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Jatia Estates Private Ltd. Vs. Tax Recovery Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 172 of 1971
Judge
Reported in78CWN200,[1974]95ITR343(Cal)
ActsIncome Tax Act, 1961 - Schedule - Rule 53
AppellantJatia Estates Private Ltd.
RespondentTax Recovery Officer and ors.
Appellant AdvocateR.N. Bajoria, Adv.
Respondent AdvocateSuhas Sen and ;Gautam Chakrabory, Advs.
Cases ReferredRang Lal Singh v. Ravaneshwar Prasad Singh
Excerpt:
- .....at 1 p.m. on the said date of 22-8-70 at p-7, chowringhee square, calcutta, room 74.' 3. the sale proclamation was also published in amrita bazar patrika on the 9th of august, 1970. in that advertisement the date of sale was stated as august 14, 1970. 4. on august 14, 1970, the tax recovery officer sold the right, title and interest of the appellant-company in the said premises no. 21, rup chand roy street, calcutta, to the respondent no. 4 at rs. 18,000 which was the highest bid. on august 22, 1970, the appellant-company made an application to the tax recovery officer under rule 87 of schedule ii to the income-tax act, 1961, to review the said sale on the ground that due to some mistakes the house property was sold by public auction on the 14th day of august, 1970, instead of 22nd.....
Judgment:

Amiya Kumar Mookerji, J.

1. This appeal is by the assessee-company and it is directed against the judgment and order of B.C. Mitra J. dated June 7, 1971, discharging a rule nisi obtained by the appellant upon the view that, as the appellant failed to adopt and pursue the alternative remedy which was available to it, a writ-court ought not to grant it any relief under Article 226 of the Constitution.

2. The appellant-company is the owner of premises No. 21, Rup Chand Roy Street, Calcutta. The company made default in payment of income-tax in respect of three assessment years 1964-65, 1965-66 and 1966-67. Four certificates under Section 222 of the Income-tax Act, 1961, were forwarded by the Income-tax Officer to the Tax Recovery Officer. In execution of the said certificates, the Tax Recovery Officer attached the said premises No. 21, Rup Chand Roy Street, Calcutta. According to the appellant, it had paid in three instalments a total sum of Rs. 30,000 towards the claim under the said certificates. Thereafter, on July 20, 1970, a proclamation of sale was drawn up. It was stated as follows :

'AND Whereas on the 14th day of August, 1970 (the date fixed for the sale) there will be due thereunder a sum of Rs. 98,048 including costs and interest : Notice is hereby given that even in the absence of any order of postponement the said property shall be sold by 14th August, 1970, by public auction at 1 p.m. on the said date of 22-8-70 at P-7, Chowringhee Square, Calcutta, Room 74.'

3. The sale proclamation was also published in Amrita Bazar Patrika on the 9th of August, 1970. In that advertisement the date of sale was stated as August 14, 1970.

4. On August 14, 1970, the Tax Recovery Officer sold the right, title and interest of the appellant-company in the said premises No. 21, Rup Chand Roy Street, Calcutta, to the respondent No. 4 at Rs. 18,000 which was the highest bid. On August 22, 1970, the appellant-company made an application to the Tax Recovery Officer under Rule 87 of Schedule II to the Income-tax Act, 1961, to review the said sale on the ground that due to some mistakes the house property was sold by public auction on the 14th day of August, 1970, instead of 22nd day of August, 1970, as per proclamation of sale and the said mistake was apparent from the records. The said application was rejected by the Tax Recovery Officer by his order dated August 22, 1970, upon the view that the review petition under Rule 87 was not maintainable in view of the provisions of Rules 60and 61 for setting aside the sale on deposit and on ground of material irregularity. The appellant being aggrieved by the sale and also by the rejection of its review petition by the Tax Recovery Officer, moved this court in an application under Article 226 of the Constitution and obtained a rule nisi on the I4th of September, 1970. The said rule being matter No. 526 of 1970 came up for final hearing before B.C. Mitra J. and the learned judge by his order dated 7th June, 1971, discharged the said rule.

5. The learned judge is of opinion that the appellant could have preferred an appeal under Rule 86 which provides an appeal from any original order passed by the Tax Recovery Officer under Schedule II of the Act. Setting out two different dates in the proclamation of sale was not such a material irregularity in the instant case, having regard to the advertisement published in the newspaper, as to make it a material irregularity as contemplated by Rule 61 of the Rules. The certificate-debtor company being aggrieved by the said order of the learned trial judge preferred this present appeal.

