Allahabad H.C : The petitioner challenges an order passed by the TRO confirming an auction sale of house property No. D-53/91-D situate at Luxa in the town of Varanasi and also an order passed by the CIT by which the latter dismissed the petitioner’s revision petition under s. 264

High Court Of Allahabad

Mohan Wahi vs. CIT & Ors.

Sections 222, 225(3), Sch. II, Rule. 60, Sch. II, Rule 61, Sch. II,

Rule 63, Sch. II, Rule 65, Sch. II, Rule 68B

M.C. Agarwal & R.K. Singh, JJ.

Civil Misc. Writ Petn. No. 640 of 1999

11th January, 2000

Counsel Appeared

Arjun Singhal & R.P. Goel, for the Petitioner : Bharat Ji Agarwal with M.K. Shukla & Shambhu Chopra, for the Respondents

JUDGMENT

M.C. AGARWAL, J. :

By this petition under Art. 226 of the Constitution of India, the petitioner challenges an order passed by the TRO confirming an auction sale of house property No. D-53/91-D situate at Luxa in the town of Varanasi and also an order passed by the CIT by which the latter dismissed the petitioner’s revision petition under s. 264 of the IT Act, 1961, against an order of confirmation of sale. Counter and rejoinder affidavits have been exchanged. We have heard Sri R.P. Goel, senior advocate assisted by Sri Arjun Singhal, advocate, for the petitioner, Sri Bharat Ji Agarwal, senior advocate, for respondents Nos. 1 and 2 and Shri M.K. Shukla, learned counsel for the auction purchaser, respondent No.

3. The petitioner was one of the co-owners of the aforesaid property. His case is that one Sri P.M. Wahi was carrying on business in a partnership in the name of United Provinces Commercial Corporation Luxa, Varanasi. From 1960, it started facing labour trouble and ultimately its business collapsed on 7th June, 1967, after which the firm became defunct and the partners left their ancestral home at Varanasi. The IT authorities went on completing the assessments of the firm and its partners and also levied penalties. This resulted in heavy demands. Thereafter recovery proceedings were initiated by the issue of recovery certificate and the aforesaid property was put to auction in 1979-80. The petitioner has stated that he filed his objection/submission through a letter dt. 24th Dec., 1979, but the TRO ignored the same and proceeded ahead with the auction. It was in 1986-87 that the petitioner and his other partners came to know of the year-wise/sectionwise assessments and penalties and demands against the firm and the partners took immediate steps and found that no notice of demand was served on the firm or the partners. The Tribunal allowed their appeals by order dt. 11th Dec., 1987, a copy of which is Annexure 1 to the writ petition. All the demands thus stood cancelled, reduced and liquidated/paid by 1996 and 1997. The ITO, Ward-2, Varanasi, himself reported to the CIT, Allahabad, through a letter dt. 26th March, 1990, that as on that date no demands were payable by the firm. A copy of the said letter was endorsed to the TRO, Varanasi, with the request to cancel the relevant recovery certificate. The TRO in spite of several requests took no action to amend or cancel the recovery certificate though it was mandatory for him to do so in terms of s. 225(3) of the IT Act. On 6th July, 1998, the assessee’s counsel was given to understand that the TRO, Varanasi, has passed some adverse orders on 25th March, 1998, and 3rd June, 1998, against the petitioner. On an inspection of the relevant record it was found that such orders were passed without any notice to the petitioner. The order dt. 25th March, 1998, is an order confirming the auction sale that was allegedly held on 11th Jan., 1980, and the other order dt. 3rd June, 1998, consisted of a certificate of sale regarding the said property. The said orders are stated to be with reference to recovery certificates Nos. 77, 78 and 79 relating to the aforesaid partnership firm and certificates Nos. 80, 81 and 82 relating to the petitioner. It is claimed that the recovery certificates Nos. 80, 81 and 82 were not shown to the petitioner when the record was inspected on 10th July, 1998. It was, however, verbally informed that the recovery certificates Nos. 80, 81 and 82 related to Sri S.M. Wahi. It is claimed that as a result of the appellate orders the demands that were mentioned in the recovery certificates got extinguished and instead the petitioner became entitled to some refunds which were adjusted against the other demands against the petitioner. It is claimed that the proclamation of sale dt. 3rd Dec., 1979, was in respect of the whole property, 50 per cent of which belonged to other persons completely fallen to the alleged defaulters and that the proclamation of sale was made without making any enquiries about the ownership of the property. It is claimed that thedemands in respect of which recovery certificates Nos. 77, 78, 79, 80, 81 and 82 had been issued had become final and conclusive on 31st March, 1975, and no sale of immovable property could be held under Sch. II to the IT Act after the expiry of three years from the end of the financial year in which the order giving rise to a demand of tax had become conclusive under the provisions of s. 245-I or in terms of the provisions of Chapter XX. It is thus claimed that the sale was barred by time. It is claimed that the aforesaid property belonged to four persons, namely, P.M. Wahi, S.M. Wahi, Ram Mohan Wahi and Krishna Mohan Wahi, as per will dt. 28th May, 1962, and that there were no liability against Ram Mohan Wahi & Krishna Mohan Wahi who had neither been assessed to tax nor were partners in the firm, United Provinces Commercial Corporation. It is claimed that Krishna Mohan Wahi had filed a suit for partition and injunction regarding his share in the property aforesaid and the said suit being Suit No. 398 of 1999 is pending in the Court of Civil Judge (Senior Division), Varanasi, and by order dt. 9th April, 1999, the said Court had restrained the defendants co-sharers in the property in question from transferring the property in question in favour of any person. Earlier another suit being Suit No. 1 of 1980 was filed by Smt. Padma Wahi, w/o the late R.M. Wahi, challenging the sale proceedings. The suit for injunction was, however, dismissed for default on 12th Jan., 1998, and a restoration application was pending. The petitioner preferred a revision petition under s. 264 before the CIT challenging the orders of confirmation of sale and a direction to the petitioner to hand over physical possession of his interest in the property to the auction purchaser. The petitioner also filed Writ Petn. No. 324 of 1998, in this Court in which an interim order was made but the same was ultimately dismissed as the petitioner was seeking alternative remedy by filing a revision petition under s. 264. The CIT ultimately rejected the petitioner’s revision petition by order dt. 21st May, 1999, a copy of which is Annexure 17 to the writ petition. It is claimed that in rejecting the revision petition, the CIT has failed to consider the legal implication of liquidation of demand.

