax Recovery Officer's decision would be "conclusive". However, such a terminology has not been used in rule 63 of the rules and, as such, there is a mark departure in the language used in rule 63 of the rules vis-a-vis the other rules. It is thus apparent that rule 63 of the rules does not contemplate the order of confirmation of sale to be a conclusive order. If the order confirming the auction sale is not conclusive, an appeal lies against it under rule 86 of the rules. 30. A similar controversy, as to the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34. Accordingly, the appeal is held to be maintainable. 35. This brings me to the second point of determination mentioned earlier as to whether the limitation for filing the appeal would run from the actual date of the order or from the date of service of the order and, consequently as to whether the appeal is barred by limitation. 36. There is no dispute to the fact that the order confirming the sale was passed on April 25, 1988 and the sale certificate was also issued on the same day. The appeal was presented under rule 86 of the rules on September 19, 1988. The limitation for filing the appeal under rule 86(2) of the rules is 30 days "from the date of the order". Thus, the appeal apparently appears to be beyond time by 117 days. However, the argument is that the limitation for filing the appeal would start running from the date when the order was served and the date of service of the order would be recognised as the date of the order. 37. Generally speaking, judicial and quasi-judicial orders are required to be passed in the presence of the parties or their representatives and where parties or their representatives are not present, normally the orders are communicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the "date of the order" for presenting the appeal. The Supreme Court heavily relied upon its earlier decision in the case of Raja Harish Chandra Raj Singh, AIR 1961 SC 1500 and interpreted the expression "date of order" to mean the date of knowledge of the order passed without notice to and in the absence of the appellant. 40.In a recent case of D. Saibaba v. Bar Council of India [2003] 6 SCC 186 the Supreme Court was seized with the consideration of the expression "sixty days from the date of that order" used in section 48AA of the Advocates Act, 1961 which confers power of review upon the authority concerned. The court held that where the law provides a remedy to a person, the provision has to be so construed to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. The words "the date of that order", there-fore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. 41. In short, the ratio is that for the purposes of calculating limitation the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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