6. To appreciate the contentions of the parties, it would be convenient to advert to the relevant provisions of the Rules.

7. Rule 53 reads as follows :

' A proclamation of sale of immovable property shall be drawn up after notice to the defaulter, and shall state the time and place of sale, and shall specify, as fairly and accurately as possible,--

(a) the property to be sold ;

(b) the revenue, if any, assessed upon the property or any part thereof ;

(c) the amount for the recovery of which the sale is ordered ; and

(d) any other thing which the Tax Recovery Officer considers it material for a purchaser to know, in order to judge the nature and value of the property.'

8. Mode of making proclamation is provided in Rule 54, which reads as follows:

' (1) Every proclamation for the sale of immovable property shall be made at some place on or near such property by beat of drum or other customary mode, and a copy of the proclamation shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the office of the Tax Recovery Officer.

(2) Where the Tax Recovery Officer so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both ; and the cost of such publication shall be deemed to be costs of the sale.'

9. Under Rule 91, the Central Board of Revenue may prescribe the form to be used for any order, notice, warrant or certificate to be issued under the 2nd Schedule.

10. Provisions for filing applications for setting aside a sale within 30 days from the date of sale are prpvided in Rules 60 and 61. It would be required to deposit the amount specified in the proclamation for sale together with interest and also payment to the purchaser as penalty, a sum equal to 5% of the purchase money and on ground of non-service of notice or material irregularity in publishing or conducting the sale.

11. The Tax Recovery Officer found in his order dated August 22, 1970, that there was a clerical error arising by way of insertion of an additional date which was detected in the proclamation of sale made on 3rd of July, 1970.

12. It appears to us that the only point for consideration in this appeal is whether the sale held on 14th August, 1970, was a nullity or a material irregularity.

13. If it is a material irregularity, in that case, the alternative remedy provided in the Rules would be available to the appellant and in that case, its application under Article 226 of the Constitution could not be maintainable. But if it is found that the sale was a nullity and not a sale under the Second Schedule to the Income-tax Act, 1961, in that case, it is well-settled that an alternative remedy would not be a bar to get relief under Article 226 of the Constitution. This position of law is not disputed by learned counsel for the revenue and the auction-purchaser.

14. Mr. Bajoria, appearing on behalf of the appellant, -contended that the learned judge erred in discharging the rule on the ground that it had an alternative remedy provided in the Rules. In the instant case, there was no original order passed by the Tax Recovery Officer ; as such, there could not be an appeal under Rule 86. Mr. Bajoria submitted that the purported sale held on August 14, 1970, was without jurisdiction, illegal and a nullity and was liable to be set aside. It is further contended that the learned judge should have held that the publication in the local newspaper of the date of sale could not cure the illegality of the sale proclamation drawn up under Rule 53 of Schedule II to the Act.

15. In support of his contentions, Mr. Bajoria referred to two decisions of this court in Basharutulla v. Uma Churn Dutt, [1889] I.L.R. 16 Cal. 794 and Tikendrajit Ghosh v. Mritunjoy Mondal, [1940] 44 C.W.N. 1103; A.I.R. 1940 Cal. 554.

16. The learned trial judge observed in his judgment that he did not find any reasons why the appellant should not have preferred an appeal under Rule 86. In the present case, we do not find, however, any order passed by the Tax Recovery Officer on 14th August, 1970.

17. Rule 86(1) provides an appeal from, any original order passed by the Tax Recovery Officer under the. Schedule, not being an order which is conclusive.

18. Rule 86(1), in our opinion, contemplates appeal against the order setting aside the sale or order releasing the property from attachment or sale. Such orders are original orders which are to be passed by the Tax Recovery Officer. Exceptions have been made with respect to conclusive orders which are to be found in Rule 10(2) of the Schedule. Therefore, with great respect, we are unable to share the view of the learned judge that the appellant could have pursued the alternative remedy by filing an appeal under Rule 86(1) of Schedule 2 to the Act.

19. We, further, are of opinion that the appellants' review petition under Rule 87(1) was also incompetent inasmuch as there was no order passed by the Tax Recovery Officer on the 14th August, 1970, against which the appellant could file an application for review.