5. In the counter affidavit filed on behalf of respondents Nos. 1 and 2 it has been stated that the assessments were completed by the AO ex parte after rendering reasonable opportunity to the assessee. It is claimed that the petitioner’s contention that he came to know of the demand in 1986/1987 is wrong because notices in Form ITCP No. 25 were issued and sent to the petitioner by registered post in August, 1975, and adjournment was sought through one Dipanker Basu through a letter dt. 28th Aug., 1975. It is also stated that the letters were issued to the two persons aforesaid and they sent their replies through letters dt. 15th Oct., 1975, and 5th Oct., 1975. Although it is stated in the counter affidavit that a photocopy of the letter and RAD is enclosed, no document has actually been enclosed with the counter affidavit. It is claimed that the recovery certificates were issued to the TRO in the year 1973. Thereafter the aforesaid property was attached and sale proclamation was issued fixing 3rd Jan., 1980, for sale which was postponed to 11th Jan., 1980, on which date the sale was actually conducted and Smt. Ram Jyoti Devi, respondent No. 3, declared as the purchaser. The auction purchaser deposited the amounts as required under the law by 25th Jan., 1980, and thus discharged her duty within the stipulated period. It is claimed that the issue of the sale letter was held up because of the civil Court’s stay order dt. 9th Jan., 1980, by which the confirmation of sale was stayed. The said stay order was granted on the application of Smt. Padma Wahi and the suit filed by her was ultimately dismissed. It is claimed that at the time of the auction of the property arrears of demand as mentioned in the recovery certificates Nos. 77, 78, 79, 80, 81 and 82 were outstanding and noobjection was filed by the petitioner before the TRO at the time of the auction proceedings or even thereafter and thevalidity of the auction was not challenged. It is claimed that no application either by the firm or by the two partners was filed under the Second Schedule to the IT Act for reconsideration of the auction proceedings or for setting aside the auction sale dt. 11th Jan., 1980, and that no occasion arose on the part of the TRO to reconsider the valid auction concluded on 11th Jan., 1980. According to the respondents, the issue of the sale certificate was only a consequential action. It is admitted in the counter affidavit that as a result of the appellate orders, the demands covered by the aforesaid certificates stood wiped out. It is also claimed that the plea of limitation in conducting the auction sale was not applicable to the sale in question which according to the respondents was held before the enactment of the provision of r. 68B of the Second Schedule. It is also claimed that what was sold in the auction was only the interest of S.M. Wahi and P.M. Wahi in the aforesaid property and, therefore, the interest of the other co-sharers, if any, was not affected by the sale. It is claimed that the CIT has decided the revision petition according to law taking into consideration all material facts. As regards the auction purchaser, she has filed a counter affidavit sworn by her husband. Her case is that the sale was validly held and confirmed and there is no case for exercising jurisdiction under Art. 226 of the Constitution of India in their favour. She claims that the petition is misconceived and the petitioner has already taken unjust advantage of the suit filed by other coshares. It is claimed that at the time of the auction the demands were outstanding and, therefore, the sale was properly held. It is claimed that the sale having been held and the auction purchaser having deposited the bid money according to law and no objection having been filed, there was no option for the TRO except to confirm the sale.

