9911796707
TMI Blog2022 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ty thereafter and holds a valid patta, chitta and adangal issued by the revenue authorities in his favour. 2. The petitioner in WP.No.12683 of 2019 claims to be a research foundation that had purchased the land in Re-Survey No.316/3, Poombarai Village, Kodaikanal Taluk, Dindigul District (property in question) from one Mr.Mani under a registered sale deed dated 15.06.2009 and states that it has been in absolute possession and enjoyment of the same thereafter. This petitioner also holds a patta, chitta and adangal issued by the revenue authorities in its favour. 3. The above constitute admitted facts and no dispute is raised by the respondents in this regard. Baring the differences in facts as noticed above, relating to survey numbers and dates of transactions, other details remain identical qua the resolution of issues that arise. 4. Heard Mr.Pramod Kumar Chopda, learned counsel for Mr.Saravanan, learned counsel on record for the petitioner, Mrs.Hema Muralikrishnan, learned Senior Standing Counsel for R1 and Mrs.C.Sanghamithirai, learned Special Government Pleader for R2. 5. The petitioners, having purchased the property in 2008 and 2009 are, admittedly, in undisturbed possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n.81 (Madras)]; (iii) Sancheti Leasing Company Ltd. Vs. Income Tax Officer, [(2000) 246 ITR 814 (Madras)]; (iv) Kareanbhai Gandabhai Patel Vs. Tax Recovery Officer, [(2014) 43 taxmann.415]; (v) Ms.Ruchi Mehta Vs. Union of India, [(2008) 170 Taxman 280 (Bombay)]. 12. For its part, the respondent relies upon the following judgements: (i) Palani Gounder Vs. Income Tax Revenue Department [(1998) 229 ITR 59]; (ii) Abdul Jamil Vs. Secretary, Income Tax Department [(1998) 101 Taxman 332 (Madras)]; (iii) Karnail Singh Vs. Union of India, [(2011) 22 Taxmann.com 323 (P&H)]; (iv) D.S.Senthilvel Vs. Tax Recovery Officer, Madurai, [(2018) 92 taxmann.com 354 (Madras)]. 11. Heard the detailed submissions of learned counsels and studied the papers as well as the ratio of cases cited. 12. The facts in both writ petitions are not in dispute and the issue that arises for resolution is as to the validity or otherwise of the attachment made in regard to the properties in question. Admittedly, the attachments have been made after the date of purchase of the properties in question, the petitioner are unrelated to the defaulting assessee and there is no allegation whatsoever in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted and an order of assessment, accompanied by a valid demand, has been served upon an assessee, that normally provides for a period of 30 days for settlement of the demand or a lesser period where the assessing officer in his discretion believes that such lesser period would be more appropriate in the circumstances of that case, but such demand still remains outstanding, then resort may be taken to the procedure set out in the Second Schedule to the Act. 18. The trigger for the proceedings under the Second Seclude is the drawing up of a certificate under Section 222 of the Act by a Tax Recovery Officer (TRO). It is relevant at this juncture to take note of the fact that assessment proceedings are initiated and finalized under the powers granted to an assessing officer defined in terms of Section 2(25) whereas recovery in terms of the Second Schedule is by a TRO, as defined in Section 2(44) of the Act. There is thus a clear and categoric distinction between assessment and recovery under the Act. 19. The definitions of, nomenclature used, titles, roles and powers of the two officers are separate and distinct. An Income Tax Officer (ITO) is defined under Section 2(25) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has been drawn up on 13.08.2002 in the required form, being ITCP-1, certifying that a sum of Rs.74,09,124/- has become due from the assessee. With the issuance of Rule 2 notice, the procedure for recovery under the Second Schedule stands kick-started. Rule 3 of the Second Schedule provides for the execution of the certificate and provides for a period of fifteen days to be given to the defaulting assessee to settle the outstanding. 23. Rule 4 talks about modes of recovery that are available to a TRO to proceed to realise the amount in question by (a) attachment and sale of the movable property (ii) attachment and sale of defaulter's immovable property (c) by arrest and detention (d) by appointing a receiver for the management of his properties. In the present case, an attachment notice has been sent on 10.07.2006. The properties in question, that have been attached, are specified and described in the notice of attachment, as follows: Specification of Property All the Rooms an Resorts at Summer Creek, Poomparai Village, Kodaikanal belonging to the defaulter i.e. M/s.Club India Resorts & Metro Hotels Ltd. 24. A combined reading of the Rule 2 notice and the attachment noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to alienate its properties stood frozen from the date of issuance of such notice and even for this reason, the transfers to the petitioners are void. This argument fails in light of the time frame set in terms of Rule 68B of the Second Schedule, which, envisaging a situation such as the present, stipulates a time limit for sale of the attached property. Rule 68B reads as follows: Time limit for sale of attached immovable property. 68B. (1) No sale of immovable property shall be made under this Part after the expiry of seven years from the end of the financial year in which the order giving rise to a demand of any tax, interest, fine, penalty or any other sum, for the recovery of which the immovable property has been attached, 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: Provided that the Board may, for reasons to be recorded In writing extend the aforesaid period for a further period not exceeding three years: Provided further that where the immovable property is require to be re-sold due to the amount of highest bid being less than the reserve price or under the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
