TMI Blog2018 (1) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... 8B. Even without doing that, it has to be held that the sale was conducted within the time stipulated by the statutory provision. It is held so. Whether in view of section 29 of the DRT Act, all the provisions of the IT Rules would become applicable to proceedings before the DRT? - Held that:- The provisions of the IT Act and the Rules are applicable. There was no necessity for attachment thereof before the sale, as contended. Though it is contended that there was no proclamation, fixation of a reserve price etc., as contemplated by the IT Rules, there is no material on record to support any of the said contentions. Therefore, the said contentions have to fail. Since, we have already found on facts that the sale conducted was within the time stipulated by the statutory provision, we do not find any grounds to interfere with the judgment appealed against or to grant any of the reliefs sought for, except to clarify that the legal position as indicated by the Apex Court in Paramsivan C.N. v. Sunrise Plaza Tr.Partner (2013 (6) TMI 135 - SUPREME COURT OF INDIA) shall apply. - WA.No. 60 of 2010 In IN WP(C). 1867/2008 - - - Dated:- 6-12-2017 - MR. K. SURENDRA MOHAN AND MS. MARY J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the end of the financial year in which the order giving rise to the demand for recovery was passed. As per Rule 68B of the Second Schedule to the Income Tax Act, 1961, which has been made applicable to proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('Debt Recovery Act' for short) by Section 29 thereof, the sale has to be conducted within a period of 3 years. In view of the above, it was contended that the sale was vitiated and liable to be set aside. 3. The writ petition was contested by the respondents. It was contended on behalf of the Bank that the provisions of Second Schedule to the IT Act would apply to the proceedings before the Debts Recovery Tribunal only to the extent permissible in terms of Section 29 of the Debts Recovery Act. Therefore, the interpretation sought to be placed on the provisions thereof by the appellant was unsustainable. 4. The learned Single Judge considered the respective contentions, found that the provisions of Rule 68B of the Second and Third Schedules to the IT Act would apply only as far as possible with necessary modifications. It was noticed as an added reason for negativing h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or respondents 2 and 3. The learned Senior Counsel points out that the period stipulated by Rule 68B of the Second and Third Schedules to the IT Act is not to be computed from the date on which the order was passed by the DRT. The limitation would commence to run only from the end of the financial year in which the order is passed. Going by the stipulations in the provision, the order became final only on 31.3.2005. The three year period would end only on 31.3.2008. Since the sale was conducted on 21.11.2007, it is contended that the sale was perfectly within the period stipulated by the statutory provision. Therefore, there are no grounds to interfere with the same, it is contended. 8. With respect to the infirmities pointed out in the procedure, it is contended that, all procedures had been complied with and that the sale conducted was proper. The learned Senior Counsel therefore seeks dismissal of the appeal. 9. Heard. Before considering the main contention that has been put forward by the counsel for the appellant, it is necessary to take note of a few other circumstances leading up to the filing of the writ petition from which this appeal arises. As already noticed above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilized. 11. The appellant's son-in-law thereafter filed W.P. (C) No. 37986 of 2007 seeking a direction to consider and dispose of an application filed under Rule 61 of the Second and Third Schedules to the IT Act without insisting for deposit of the amount sought to be recovered. However, the said writ petition was dismissed by judgment dated 23.11.2009. What appears from the above proceedings is that though the appellant and his son-in-law had been challenging the proceedings for recovery of the amount due from them, by instituting various proceedings, they have not made any payment towards the dues, despite being granted a number of opportunities to do so. We are told that even to this date, they have not made any payment towards the amount due from them. 12. The main contention put forward before us is that the sale is vitiated for the reason of not having been conducted within the time stipulated by law. For the purpose of considering the above contention, it is necessary to examine the statutory provision. Rule 68B of the Second and Third Schedules to the IT Act is extracted hereunder for convenience of reference. Time limit for sale of attached immovable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under this rule. The above provision mandates that, no sale of immovable property shall be made under this part; i) after the expiry of three years, ii) from the end of the financial year in which the order giving rise to a demand of any tax, interest, fine, penalty or other sum, for the recovery of which the immovable property has been attached, iii) has become conclusive under the provisions of Section 245-I or, as the case may be, final in terms of the provisions of Chapter XX. It is clear from the above provision that, the period of 3 years stipulated therein is to commence from the end of the financial year in which the order becomes conclusive or final. In the present case, though the O.A. was allowed by the DRT on 27.2.2004, we notice that, the order had not become final on the said date. This is for the reason that, the appellant was entitled to file an appeal against the said order under Section 20 of the DRT Act. The period stipulated for filing an appeal is 45 days from the date on which the copy of the order is received by him. Therefore, the order could become final only after expiry of the period prescribed for filing an appeal. The said period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 29 further makes it clear that any reference to the assessee under the provisions of the Income-tax Act and the Rules shall be construed as a reference to the defendant under the RDDB Act. It is noteworthy that the Income-tax Rules make provisions that do not strictly deal with recovery of debts under the Act. Such of the rules cannot possibly apply to recovery of debts under the RDDB Act. For instance Rules 86 and 87 under the Income-tax Act do not have any application to the provisions of the RDDB Act, while Rules 57 and 58 of the said Rules in the Second Schedule deal with the process of recovery of the amount due and present no difficulty in enforcing them for recoveries under the RDDB Act. Suffice it to say that the use of the words as far as possible in Section 29 of RDDB Act simply indicate that the provisions of the Income-tax Rules are applicable except such of them as do not have any role to play in the matter of recovery of debts recoverable under the RDDB Act. The argument that the use of the words as far as possible in Section 29 is meant to give discretion to the Recovery Officer to apply the said Rules or not to apply the same in specific fact situations ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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