The main argument raised by Sri Goel, on behalf of the petitioner, is that the dues for the recovery of which the sale was held had ceased to exist when the petitioner’s appeals against the ex parte assessments were allowed and, therefore, the sale that was held on 11th Jan., 1980, should have been set aside by the TRO. He placed reliance on sub-s. (3) of s. 225 of the IT Act, 1961, which reads as under : “(3) Where a certificate has been drawn up and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act, the TRO shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate, or cancel it, as the case may be.” It is claimed that after the appeals were allowed the TRO should have cancelled or amended the certificate. The procedure for recovery of tax or other amount levied under the IT Act is contained in the Second Schedule and one of the modes of recovery is by attachment and sale of the defaulter’s immovable property. Rule 9 contained in the said Schedule bars a suit for setting aside a sale and provides that every question arising between the TRO and the defaulter or their representatives, relating to the execution, discharge or satisfaction of a certificate or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such certificate, shall be determined, not by suit, but by order of the TRO before whom such question arises. Then there are detailed provisions regarding attachment and sale of immovable property which are almost akin to the provision contained in O. 21 of the CPC regarding sale of immovable property in execution of a decree. Rule 60 provides for setting aside of the sale on the defaulter paying up the dues along with an amount equal to five per cent of the purchase money which is to be paid to the auction purchaser. Rule 61 provides for setting aside of sale on the ground of non-service of notice or a material irregularity in publishing or conducting the sale. Admittedly, the petitioner did not avail of the remedies provided in rr. 60 and 61 of the Second Schedule. Rule 63 provides for confirmation of sale. It says that where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the TRO, the TRO shall (if the full amount of the purchase money has been paid) make an order confirming the sale, and, thereupon, the sale shall become absolute. Rules 65 provides that where a sale has become absolute, the TRO shall grant a certificate specifying the property sold, and the name of the person who at the time of sale is declared to be the purchaser.

