TaxTMI 
TaxTMI 
1973 (11) TMI 4
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....tta. 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." 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. 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....
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.... 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." 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. Provisions for filing applications for setting aside a sale within 30 days from the date of sale are provided 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. 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 addit....
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....sive 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. 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. 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 14th 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, 1970, without mentioning th....
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....rial 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. 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. 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. A large number of decisions have been placed before us. These decisions are in Ashutosh Sikdar v. Behari Lal Kirtania , Nripati Nath Bhatacharjee v. Jatindra Kumar Das, T. R. Arunachellum Chetti v. V. R. R. M. A. R. Arunachellum Chetti, Krishna Mohan Kundu v. Nripendra Nath Nandi, Sheodhyan Singh v. Mt. Sanichara Kuer, R. Olpherts and E.Macnaughten v. Mahabir Pershad Singh, Gobardhan Behari Bose v. Sarat Chandra B....
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....f 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, 1976, 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. 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, va....