Madras High Court
V. Rajendran vs Tax Recovery Officer on 12 November, 1998
Equivalent citations: (2000)162CTR(MAD)472
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
ORDER R. Jayasimha Babu, J.
Petitioner's grievance is with regard to the proclamation of sale issued ' in respect of the properties which he asserts belong to him, having been acquired from his grandfather and his mother. The sale was for the purposes of recovery of the arrears of tax due from his father. The revenue had attached those properties on 27-10-1974, and had also issued a notice under rule 2 of Schedule II. The proclamation of sale, however, was issued only in the month of March, 1996. The petitioner was not heard before that proclamation was issued and no notice had been given to him.
2. This court after issuing notice to the respondents in this petition did not prevent the TRO from proceeding with the sale. The only order that was made was that the confirmation of sale would be stayed till the disposal of the main petition. It is now submitted by the counsel for the revenue that the sale has not been held. It is, therefore, clear that any fresh sale can no longer be possibly held pursuant to a fresh proclamation as no such proclamation can be issued now.
3. The impugned proclamation was issued in March 1996, in view of the deadline fixed viz., on 31-3-1996, for issue of the proclamation. The deadline was later extended to 31-3-1997.
4. The revenue after having issued the proclamation and not having proceeded with the sale, despite no impediment having been placed, no fresh proclamation can now be issued in view of rule 68B sub-clause 3 or Sch. II to the Income Tax Act.
Rule 68B(3) reads thus : Where any immovable property has been attached under this part before the first day of June, 1992, and 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 also become conclusive or final before the said date, that date shall be deemed to be the date on which the said order has become conclusive or as the case may be final. Rule 68B(1) prescribes a period of three 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, as the period within which the sale shall be effected. Section 68B(4) provides that where the sale of an immovable property is not made in accordance with the provision of sub-rule (1), the attachment order in relation to the said property shall be deemed to have been vacated on the expiry of the time of limitation specified under this rule.
5. Though the proclamation of sale was issued prior to 31-3-1996, the sale not having been held pursuant to the proclamation, despite the absence of any order of the court, which prevented the sale being held, no fresh proclamation can now be issued, as none of the circumstances visualized in the proviso to rule 68B are attracted so as to extend the period.
6. The relief to be granted to the petitioner has now to be moulded in the light of the circumstances as they are now prevailing. It is not necessary to set aside the impugned proclamation of sale. It is sufficient to give a declaration that the sale not having been held pursuant to the proclamation no further proclamation of sale shall be issued in respect of the properties which had been attached prior to 1992. It is made clear that the contention of the petitioner that the deceased assessee was not the owner of the property at all is available to the petitioner and that claim is not to be regarded as having been negatived by this order. No costs. W.M.P. 5504 of 1996 is dismissed.