TMI BlogGENERAL PROVISIONSX X X X Extracts X X X X X X X X Extracts X X X X ..... uld be liable to attachment in execution of a decree of a civil court, within the said period of fifteen days if— (a) he is satisfied, for reasons to be recorded in writing, that the defaulter is likely to conceal, remove or dispose of the whole or any part of the movable property; and (b) the realisation of the amount of the certificate would in consequence be delayed or obstructed. (3) The defaulter whose property has been so attached may furnish security to the satisfaction of the Tax Recovery Officer and on such acceptance of the security by the Tax Recovery Officer, the attachment shall be cancelled from the date on which the security is accepted. Mode of recovery. 3. (1) If the amount mentioned in the notice is not paid within the time specified therein, or within such further time as the Tax Recovery Officer may grant in his discretion, the Tax Recovery Officer shall proceed to realise the amount by one or more of the following modes, namely:— (a) by attachment and sale of the defaulter's movable property; (b) by attachment and sale of the defaulter's immovable property; (c) by arrest of the defaulter and his detention in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner. Disposal of proceeds of execution. 7. (1) Whenever assets are realised by sale, or otherwise, in execution of a certificate, the proceeds shall be disposed of in the following manner, namely:— (a) they shall first be adjusted towards the amount due under the certificate in execution of which the assets were realised and the costs incurred in the course of such execution; (b) if there remains a balance after the adjustment referred to in clause (a), the same shall be utilised for satisfaction of any other amount recoverable from the assessee under this Code which may be due on the date on which the assets were realised; and (c) the balance, if any, remaining after the adjustments under clauses (a) and (b) shall be paid to the defaulter. (2) If the defaulter disputes any adjustment under clause (b) of sub-paragraph (1), the Tax Recovery Officer shall determine the dispute. General bar to jurisdiction of civil courts, save where fraud alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reason stated in the claim or objection, such property— (a) was not, at the said date, in the possession of the defaulter or of some person in trust for him; (b) was not in the occupancy of a tenant or other person paying rent to the defaulter; or (c) being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person. (6) The Tax Recovery Officer shall disallow the claim, for reasons to be recorded in writing, if he is satisfied that the property was— (a) at the said date, in the possession of the defaulter as his own property and not on account of any other person; (b) in the possession of some other person in trust for the defaulter; or (c) in the occupancy of a tenant or other person paying rent to the defaulter. (7) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish his right to the property in disputes; but, subject to the outcome of such suit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Tax Recovery Officer who ordered the sale. Private alienation to be void in certain cases. 15. (1) Where a notice has been served on a defaulter under paragraph 1, the defaulter, or his representative in interest, shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money. (2) Where an attachment has been made under this Schedule, any private transfer, or delivery, of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. Prohibition against bidding or purchase by officer. 16. No officer or other person having any duty to perform in connection with any sale under this Schedule shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold. Prohibition against sale on holidays. 17. No sale under this Schedule shall take place on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized property in custody is likely to exceed its value. Agricultural produce. 24. (1) Where the property to be attached is agricultural produce the attachment shall be made by affixing a copy of the warrant of attachment— (a) where such produce is growing crop, on the land on which such crop has grown; or (b) where such produce has been cut or gathered, on the threshing floor or place for treading out grain or the like, or fodder-stack, on or in which it is deposited, in such manner as may be considered necessary. (2) A copy of warrant of attachment, where the property to be attached is agricultural produce, shall also be affixed on the outer door or on some other conspicuous part of the house in which the defaulter ordinarily resides, or with the leave of the Tax Recovery Officer, on the outer door or on some other conspicuous part of the house in which he— (a) carries on business or personally works for gain; or (b) is known to have last resided or carried on business or personally worked for gain. (3) Upon affixing the copy of warrant under sub-paragraphs (1) and (2), the produce shall be deemed to have passed into the possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any dividend thereon; (c) in the case of the other movable property (except as aforesaid) the person in possession of the same from giving it over to the defaulter. (2) A copy of such order shall be affixed on some conspicuous part of the office of the Tax Recovery Officer, and another copy shall be sent, in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and in the case of the other movable property (except as aforesaid), to the person in possession of the same. (3) A debtor prohibited under clause (a) of sub-paragraph (1) may pay the amount of his debt to the Tax Recovery Officer, and such payment shall discharge him as effectually as payment to the party entitled to receive the same. Attachment of decree. 