20. It is very difficult to draw any distinction between illegality and irregularity. In the instant case, two dates were mentioned in the sale proclamation. It is true that in the first part of the sale proclamation it is stated that 1 4th day of August, 1970 (the date fixed for the sale), but in the notice portion it is stated that the property shall be sold by 14th August, 1970, by public auction at 1 p.m. on the said date of August 22, 1970. By 14th August, 1970, means that not later than the said date 14th August, 1970. The last portion of the notice becomes meaningless wherein it is referred to the said date of 22nd August, 1270, without mentioning the date in the first portion. Rule 54(2) provides an additional mode of making sale proclamation by publishing in the local newspaper. In our view, that by itself does not cure the statutory conditions provided in Rule 53. Provisions of Rule 53 are similar to Order 21, Rule 66, of the Civil Procedure Code.

21. In Basharutulla v. Uma Churn Dutt an immovable property, advertised for sale, under Section 287 of the Code of Civil Procedure, was sold on the date fixed, but at an earlier hour than stated in the proclamation. Petheram C.J. observed as follows :

' It is perfectly true that there is no provision in the Code that the sale shall take place at the time and place advertised, but it is clear that such a provision must be implied, and that consequently no sale can take place under the Code except at the time and place advertised under the Code.'

22. The above decision has been followed by a Bench decision of the Madras High Court in Jayarama Aiyar v. Virdhagiri Aiyar, A.I.R. 1921 Mad. 583. It has been observed in that case that the distinction between an irregularity and an illegality is one of degree and an irregularity of so serious a nature as to render impossible the publicity which affords one main security for the fairness of public sales must be deemed to be an illegality, and the illegality makes the sale void. In Bakshi Nand Kishore v. Malak Chand, [1883] I.L.R. 7 All. 289 a Division Bench of the Allahabad High Court held that infringement of the rule contained in Section 290 of the Civil Procedure Code vitiated the sale. It is an illegality vitiating the sale and is something more than material irregularity in publishing and conducting a sale to which Section 311 of the Civil Procedue Code refers.

23. The decision of Basharutulla v. Uma Churn Dutt has been approved by the Full Bench of this Court in Mohendro Narain Chaturaj v. Gopal Mondal, [1890] I.L.R, 17 Cal. 769 [F.B ] and in Tikendrajit Ghosh v. Mritunjoy Mondal, [1940] 44 C.W.N. 1103; A.I.R. 1940 Cal 554. In that case it has been held that if a sale held purported to be under the Public Demands Recovery Act, but by an examination of the circumstances under which the sale had been held, it appears that the sale was held without authority, such a sale must be declared to be void and not to affect the title of any other person.

24. Mr. Suhas Sen, appearing on behalf of the revenue, and Mr. Gautam Chakraborty, appearing for the auction-purchaser, respondent No. 4, contended that in the instant case there was only material irregularity and the sale was not a nullity and as the appellant did not take recourse to the alternative remedy provided in the Rules for setting aside the sale, the learned trial judge has rightly dismissed the petitioner's application under Article 226 of the Constitution and refused to grant relief to the appellant.

25. It is further contended that as the appellant did not raise any objection to the sale proclamation, it has estopped him from questioning any illegality consequent on a sale held under the said proclamation.

26. In the present case, the certificate-debtor filed the application for review on 22nd August, 1970, which date, according to it, was the correct date of sale. Therefore, the question of waiver or estoppel does not arise in the instant case.

27. A large number of decisions have been placed before us. These decisions are in Ashutosh Sikdar v. Behari Lal Kirtania, [1907] ILR. 35 Cal. 61 [F.B.], Nripati Nath Bhattacharjee v. Jatindra Kumar Das, A.I.R. 1926 Cal. 577, T.R. Arunachellum Chetti v. V.R.R.M. A. R. Arunachellum Chetti, [1888] L.R. 15 I.A. 171 ; I.L.R. 12, Krishna Mohan Kundu v. Nripendra Nath Nandi, A.I.R. 1933 Cal. 662, Sheodhyan Singh v. Mt. Sanichara Kuer, A.I.R. 1956 Pat. 349, R. Olpherts and E. Macnaughten v. Mahabir Perskad Singh, [1883] L.R. 10 I.A. 25 (P.C.), Gobardhan Behari Bose v. Sarat Chandra Bhattacharjee, [1933] 37 C.W.N. 146; A.I.R. 1933 Cal. 486 and Lakshmi Narayan Rice Mills v. Assistant Commissioner of Commercial Taxes, [1962] 66 C.W.N. 1 (Cal.) .