Learned counsel for the petitioner relied upon Sunil Kumar Singh Deo vs. TRO (1987) 64 CTR (Ori) 210 : (1987) 166 ITR 882 (Ori) : TC 52R.191. This is a brief judgment and shows that the defaulter had filed a writ petition challenging the order of the TRO directing the sale of the property under attachment. The ground of challenge was that the demand notices were not served either on the assessee or on his legal representatives. The Court held that the non-service of demand notices went to the root of the jurisdiction of the Revenue Officer initiatingproceedings for the recovery of tax. Therefore, the direction for sale was set aside. As is evident, it was a case where no sale was held when the writ petition was filed. On the other hand, in the case before us the sale was held as far back as in January, 1980, and as mentioned in para. 3 of the writ petition the petitioner knew that certain demands have been raised against him and proceedings for the auction of the aforesaid property had been initiated. It is stated in the said paragraph that the petitioner filed his objection/submission as per his letter dt. 24th Dec., 1979. What was the nature of the submission has not been mentioned and no copy of that objection has been filed and no argument was raised on the basis of the alleged objection. The fact, however, remains that the petitioner knew that the property in question was going to be auctioned and he remained a silent spectator for a very very long time. Reliance was also placed on Mannoo Lal Kedar Nath (HUF) vs. ITO (1988) 68 CTR (All) 32 : (1988) 172 ITR 612 (All) : TC 52R.772. That was also a case in which the demand had been reduced much before the date of sale that was held on 18th March, 1986, while the fact of reduction of the demand was intimated by the assessee to the Department in March, 1977. It was held that the sale for the amount that was not due was invalid. In this case too, unlike the present petitioner, the assessee had come to this Court quite early. The facts of this case beingmaterially different, it renders no support to the petitioner’s contention. Reference was also made to M.L. John vs. ITO (1982) 18 CTR (All) 276: (1983) 139 ITR 972 (All) : TC 51R.1932, in which it was held that where, notice of demand and copies of the assessment orders were not served on the assessee, the recovery proceedings were invalid. This too was a case in which no sale was held and the petitioner had approached this Court as soon as notices of attachment were issued. No rights of any auction purchaser were, therefore, involved. Then reliance was placed on Behari Lal Ramcharan Kothi vs. ITO (1973) 87 ITR 198 (All) : TC 52R.1005. In that case certain recovery certificates were issued for realisation of tax dues from the petitioner’s firm. Later the ITO informed the TRO that the dues had either been paid off or written off and the recovery certificate be, therefore, treated as cancelled and returned. It was held that nothing more was required of the TRO and he could not proceed with the recovery. As is evident in the case before us the recovery certificates were never recalled or cancelled or amended. Further, on the date of the sale, the demands were outstanding and no occasion for the recalling, cancellation or amendment of the recovery certificates had arisen. Yet another case cited on behalf of the petitioner is Ram Swarup Gupta vs. Behari Lal Baldeo Prasad (1974) 95 ITR 339 (All) : TC 52R.567. This too was a case in which the demand for which the sale had been made had stood reduced in appeal and the sale was held in ignorance of the reduction as the ITO had failed to intimate the same to the TRO. It was held that the sale was invalid. In that case also the assessee had challenged the sale by filing in this Court a writ petition promptly and, unlike the present case, the demand had been reduced in appeal before the sale. On the other hand, it was contended on behalf of the respondents that the sale was valid when it was held on 11th Jan., 1980, and the auction purchaser had complied with all the requirements and deposited the bid money and, therefore, the cancellation or reduction of the demand subsequently did not invalidate the sale.

14. Reliance is placed on M.R. Anthony Swamy vs. CIT (1981) 24 CTR (Kar) 1: (1982) 135 ITR 424 (Kar) : TC 56R.1385. In this case, pending an appeal against the assessment order, the property of the assessee was sold by recovery proceedings. Subsequently the assessment order was set aside after confirmation of sale. A learned single judge held that in such circumstances the sale cannot be set aside. It was further held that in case there is any irregularity in the sale the assessee must take recourse to r. 61 of the Second Schedule and no relief can be granted under Art. 226.

15. Reliance is also placed on Janak Raj vs. Gurdial Singh, (1967) 2 SCR 77. In that case a house belonging to the judgment debtor was sold in execution of an ex parte decree. The ex parte decree was later set aside on the application of the judgment debtor. Thereafter the judgment-debtor applied for setting aside the sale under O 21, r. 92 of the CPC. The Supreme Court held that the sale must be confirmed not withstanding reversal of the decree after sale. It was further held that the title of the purchaser related back to the date of sale and not to that of its confirmation. The Supreme Court also held that under the CPC, the Court is bound to confirm the sale when no application under r. 92 is made or when such application is made and is disallowed. Rule 63 of the Second Schedule is akin to O. 21, r. 92 of the CPC, r. 62 is akin to r. 91 of O. 21. Rule 61 is akin to O. 21, r. 90, and r. 60 is akin to O. 21, r. 89 CPC. Therefore, in our view, the ratio of Janak Raj’s case (supra), will apply with full force to sales under Sch. II to the IT Act, 1961.

