TMI Blog1986 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... nd partners as per various assessments by the Income-tax authorities at Amritsar from time to time. Similarly demands of tax remained outstanding against M/s. Indo Kashmir Carpets and Handicrafts against various demands of the Income-tax authorities at Amritsar. In both the cases the demands are against firm as well as its partners. M/s. Krishna Kapoor and Co. has immovable properties comprising land and building situated at Khavasji ka Bag, Amer Road, Jaipur. The Inspecting Assistant Commissioner (Assessment), Zone-II, Amritsar, as already stated, computed the tax outstanding against M/s. Krishna Kapoor and Co. at Rs. 8,56,377 and also found that Rs. 10,17,915 was outstanding against M/s. Indo Kashmir Carpets and Handicrafts. The Inspecting Assistant Commissioner issued recovery certificates under section 222 of the Income-tax Act, 1961 (Act No. XLIII of 1961) (for short " the Act "), to the Tax Recovery Officer, Income-tax Zone-II, for due execution of the certificates. The Tax Recovery Officer Zone-II, Amritsar, sent the recovery certificate to the Tax Recovery Officer, Zone-I, Jaipur, through the Commissioner, Income-tax, Jaipur. The Tax Recovery Officer, Jaipur, initiated proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, the petitioner made stay application in the appeal which he filed on March 29, 1986, in Form No. 29A under rule 86(1)(c) of the principal rules before the Tax Recovery Commissioner. The petitioner was informed that the Tax Recovery Commissioner, Jaipur, has no jurisdiction to hear the appeal and the appeal has already been despatched to Amritsar on April 21, 1986. The sale in favour of M/s. Raja Properties for Rs. 37,81,000 on January 21, 1986, has been confirmed by the Tax Recovery Officer, Jaipur, under his order dated March 14, 1986. He also issued a sale certificate in favour of the purchaser and directed the Sub Registrar, Collectorate, Jaipur, to make entry of the property in his Registration Record in favour of the purchaser with regard to the property in dispute. The petitioner has challenged the issuance of the certificate of recovery, notice of demand, entire auction proceedings including attachment orders, proclamation of sale, auction and acceptance of the highest bid on January 21, 1986. According to the petitioner, all the proceedings are illegal, ultra vires and invalid. He has also challenged the order dated March 14, 1986, of the Tax Recovery Officer, Jaipur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Co. was reduced to about Rs. 4,00,000 odd and so far as M/s. Indo Kashmir Carpets and Handicrafts is concerned, it had been reduced to Rs. 7,65,744. It may be stated that there appears to be some substance in the submission of Mr. Ranka that the demands had been reduced and this position is not contested by Mr. Surolia, learned counsel for respondents No. 1 to 6. But the question is what is the effect of the reduction, if any, in the demands of tax in appeal. There is no dispute that the properties in dispute situated at Jaipur are the exclusive properties of M/s. Krishna Kapoor Co. In terms of section 223 of the Income-tax Act, the Tax Recovery Officer, Range-II, Amritsar, forwarded recovery certificates in respect of the aforesaid two demands in relation to the defaulter, M/r. Krishna Kapoor Co. and its partners and Indo Kashmir Carpets and Handicrafts and its partners to the Tax Recovery Officer, Jaipur. So far as the outstanding against the default of M/s. Indo Kashmir Carpets and Handicrafts to the extent of Rs. 10,17,915 is concerned, the case of the non-petitioners Is that M/s. Krishna Kapoor and Co. owed amount to that extent to M/s. Indo Kashmir Carpets and Hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any notice under sub-section (3) of section 226 of the Income-tax Act as alleged was served on the petitioner. It is further contended that no notice in Form ITCP No.1 was served on the petitioner. According to learned counsel, a firm is a person separate from its partners and if any amount is due against the firm, it cannot be recovered from the partners. He further contends that under rule 2 of the principal rules, notice in Form ITCP No. 1 has to be issued and served upon the defaulter requiring him to pay the amount specified in the certificate. A defaulter, according to learned counsel, means, in the case of assessment against a partner, the partner and in the case of a firm, the firm. Under section 48 of the Rules, only immovable properties of the defaulter can be attached and under rule 49, a copy of the attachment order has to be served on the defaulter. This was not done. He has referred to annexures R-43 and 44 available at pages 230 and 231, respectively. In support of his submission that rule 49 of the principal rules was not complied with inasmuch as the copy of the attachment order was not served on the defaulter as aforesaid, he also referred to some Forms ITCP No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 984] 148 ITR 599 (MP), Brij Ratanlal Bhoop Kishore v. Addl. CIT [1983] 139 ITR 906 (All). Mr., Ranka, learned counsel for the petitioner, has also contended that the court has to make a distinction in cases of illegalities and irregularities and the present is a case where the various illegalities as aforesaid have been committed. In this connection, Mr. Ranka, learned counsel for the petitioner, has referred to Chhotu Sood v. TRO [1983] 141 ITR 54 (P H), Tara Chand v. ITO [1971] 79 ITR 743 (P H) and Shiv Narain Dhabhai v. CWT [1980] 121 ITR 224 (Raj). Mr. Surolia, learned counsel for the Revenue, as well as Mr. Sharma, learned counsel for the non-petitioner No. 3, have contended that all the questions which have been raised by Mr. Ranka, learned counsel for the petitioner, are such which could have been and have been taken in the appeals filed by the petitioner. They also contend that the question as to whether there was proper service of notice in Form ITCP or other notice is purely a question of fact. It is also a question of fact as to whether service of notice by affixture could in the facts and circumstances of the case have been effected and was in fact effected or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to article 226 of the Constitution. But then the court must have good and sufficient reason to bypass the alternative remedy provided by the statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. On the basis of the above authorities, it can be said that if the statute provides remedies under it, unless the vires of the statute are in question or the order is against the principles of natural justice, the court should not generally invoke its extraordinary jurisdiction under article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate on any ground shall be entertained by the Tax Recovery Officer. Under section 224 (2), notwithstanding the issue of certificate to a Tax Recovery Officer, the Income-tax Officer shall have power to withdraw or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the Tax Recovery Officer. Under section 225(1), notwithstanding that a certificate has been issued to the Tax Recovery Officer for the recovery of any tax, the Income-tax Officer may grant time for the payment of the tax, and thereupon the Tax Recovery Officer shall stay the proceedings until the expiry of the time so granted. Under sub-section (3) of section 225, where the order giving rise to a demand of tax for which a certificate for recovery has been issued has been modified in appeal or other proceedings under the Act and as a consequence thereof the demand is reduced but the order is the subject-matter of further proceeding under the Act, the Income-tax Officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeal or other proceeding remains pending. Under sub-section (4) of section 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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