28. These are all cases of material irregularities where description of the property or the revenue assessed on it or the value has not been given.

29. We do not intend to discuss in detail the cited cases because the facts of none of the cases are similar to the facts of the present case. Both Mr. Sen and Mr, Chakraborty were unable to cite a single decision where in the sale proclamation two dates were mentioned ; the sale was held in one of the dates and it was held to be a mere irregularity and not an illegality.

30. Much reliance, however, was placed upon the case, Rang Lal Singh v. Ravaneshwar Prasad Singh,. [1912] 16 C.W.N. 1 ; I.L.R. 39 Cal. 26 (P.C.). In that case, the execution sale which was to take place on the 16th of May, 1903, was on that date postponed and fresh proclamation of sale was issued directing that the sale would be held at the monthly sale at 6 o'clock in the morning of the 13th July, 1903, but the monthly sale, owing to the absence from station of the presiding officer, did not take place till the 20th July, on which date the property was sold in the course of the monthly sale. It was held by the Privy Council that the sale was not in contravention of Sections 287 and 297 of the Civil Procedure Code, 1882.

31. That decision obviously is distinguishable. In the absence of the presiding officer, the monthly sale which was directed to be held on the 13th July was postponed and it was held on the 20th July. In the instant case it appears from the sale proclamation that two dates were mentioned, 14th August, 1970, and 22nd August, 1970. Even then, as we have found 14th of August, 1970, was not stated to be a fixed date inasmuch as it has been stated in the sale proclamation that the sale will be held by 14th August, 1970. The proclamation of the time and place of sale were conditions precedent to its being a sale under Schedule II to the Income-tax Act, 1961. Here two dates were mentioned, 14th August and 22nd August Before the trial judge two affidavits were filed by Satyanarayan Sharoff and Dip Chand Moheta. It is stated in the said affidavits that they saw the proclamation of sale of the premises No. 21, Rup Chand Roy Street, Calcutta, affixed in the office of the Tax Recovery Officer, Calcutta, wherein it was stated that the property would be sold on August 22, 1970, They went to the office of the Tax Recovery Officer on the 22nd August, 1970, and they found that other persons interested to purchase the said premises were also present. Those statements in the affidavits have not been controverted by the auction-purchaser, the respondent No. 4. The revenue did not appear before the trial court. The Tax Recovery Officer observed in his order dated 22nd August, 1970, that no bidder was present on that date to offer any price whatsoever for the purpose of purchasing the said property. It seems that the learned trial judge solely relied upon those observations in the order of the Tax Recovery Officer, but the affidavits about which we have referred to have not been considered or referred to by the learned judge in his judgment.

32. In our view, in a sale proclamation issued under Rule 53, it is mandatory to state the time and place of the sale correctly, otherwise the whole purpose of a sale by public auction would be frustrated. It is not for the court to find out whether sufficient number of bidders were present on one of the days mentioned in the sale proclamation or not. If it appears on the face of the sale proclamation that the date mentioned therein is meaningless, vague, ambiguous or not intelligible to a man of ordinary prudence, a sale held under that proclamation must be declared to be void.

33. Considering the facts and circumstances of the case, we are of opinion that the sale held on the 14th August, 1970, was not a sale under the Second Schedule to the Income-tax Act, 1961. It is not that the Tax Recovery Officer exercised his jurisdiction illegally but he assumed jurisdiction which he did not possess as the conditions precedent for assumption of jurisdiction have not been fulfilled in the present case.

34. In the result, this appeal is allowed, the judgment and order of .the learned trial judge dated 7th June, 1971, are set aside. Let a writ in the nature of mandamus be issued commanding the respondent No. 1 to withdraw and cancel the sale held on August 14, 1970, of the premises No. 21, Rup Chand Roy Street, Calcutta, owned by the appellants. We, however, make it clear that the respondent No. I would be at liberty to put up the said property for sale after issuing a fresh proclamation in accordance with law.

35. There will be no order as to costs.

Amaresh Roy, J.

36. I agree.


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