RAMBILAS GULABDAS (HUF) Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) The petitioner-HUF assails the notice for auction dated 18.11.2004 on the ground that it is barred by limitation because of Rule 68-B of Second Schedule of Income Tax Act, 1961. This Court, has on 23rd August, 2005, admitted petition for final hearing and issued Rule on interim relief which was made returnable in four weeks. On 2nd February, 2006, after hearing the parties, this Court granted interim relief thereby restraining respondents from proceeding to sell the attached agricultural land by auction in furtherance of impugned notice dated 18.11.2004.

(2.) Shri Bhattad, learned Counsel for petitioner, at the outset, submits that when petition was drafted, considering the period of limitation of four years appearing in Rule 68-B(1), the challenges have been raised accordingly. He submits that said period prior to 01.03.1996 was three years and the amendment making it four years was by Central Board of Direct Taxes. As CBDT could not have exercised such power to amend legislative provisions, Andhra Pradesh High Court in judgment in the case of S. V. Gopala Rao and Others .v. Commissioner of Income Tax and Others, (2004) 270 ITR 433 quashed that amendment. In view of this, from August 09, 2004 i.e. date of Andhra Pradesh High Court judgment, stipulation of four years as limitation ceased and period of three years only remained relevant for computing limitation. He further submits that respondents are relying upon an earlier instance in case of similar firm, the HUF therein was a co-partner with present petitioner. There the contention of said R.B. Sriram Durgaprasad (HUF) was period of limitation prescribed in Rule 68-B(1) needed to be calculated from the date of judgment in reference proceedings by High Court. Contention, therefore, was auction then scheduled was beyond stipulated period. High Court accepted that contention of R.B. Sriram Durgaprasad. Hon'ble Apex Court, however, has overruled High Court's judgment and held that it is the date on which SLP was dismissed that the assessment attained finality and hence period needed to be computed from date of dismissal of SLP. Advocate Bhattad explained that in present matter that issue need not be gone into because the SLP was dismissed by Hon'ble Apex Court on 16.01.2001. Hence, the period under Rule 68-B(1) commences from 01.04.2001 and the auction notice impugned is, therefore, beyond limitation of three years.

(3.) Shri Parchure, learned Counsel for respondents points out that in judgment in the case of co-partner namely R.B. Sriram Durgaprasad, Hon'ble Apex Court itself has on 04th September, 2015 applied limitation of four years. Hence, even if period of limitation is reckoned from 01.04.2001, 18.11.2004 falls within four years and, therefore, the petition is liable to be dismissed. Learned Counsel for revenue also adds that when date of dismissal of SLP is decisive, here the SLP against judgment of Andhra Pradesh High Court dated 09th August, 2004 has been dismissed on 13th July, 2017. Hence till then period of limitation must be held to be four years.