2001 (2) TMI 70

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....come-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, I 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. 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 object....

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....ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection: Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection, upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit. (3) The claimant or objector must adduce evidence to show that- (a) (in the case of immovable property) at the date of the service of the n....

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.... to the result of such suit (if any), the order of the Tax Recovery Officer shall be conclusive." In my opinion, in the present case, there does not appear to be any investigation made by the Tax Recovery Officer on the objection filed by the petitioner referred to supra much less in the context of rule 11 ibid to the effect that the property which is put to auction cannot be sold or that the same belongs to the petitioner. In my opinion, in the absence of any return filed by the Income-tax Department this court has to proceed on the assumption that the Tax Recovery Officer did not follow any procedure as prescribed in rule 11 and simply proceeded to auction the property over looking the requirement of rule 11. This was not possible. It ....