PADAM KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE short question that falls for consideration in this writ filed under Articles 226 and 227 of the Constitution of India is, whether the impugned action of the respondent-income-tax authorities (Tax Recovery Officer) in auctioning the house in question is in confer- mity with the requirement of Rule 11 of the Second Schedule framed under Section 222/276 of the Income-tax Act, 1961. Since the respondent, i.e., the Income-tax Department, despite notice to them did not choose to file any return/counter affidavit placing any material on record, though the matter is pending in this court for the last seven years and hence, 1 have no option but to proceed to decide the petition only on the basis of what is pleaded and filed in the petition by the petitioner.

(2.) IN realisation of certain income-tax arrears from respondent No. 4-- Gulab Chand (since dead)-and now deleted from the cause title, two houses bearing Nos. 118, Satigate and house No. 37, Musaddipura, both situated in Ujjain were put to auction by the Tax Recovery Officer by inviting public sale notice dated February 26, 1993 (annexure A). It is this action of the Tax Recovery Officer which was objected to by the petitioner by filing an objection dated March 18, 1993 (annexure B). IN the objection, the petitioner claimed himself to be the owner of the houses in question and prayed that the houses in question cannot be attached treating them to be that of respondent No. 4. Since no order on this objection was passed or at least not communicated to the petitioner and hence this petition was filed.

(3.) THE controversy involved in this petition is governed by Rule 11 of the Second Schedule framed under Section 222 and Section 276 of the Income-tax Act. This Schedule provides for the procedure for recovery of tax. Rule 4 provides for modes of recovery of the tax amount. Rule 4(b) provides for attachment and sale of the defaulter's immovable property. Rule 11 then provides as to how an investigation will be made of a title to the property in case any person raises an objection that the property proposed to be auctioned is not liable to be auctioned. Rule 11 reads as under :