27. (1) The attachment of a decree of a civil court for the payment of money, or for sale in enforcement of a mortgage or charge, shall be made by the issue to the civil court of a notice requesting the civil court to stay the execution of the decree unless and until— (a) the Tax Recovery Officer cancels the notice; or (b) the Tax Recovery Officer, or the defaulter, applies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. (1) Where the property to be attached consists of an interest of the defaulter, being a partner, in the partnership property, the Tax Recovery Officer may make an order charging the share of such partner in the partnership property and profits with payment of the amount due under the certificate. (2) The Tax Recovery Officer may, by the order referred to in sub-paragraph (1) or any subsequent order, appoint a receiver of the share of such partner in the profits, whether already declared or accruing and of any other money which may become due to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or such other order as the circumstances of the case may require. (3) The other persons shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same. Inventory. 33. In the case of attachment of movable property by actual seizure, the officer shall, after attachment of the property, prepare an inventory of all the property attached, specifying in it the place where it is lodged or kept, and shall forward the same to the Tax Recovery Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in writing of the defaulter, take place until after the expiry of at least fifteen days calculated from the date on which a copy of the sale 45 proclamation was affixed in the office of the Tax Recovery Officer. Sale of agricultural produce. 41. (1) Where the property to be sold is agricultural produce, the sale shall be held— (a) if such produce is a growing crop, on or near the land on which such crop has grown, or (b) if such produce has been cut or gathered, at or near the threshing floor or place for treading out grain or the like, or fodder-stack, on or in which it is deposited. (2) The Tax Recovery Officer may direct the sale to be held at the nearest place of public resort, if he is of the opinion that the produce is thereby likely to sell at a greater value. (3) The sale shall be postponed, where, on the produce being put up for sale— (a) a fair price, in the estimation of the person holding the sale, is not offered for it, and (b) the owner of the produce, or a person authorised to act on his behalf, applies to have the sale postponed till the next day or, if a market is held at the place of sale, the next market da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the recovery of the specific property and for compensation in default of such recovery. Negotiable instruments and shares in a corporation. 46. The Tax Recovery Officer may, notwithstanding anything to the contrary contained in this Schedule, authorise the sale of any property, which is a negotiable instrument or a share in a corporation, through a broker instead of directing the sale to be made by public auction. Order for payment of coin or currency notes to the Assessing Officer. 47. Where the property attached is current coin or currency notes, the Tax Recovery Officer may, at any time during the continuance of the attachment, direct that such coins or notes shall be credited to the Central Government and the amount so credited shall be dealt with in the manner specified in paragraph 7. PART III ATTACHMENT AND SALE OF IMMOVABLE PROPERTY ATTACHMENT Attachment. 48. The Attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring, or charging, the property in any way and prohibiting all persons from taking any benefit under such transfer or charge. Service of notice of attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Tax Recovery Officer, otherwise be given. Time of sale. 55. No sale of immovable property under this Schedule shall, without the consent in writing of the defaulter, take place until after the expiration of at least thirty days calculated from the date on which a copy of the proclamation of sale has been affixed on the property or in the office of the Tax Recovery Officer, whichever is later. Sale to be by auction. 56. (1) The sale shall be by public auction to the highest bidder and shall be subject to confirmation by the Tax Recovery Officer. (2) No sale under this paragraph shall be made, if the amount bid by the highest bidder is less than the reserve price, if any, specified under clause (d) of paragraph 53. Deposit by purchaser and resale in default. 57. (1) On every sale of immovable property, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent. on the amount of his purchase mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the purchaser, as penalty, a sum equal to five per cent. of the purchase money, but not less than one rupee. (2) Where a person makes an application under paragraph 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this paragraph. Application to set aside sale of immovable property on ground of non-service of notice or irregularity. 61. (1) Where immovable property has been sold in execution of a certificate by such Income tax Officer as may be authorised by the Chief Commissioner or the Commissioner in this behalf, the defaulter or any person whose interests are affected by the sale, may at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground— (a) that notice was not served on the defaulter to pay the arrears as required by this Schedule; or (b) of a material irregularity in publishing, or conducting, the sale. (2) No sale shall be set aside on any ground referred to in sub-paragraph (1) unless the Tax Recovery Officer is satisfied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, or some part thereof, or of any other immovable property of the defaulter, the Tax Recovery Officer may, on his application, postpone the sale of the property comprised in the order for sale, on such terms, and for such period as he thinks proper, to enable him to raise the amount. (2) In such case, the Tax Recovery Officer shall grant a certificate to the defaulter, authorising him, within a period to be mentioned therein, and notwithstanding anything contained in this Schedule, to make the proposed mortgage, lease or sale. (3) All moneys payable under the mortgage, lease or sale referred to in sub-paragraph (2) shall be paid to the Tax Recovery Officer and not to the defaulter. (4) No mortgage, lease or sale under this paragraph shall become absolute until it has been confirmed by the Tax Recovery Officer. Fresh proclamation before resale. 