TMI Blog1973 (2) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... WARUP J.-This appeal has been preferred by an auction purchaser against the judgment of the learned single judge allowing the writ petition filed by the assessee challenging the validity of the sale of his properties held in recovery of certain dues under the Income-tax Act. A certificate of recovery for Rs. 33,695 was sent by the taxing authority to the Tax Recovery Officer on July 20, 1959. The assessee preferred an appeal against the imposition of penalty. This appeal was allowed on December 6, 1961, and the penalty of Rs. 19,200 was reduced by Rs. 13,300. The amount that remained recoverable after the appellate order was only Rs. 20,395. The Tax Recovery Officer proceeded with the sale on the basis of the recovery certificate issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned single judge did not accept the contention of the department and the auction-purchaser and held that the sale proceedings were not saved by clause (c) of section 3 of the Act. Clauses (b) and (c) of section 3 of the Act run as follows : "(b) where such Government dues are reduced in such appeal or proceeding,- (i) it shall not be necessary for the taxing authority to serve upon the assessee a fresh notice of demand ; (ii) the taxing authority shall give intimation of the fact of such reduction to the assessee, and where a certificate has been issued to the Tax Recovery Officer for the recovery of such amount, also to that officer ; (iii) any proceedings initiated on the basis of the notice or notices of demand served upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Baladin Ram Kalwar v. Income-tax Officer, B-Ward, Varanasi. In that case the learned single judge had held that the intimation contemplated by sub-clause (ii) of clause (b) of section 3 did not amount to a notice of demand and, therefore, the requirement for the issue of such an intimation did not create any hiatus in the sale proceedings and did not break the proceedings so that a fresh recovery certificate be issued and fresh proceedings for recovery be commenced. In the case of Baladin Ram Kalwar the sale was held for the amount that was actually due and the facts mentioned in the judgment do not indicate that the intimation, as contemplated by sub-clause (ii) of clause (b) of section 3 of the Act, had not been given. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, sub-clause (ii) requires a positive duty to be performed by the taxing authority. It enjoins upon him the duty to give intimation of the fact of reduction of the demand in appeal to the assessee ; and in case the certificate has already been issued to the Tax Recovery Officer, also to intimate the fact to that officer. Sub-clause (iii) permits the continuation of the proceedings after the appeal is allowed, but only for the amount that actually remains due after its reduction in appeal. The right to recover any amount from a defaulting assessee corresponds to his liability to pay the dues. Recovery of a larger amount is not permitted. Sub-clause (iii) of clause (b) of section 3 of the Act permits the continuance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
