BALKISANDAS Vs. ADDITIONAL COLLECTOR AKOLA

JUDGEMENT

(1.) FOR a sum of Rs. 4,018.96 as the income tax dues found recoverable against the partnership firm, M/s Laxminarayan Balkisandas Bhutada, of which the petitioner was the partner, proceedings to recover upon tax recovery certificate were started and in those proceedings three fields of the petitioner, being field survey Nos. 155, 156 and 157 of village Shaha were attached. Sale proclamation was issued on 2nd Feb., 1968, and eventually the sale was fixed for 13th March, 1968. Meanwhile, the petitioner applied to the Collector on 6th March, 1968, for stay of the sale and it is apparent from the order sheets that were produced before us, that a conditional order directing the petitioner to deposit half the amount was made by the Collector but the petitioner did not avail of that concession. It also appears that on the date of sale, the petitioner was present before the Tahsildar who was the TRO attaching and conducting the sale. Two of the fields, survey Nos. 155 and 156, were eventually put to sale and Rs. 3,600 and Rs. 4,500, respectively, were the price fetched at the auction. By an order of 15th May, 1968, the Tahsildar, who was the TRO, confirmed the sale of these two fields under r. 63(1) contained in the Second Schedule to the IT Act, 1961. Petitioner filed an appeal before the Sub divisional Officer purporting to be under r. 86 (1) of those rules. The said office allowed the appeal by his order of 31st May, 1969, holding that the sale was not conducted in accordance with the law as well as the rules as are contained in the Second Schedule. The auction purchaser, i.e., Gajanappa, purported to file second appeal before the Collector, Akola, under the very same rule which was also entertained and by the impugned order of 10th June, 1970, the Collector allowed that appeal. He found that the sale was made in accordance with law. That order is questioned by the present petition.

(2.) BEFORE us also legal grounds affecting the sale are urged by Mr. Kamlakar appearing for the petitioner who is the owner of these two fields. He contended that the proclamation was bad and further that the two field could not be put to sale. According to him, in fact, the proclamation was not affixed to the property and as such the sale was vitiated. He submits that a sale held contrary to the direction given by the Collector which was communicated to him either on the date of sale or thereafter would be bad under the Rules. According to him the findings recorded by the Sub divisional Officer, therefore, should be restored on merits. Apart from this, the learned counsel contends that the Collector under r. 86 was not entitled to entertain the second appeal, for that rule prescribes only one appeal from the original order. The impugned order, according to this submission, is unauthorised and without jurisdiction.

(3.) FOR the purpose of the present petition, the parties are on admitted position in that the TRO who attached and effected the sale, i.e., the Sales tax Recovery Officer, Akola, who was the Tahsildar, was the TRO, appointed as such by the State Government to exercise the powers of a TRO within the meaning of S. 2(44)(iii) of the Act. The only question, therefore, is whether the appeal filed before the Sub divisional Officer was at all competent.