67. Every resale of immovable property, in default of payment of the purchase money within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore provided for the sale. Bid of cosharer to have preference. 68. Where the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended by one year, if the immovable property is required to be re-sold— (a) due to the amount of highest bid being less than the reserve price; (b) under the circumstances mentioned in paragraph 57 or paragraph 58; or (c) due to the sale being set aside under paragraph 61. (3) In computing the period of limitation under sub-paragraph (1), the following period shall be excluded— (a) the period during which the levy of the aforesaid tax, interest, fine, penalty or any other sum is stayed by an order or injunction of any court; (b) the period during which the proceedings of attachment or sale of the immovable property are stayed by an order or injunction of any court; or (c) the period commencing from the date of the presentation of any appeal against the order passed by the Tax Recovery Officer under this Schedule and ending on the day the appeal is decided. (4) Where immediately after the exclusion of the period referred in sub-paragraph (3), the period of limitation for the sale of the immovable property is less than 180 days, such remaining period shall be extended to 180 days and the aforesaid period of limitation shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrears, and the balance, if any, shall be paid to the defaulter. Withdrawal of 75. The attachment and management under this Part may be withdrawn at any time at management. the discretion of the Tax Recovery Officer, or if the arrears are discharged by receipt of such profits and rents or are otherwise paid. PART VI ARREST AND DETENTION OF THE DEFAULTER Notice to show cause. 76. (1) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Tax Recovery Officer has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison. (2) The provisions of sub-paragraph (1) shall not apply if the Tax Recovery Officer, for reasons recorded in writing, is satisfied— (a) that the defaulter has, with the object or effect of obstructing the execution of the certificate, after the drawing up of the certificate by the Tax Recovery Officer, dishonestly transferred, concealed, or removed any part of his property; or (b) that the defaulter has, or has had since the drawing up of the certificate by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the defaulter in the civil prison and shall in that event cause him to be arrested if he is not already under arrest. (2) In order to give the defaulter an opportunity of satisfying the arrears, the Tax Recovery Officer may, before making the order of detention— (a) leaves the defaulter in the custody of the officer arresting him, or of any other officer, for a specified period not exceeding 15 days; or (b) release him on his furnishing security to the satisfaction of the Tax Recovery Officer for his appearance at the expiration of the specified period if the arrears are not so satisfied. (3) The Tax Recovery Officer shall direct the release of the defaulter, who is under arrest, if he does not make an order of detention under sub-paragraph (1). Detention in and release from prison. 80. (1) Every person detained in the civil prison in execution of a certificate may be so detained— (a) where the certificate is for a demand of an amount exceeding two hundred and fifty rupees, for a period of six months; and (b) in any other case, for a period of six weeks. (2) The person so detained shall be released from detention— ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a portion thereof is in the occupancy of the defaulter and he or other occupant of the house refuses or in any way prevents access thereto; but, when the person executing any such warrant has duly gained access to any dwelling house, he may break open the door of any room or apartment if he has reason to believe that the defaulter is likely to be found there; (c) no room, which is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, shall be entered into unless the officer authorised to make the arrest has given notice to her that she is at liberty to withdraw and has given her reasonable time and facility for withdrawing. Prohibition against arrest of women or minors, etc. 84. The Tax Recovery Officer shall not order the arrest and detention in the civil prison of— (a) a woman; or (b) any person who, in his opinion, is a minor or of unsound mind. PART VII MISCELLANEOUS Officers deemed to be acting judiciadly. 85. Every Chief Commissioner, the Commissioner, Tax Recovery Officer or other officer shall while acting in the discharge of his functions under this Schedule, be deemed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um payable for the subsistence of a defaulter, who is arrested or detained in the civil prison, from the time of arrest until he is released shall be borne by the Tax Recovery Officer. (2) The sum shall be calculated on the scale fixed by the State Government for the subsistence of judgment-debtors arrested in execution of a decree of a civil court. (3) The sums payable under this paragraph shall be deemed to be the costs in the proceeding but the defaulter shall not be detained in the civil prison or arrested on account of any sum so payable. Forms. 93. The Board may prescribe the form to be used for any order, notice, warrant, or certificate to be issued under this Schedule. Power to make rules. 94. (1) The Board may make rules, consistent with the provisions of this Code, for regulating the procedure to be followed by Chief Commissioners, Commissioners, Tax Recovery Officers and other officers acting under this Schedule. (2) In particular, and without prejudice to the generality of the power conferred by sub-paragraph (1), such rules may provide for all, or any of the following matters, namely:— (a) the area within which Chief Commissioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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