TMI Blog2017 (8) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... 23, 1976 as late in 2016 is unable to produce the same when required at the time of hearing. The order of attachment dated February 23, 1976 is required for the purpose of understanding the scope, ambit and extent thereof. It may or may not relate to an immovable property. It may relate to the rent receivable in respect of the immovable property or anything otherwise. Without the order of attachment being actually placed for consideration any exercise in trying to understand the scope, extent and ambit of the order of attachment would be an exercise in futility. It would be in the rem of speculation. The foundational basis therefore is not available to the Income Tax Department. The bank had proceeded to put up an immovable property for sale under the provisions of Act of 2002. The bank had sold 1/9th share in an immovable property without taking actual physical possession thereof. The act of sale is under challenge in a proceeding pending before the Debts Recovery Tribunal, Kolkata. The borrower has raised various valid points which impinge upon the validity of the sale conducted by the bank. They are however to be looked at by the Debts Recovery Tribunal, in accordance with la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s- Gangadhar Vishwanath Ranade) and submits that, when the bank has travelled beyond its authority, and put up the property for sale, the same is bad in law. In support of the contention that, the bank was aware of the order of attachment, learned Advocate for the petitioners refers to a letter dated June 19, 2013 as well as another letter dated March 29, 2010. Such letters, according to her, establishes that, the State Bank of India was well aware of the order of attachment prior to putting up the property for sale. Learned Advocate appearing for the State Bank of India submits that, the Income Tax Authorities had dropped the acquisition proceedings in respect of the property. He refers to an application made under Section 230A(1) of the Income Tax Act, 1961 and submits that, the permission was granted therein. He also refers to the grant of permission and submits that, such permission states that, there are no dues on account of income tax. Therefore, on the date of grant of such permission, there cannot be any valid order of attachment. The permission was granted in 1983. The order of attachment dated February 23, 1976 could not have existed on the date of such permission. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside. The respondent no.3 is supporting the petitioners in having the sale dated March 24, 2010 set aside. He contends that, there is an unholy nexus between the bank and the respondent nos. 4 and 5. The other respondents are the brothers of the respondent no. 3. They are taking steps to oust the respondent no. 3 from the property concerned. There are diverse proceedings including criminal proceedings pending between the brothers. The sale is one of the mechanisms through which the respondent no.3 is sought to be ousted from the property. He submits that, there is a family settlement. The respondent nos. 4 and 5 are acting in breach of such family settlement and are preventing the respondent no. 3 from settling the actual claim of the Bank. He submits that, the son of the respondent no.3 has questioned the sale by the bank under Section 17 of the Act of 2002. There is an order dated May 21, 2013 directing the maintenance of status quo with regard to the property. He submits that, the sale stands vitiated by reason of breach of Rules 8 and 9 of the Security Interest Rules, 2002. He draws the attention of the Court to the fact that, the sale notice is dated February 21, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gating. As noted above, there are at least two writ petitions pending which does not enclose the order of attachment dated February 23, 1976. When the writ petition was taken up for hearing noticing such fact, a request was made to the department to produce such order of attachment. The department had filed a supplementary affidavit. However, the order of attachment dated February 23, 1976 has not seen the light of the day. The order of attachment dated February 23, 1976 is however referred to in the diverse correspondence issued on behalf of the Income Tax Authorities and as late as in 2016. It is not understood how an Income Tax Authority is in a position to write the letter on the basis of an order of attachment dated February 23, 1976 as late in 2016 is unable to produce the same when required at the time of hearing. The order of attachment dated February 23, 1976 is required for the purpose of understanding the scope, ambit and extent thereof. It may or may not relate to an immovable property. It may relate to the rent receivable in respect of the immovable property or anything otherwise. Without the order of attachment being actually placed for consideration any exercise i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21, 1992 and a proclamation of sale dated Febraury 2, 1993 issued by the Income Tax Department. Learned advocate for the petitioners refers to the certificate granted under Section 230A of the Income Tax Act, 1961 and submits that, when such permission was granted in 1987, the question of order of attachment of 1976 existing for the Income Tax Department to issue a notice of proclamation of sale and attempt to sale the same does not arise. Learned advocate for the Income Tax Department submits that, the income tax clearance was in respect of other persons. I have considered the rival contentions of the parties and the materials made available on record. The right of the Income Tax Department to issue the notice for sale and a proclamation of sale arises out of an order of attachment dated February 23, 1976. This order of attachment has not been produced before the Court for its consideration. The scope, ambit and extent of the order of attachment remains unknown. The foundational basis for the proclamation of sale and a notice thereof has not been produced before the Court for consideration. In such circumstances, the proclamation of sale and the notice are set aside. W.P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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