16. The aforesaid principle was reaffirmed in Sardar Govindrao Mahadik vs. Devi Sahai AIR 1982 SC 989, in which the auction purchaser was the decree holder himself. The apex Court held that where the decree is reversed after the sale and the auction purchaser is the decree holder himself, then the decree holder is not entitled to protection and the sale can be set aside. The Supreme Court, however, reaffirmed that if the auction purchaser is a stranger then the equity in favour of the stranger should be protected. It was observed as under: “59. The question, however, is what happens if at an intermediate stage pursuant to the decree of the trial Court the attached property is sold at a Court auction ? How would the rights and obligations of the auction purchaser be adversely affected if the appeal is allowed and the suit is dismissed. Ordinarily where the appeal is preferred an attempt should be made to obtain stay of the execution of the decree of the trial Court. However, it is notorious that the appellate Court is loath or reluctant to grant stay of a money decree and the judgment debtor may not be in a position to deposit the decretal amount and in this situation more often the execution proceeds and before the appeal is disposed of an equity in favour of a third person as auction purchaser who purchases the property at a Court auction may come into existence. If afterwards the appeal is allowed and the suit is dismissed, would the auction purchaser be adversely affected ? The emerging situation in this case clearly demonstrates the dilemma. Ordinarily, if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the Court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside. This proceeds on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execution of the decree during the pendency of the appeal. But what happens if the auction purchaser is the decree holder himself ? In our opinion, the situation would materially alter and this decree holder- auction purchaser should not be entitled to any protection. At any rate, when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending. He is aware of the fact that the resultant situation may emerge where the appeal may be allowed and the decree, which he seeks to execute may be set aside. He cannot force the pace by executing the decree taking advantage of the economic disability of a judgment debtor in a money decree and make the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war. Therefore, where the auction-purchaser is none other than the decree holder who by pointing out that there is no bidder at the auction, for a nominal sum purchases the property, to wit, in this case for a final decree for Rs. 500, Motilal purchased the property for Rs. 300, an atrocious situation, and yet by a technicality he wants to protect himself. To such an auction-purchaser who is not a stranger and who is none other than the decree holder, the Court should not lend its assistance. The view which we are taking is not unknown and to some extent is will be borne out by the observations of this Court in Janak Raj vs. Gurdial Singh (1967) 2 SCR 77 at p. 86. This Court made a pertinent observation which may be extracted : ‘The policy of the legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified’.” In view of the law as laid down by the Supreme Court the aforesaid argument raised on behalf of the petitioner has no force and is hereby rejected.

17. The next argument raised on behalf of the petitioner is that no notices of demand in respect of the dues for which the recovery certificates were issued were served on the petitioner or other partner, namely, P.M. Wahi, and, therefore, the recovery proceedings were illegal. Reliance was placed on the judgments referred to above, which have been duly discussed. A perusal of the writ petition would show that there is no specific averment anywhere therein that the notices of demand were not served. What is stated in para. 4 of the writ petition is that it was only in 1986 and 1987 that the petitioner and other partners came to know that the year-wise/section-wise assessments and penalties and demands against the firm and partners. This statement cannot be said to mean that no demand notice was served. Further, against the confirmation of sale by the TRO the petitioner preferred a revision petition under s. 264 to the CIT which has been dismissed by the impugned order dt. 21st May, 1999, a copy of which is Annexure 17 to the writ petition. This order also does not show that the petitioner contended before the CIT that no notice of demand was served on any appropriate person. The petitioner has also notannexed to the writ petition a copy of the revision petition which could have shown whether any such contention was raised before the CIT. The petitioner sought support from a copy of the order dt. 11th Dec., 1987, passed by the Tribunal in the appeals of the firm. United Provinces Commercial Corporation, for the asst. yrs. 1967-68, 1968-69, 1969-70 and 1970-71 in which while dealing with the question of limitation in respect of the assessee’s appeal before the CIT(A) it was observed that the assessee could not be said to have been served with the demand notice particularly in the absence of any Departmental record to come to a different conclusion. This is a finding in another proceeding and no such plea having been raised before the CIT or before the TRO, the petitioner cannot contend that the recovery proceedings were illegal as no demand notices were served. We may mention that the assessee knew that the recovery proceedings were going on and the property was proposed to be sold. The petitioner wrote a letter dt. 24th Dec., 1979, to the TRO complaining of the sale on the grounds that the demands were arbitrary and ex parte and it was not his grievance in the said letter that the demand notices were not served.

