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State Bank of Patiala Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 674 of 1974
Judge
Reported in[1976]103ITR256(P& H)
ActsIncome Tax Act, 1961 - Schedule - Rules 2 and 51
AppellantState Bank of Patiala
RespondentUnion of India (Uoi) and ors.
Appellant Advocate J.S. Arrora and; Narinder Singh, Advs.
Respondent Advocate D.N. Awasthy and; S.S. Mahajan, Advs. for respondent Nos. 2, 3 and 9 and;
Excerpt:
..... appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well..........firm and from respondent 5 himself were due for the assessment years 1965-66 to 1969-70. the tax recovery officer (respondent 2) sent a letter dated july 21, 1973, to the petitioner's branch at kapurthala, calling upon it to i produce before him the original title deeds of the property mortgaged with the bank and to inform him about the balance of the loan due from respondent 4 as on june 20, 1973. a reply to that letter was sent by the petitioner-bank's manager on july 24, 1973, a sum of rs. 3,37,748'35 was due from respondent 4 to the petitioner. on july 30, 1973, the tax recovery officer attached the property of respondent 5, which had been equitably mortgaged with the petitioner-bank and on that date a sum of rs. 3,18,666.52 was due from respondent 4 to the petitioner-bank. 3. on.....
Judgment:

1. The petitioner (State Bank of Patiala) agreed to provide financing facilities to Navin Wire Products (Private) Ltd., Sultanpur Road, Kapur, thala (respondent No. 4), on December 20, 1972, as under. :

(i) Cash credit facilities in the sum of Rs. 2,50,000.

(ii) Demand drafts purchase facility (under which the petitioner would purchase bills drawn by respondent 4 on its customers) up to Rs. 1,50,000. and

(iii) Overdraft facility to the extent of Rs. 1,00,000, and made various advances to respondent 4 on the basis thereof.

2. In order to secure the advances to be taken by respondent 4, Narinder Kumar Anand (respondent 5) equitably mortgaged his land by deposit of title deeds. He was also a partner in the firm, ' Messrs. H. L. Anand and Sons, Kapurthala', respondent 6. Income-tax arrears from that firm and from respondent 5 himself were due for the assessment years 1965-66 to 1969-70. The Tax Recovery Officer (respondent 2) sent a letter dated July 21, 1973, to the petitioner's branch at Kapurthala, calling upon it to i produce before him the original title deeds of the property mortgaged with the bank and to inform him about the balance of the loan due from respondent 4 as on June 20, 1973. A reply to that letter was sent by the petitioner-bank's manager on July 24, 1973, a sum of Rs. 3,37,748'35 was due from respondent 4 to the petitioner. On July 30, 1973, the Tax Recovery Officer attached the property of respondent 5, which had been equitably mortgaged with the petitioner-bank and on that date a sum of Rs. 3,18,666.52 was due from respondent 4 to the petitioner-bank.

3. On September 29, 1973, the petitioner-bank filed objections to the attachment under Rule 11 of the Second Schedule (Procedure for Recovery of Tax) framed under Section 222 of the Income-tax Act, 1961, to the effect that the land had been mortgaged with the petitioner-bank and the same could not be attached or sold by the Tax Recovery Officer in order to realise the arrears of tax from respondent 5.

4. In the objection petition, it was stated that the petitioner-bank had come to know about the attachment on September 12, 1973, and, therefore, the objections had been filed without any avoidable loss of time. The Tax Recovery Officer passed an order on November I, 1973, rejecting the objections of the petitioner. Against that order, the present petition has been filed.

5. The grievance of the petitioner is that the Tax Recovery Officer did not inform it about the date on which notice under Rule 2 of the Second Schedule was served on the defaulter, ' Messrs. H. L. Anand and Sons', or its partners and, therefore, the bank could not say whether the service of the notice was validly made in accordance with law and whether the attachment effected on July 30, 1973, could take effect from the date of the service of the notice. It is thus pleaded that principles of natural justice have been violated inasmuch as the petitioner has not been enabled by respondent 2, by supplying necessary information, to raise objections to the attachment of respondent 5's property mortgaged with the petitioner-bank for safeguarding its own interests as the mortgagee. It may be pointed out that once a notice is issued to the defaulter under Rule 2 ibid and he fails to make the payment, the Tax Recovery Officer has jurisdiction to attach the property of the defaulter and that attachment takes effect fromthe date on which the notice under Rule 2 ibid was served. It has been stated in the impugned order that the notice had been served on the defaulter on May 8, 1971. For this reason, even if the actual attachment was made in July, 1973, the attachment is deemed to have been effected on May 8, 1971, in accordance with the provisions of Rule 51. Under Rule 11, the petitioner had to show if it had any interest on that date in the property attached. Admittedly, the petitioner-bank had no interest in the attached property on that date because the said property was mortgaged with it on December 20, 1972.

6. As regards the observance of rules of natural justice, suffice it to say that the objections have to be raised by the objector under Rule 11 showing his interest in the attached property on the date of attachment and he cannot call upon the Tax Recovery Officer to prove to his satisfaction that the service of the notice alleged to have been made by him on the defaulter under Rule 2 ibid was valid and legal especially when the defaulter himself raised no objection thereto. The objector, being a third party, cannot assail the regularity or the validity of the notice served or alleged to have been served on the defaulter under Rule 2, nor is the Tax Recovery Officer under any obligation to supply any information with regard to the validity of his proceedings against the defaulter to the objector. In the Impugned order it was stated by the Tax Recovery Officer that the notice under Rule 2 was served on the defaulter on May 8, 1971, and if the petitioner intended to challenge the regularity or validity of that notice, he should have filed a suit in a civil court, as is provided in Rule 11(6) of the Rules. This matter is not a fit one for investigation in a writ petition.

7. Since on the date of attachment, that is. May 8, 1971, the petitioner had admittedly no interest in the property attached, this petition has no merit and is dismissed with costs. Counsel's fee Rs. 300.


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