BHURAMAL Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) A few facts are necessary to appreciate the point involved in this case. The respondent No. 5 was assessed to income -tax and his liability had been fixed at Rs. 86,731.02. The petitioner owed some amount to the respondent No. 5 and the respondent No. 5 filed a special civil suit being No. 5 of 1964 against the petitioner claiming an amount of Rs. 1,15,000 from him. During the pendency of this suit, the Income -tax Officer came to know about this suit and on August 19, 1964, issued a notice to the petitioner directing him not to pay the amount due from him to the respondent No. 5 but to pay the same to the Income -tax Officer. On December 31, 1964, another notice was issued by the Income -tax Officer. On December 31, 1964, another notice was issued by the Income -tax Officer to the petitioner requiring him to appear before him on January 30, 1965. The suit, however, ended in a consent decree for an amount of Rs. 45,000 on June 28, 1965. The petitioner, who was liable under the decree to the respondent No. 5, who was the original defaulter, was deemed to be a defaulter within the meaning of section 226(3)(x) of the Income -tax -Act, 1961. Thereafter, a recovery certificate was issued by Income -tax Officer and he sent it to the Tax Recovery Officer, who was a Tahsildar in the present case. After attachment of the property of the petitioner and the sale -proclamation, etc., sale was held on August 31, 1966, which brought Rs. 46,500 as sale proceeds. The petitioner then applied for setting aside the said sale under rule 61 of schedule II of the Income -tax Act. This application was not accompanied by any deposit of the arrears for which the petitioner was held liable. By an order dated October 4, 1966, the Tax Recovery Officer (Tahsildar) rejected the application and confirmed the sale in favour of the respondent No. 4. The petitioner had alleged some irregularities in the publishing and the conduct of the sale. All these contentions were negatived by the Tax Recovery Officer and further the Tax Recovery Officer also held that the petitioner failed to comply with the mandatory provisions of rule 61 proviso (b) of the Rules framed under the Income -tax Act, 1961, and therefore, the objections of the petitioner could not be considered and had to be disallowed. Against this order, the petitioner filed an appeal on July 24, 1967, before the Sub -Divisional Officer purporting to be an appeal under rule 86(1) (b) of the Income -tax Rules. The Sub -Divisional Officer by an order dated July 24, 1967, dismissed the appeal and confirmed the order of the Tahsildar, i.e., the Tax Recovery Officer. He had also held that the petitioner failed to deposit the amount of the tax claimed from him and on account of his failure to observe the mandatory provisions of rule 61, proviso (b), the application of the petitioner for setting aside the sale could not be considered. This order of the Sub -Divisional Officer was further challenged by the petitioner before the Deputy Collector with revenue appellate powers, By his order dated September 5, 1967, the Deputy Collector upheld the preliminary objections on behalf of the respondent No. 4 that the second appeal was not maintainable as the Income -tax Rules provided for one appeal only. This order was again challenged by way of a revision application before the Commissioner. The Commissioner rejected the revision application on the ground that no revision was provided under rule 86 of the Income -tax Rules.

(2.) AFTER the deputy Collector held the appeal to him as not maintainable by his order dated September 5, 1967, the petitioner filed an appeal on September 15, 1967, direct to the Commissioner challenging the order of the Tax Recovery Officer dated October 4, 1966. This appeal has also been dismissed by the Commissioner by him order dated July 24, 1968, as being not maintainable. It is these orders of the Commissioner which are challenged in the present petition by the petitioner.

(3.) A Tax Recovery Officer under section 2(44) means :