If no demand notices were served, it was the obligation of the assessee to raise this point before the TRO and object to the proceedings. He did not do so and did not even file an objection after the sale was actually held. In case no notice of demand was served, the petitioner could have filed an objection under r. 61 of the Second Schedule, objecting to the same on the aforesaid grounds and if he had done so the TRO would have passed appropriate orders but the petitioner never did so and, therefore, he cannot raise such a contention with success in the writ petition that has been filed after 18 years or more. Why the petitioner took the matter so lightly or why he did not bother at all about the sale is clear from what he stated in his letter dt. 24th Dec., 1979, addressed to the TRO and which has been reproduced by the CIT in the impugned order. The last paragraph of this letter reads as under : “In any case, as you may have yourself learnt the property D-53/91, Luxa, Varanasi, does not belong to me and has been wrongly attached by your office.” Thus, the contention of the petitioner at that time was that he had no interest in the property that was attached and that was intended to be sold. That explains why the petitioner took no steps whatsoever to avoid the sale and it appears that in filing this petition somebody else is using his name and the petitioner is not really interested in the matter. Along with the petition the petitioner did not file his own affidavit. On the other hand, the affidavit of one Om Prakash Srivastava son of late Sri K.L. Srivastava, resident of B-1/1106, Vasant Kunj, New Delhi, was filed who made a bald statement that he is the Pairokar of the petitioner and did not explain how he was connected with the petitioner and how he could have knowledge of the matters stated therein. He verified para one of the petition from personal knowledge. In this paragraph, it was stated that the firm, United Provinces Commercial Corporation, was constituted by two partners, namely, P.M. Wahi, and the petitioner. Then in para 2 of the petition it is stated that the firm carried on business of purchase and sale of heavy earth moving machinery and spare parts and once having suffered losses due to labour problem, the business was stopped and the partners left Varanasi. Strangely enough these averments have not been sworn from personal knowledge but are sworn on perusal of the records. This is how the petitioner purports to establish his case by filing the affidavit of an incompetent person. Then a rejoinder affidavit was filed in the Court on 7th Oct., 1999, which is sworn by Sanjeev Kumar Saxena, son of Shri Bhagwan Chand Saxena, resident of 23/89, East Azad Nagar, Delhi-51. This person too vaguely states that he is Pairokar for the petitioner. Like the other deponent he too does not explain his connection with the petitioner and the source of his knowledge.

These facts give an impression that the petitioner was not interested in the matter and somebody else is using him to protect his interest in the property. Another argument raised on behalf of the petitioner was that recovery certificates against the petitioner and United Provinces Commercial Corporation were compounded for sale of the aforesaid property and this was illegal. A firm is not a legal person and, therefore, its dues can be recovered by the attachment and sale of the properties belonging to the partners. In this case, the two brothers were co-owners of the disputed property and, therefore, combining the two sets of certificates together did not result in any irregularity that may vitiate a sale. Reliance was placed on Precision Instruments (P) Ltd. vs. Union of India 1976 CTR (All) 248 : (1976) 104 ITR 723 (All) : TC 52R.757 in which separate recovery certificates were issued against a limited company and its managing director and the TRO issued a sale proclamation which included the amounts due both by the company and its managing director. This Court held that this was illegal. In this case the petitioner was responsible for the tax assessed on him as an individual as well as for the tax assessed on the firm of which he was a partner. Therefore, the demands contained in the recovery certificates issued against the firm as well as the petitioner could be recovered from the petitioner and therefore, issuing a sale proclamation for the total amount was in our view neither illegal nor irregular in so far as the petitioner is concerned. This contention, therefore, is negatived. Lastly, reliance was placed on r. 68B. This rule was inserted by the Finance Act, 1992, w.e.f. 1st June, 1992, and the relevant portion reads as under : “68B—(1) No sale of immovable property shall be made under this part after the expiry 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, has become conclusive under the provisions of s. 245-I or, as the case may be final in terms of the provisions of Chapter XX.” This rule, therefore, which did not exist at the time of relevant sale, could not affect the sale that was held in the year 1980. No other point was urged before us and in view of the above discussions, this writ petition is dismissed with costs to the respondents which we assess at Rs. 2,500 (two thousand five hundred) for respondents Nos. 1 and 2 and Rs. 2,500 (two thousand five hundred) for respondent No. 3. The interim order dt. 22nd June, 1999, is vacated.

[Citation : 246 ITR 144]

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