2006 (12) TMI 128

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.... the Assessing Officer to give a reasonable opportunity of hearing before passing the final orders. Pursuant thereto, after giving a reasonable opportunity of hearing to the petitioner, the Assessing Officer passed an assessment order on March 29, 2000. The revision filed by the fourth respondent against that order was dismissed on March 12, 2003. Against the order dated March 12, 2003, the fourth respondent filed Writ Petitions Nos. 15527 to 15537 of 2003, pending the same, conditional stay was granted on October 16, 2003, on condition of the writ petitioner paying 50 per cent. of the tax arrears and furnishing a bank guarantee for remaining 50 per cent. of the tax arrears. Since both the conditions were not complied with, the stay got vacated automatically on November 12, 2003. Thereafter, writ appeals were filed with petitions to condone the delay but the same were not pursued by the fourth respondent. 3. The demand raised pursuant to the assessment order dated March 29, 2000, is sought to be realised by the auction sale which is impugned in the above writ petition. The impugned proceedings are challenged on the following grounds : (i) Rule 52(1) of Part III of the Second Sche....

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....ated on June 21, 2006. Thereafter, the petitioner represented by Ms. K. Sivathi filed a miscellaneous petition on July 13, 2006, to set-aside the order vacating the interim injunction. While so when the auction was to take place on December 12, 2006, the present writ petition has been filed in the last minute. Respondents Nos. 1 to 3 have further stated that on the principles of res judicata the present writ petition is not maintainable and the above writ petition is a collusive action of the fourth respondent and the writ petitioner. 5. The contention of the petitioner that the impugned proceedings is barred by limitation is contested and it is stated that after excluding the period of stay between March 23, 2006 and June 21, 2006, since the balance number of days is less than 180 days, it stands extended for a further period of 180 days from June 21, 2006, which ends on December 18, 2006 and therefore auction notified on December 12, 2006, is well within the period of limitation prescribed under the statute. 6. In the counter-affidavit, the respondents have further stated that the petitioner filed an application under rule 11 of the Rules only on November 28, 2006 and on Novemb....

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....bmitted that none of the properties which are sought to be auctioned stands in the name of the petitioner and the properties standing in the name of the petitioner-trust have not been listed for sale on December 12, 2006 and as such, according to learned senior standing counsel, the petitioner by no stretch of imagination can be termed as an aggrieved person and so the petitioner has no locus standi to file the above writ petition. 9. Countering the abovesaid preliminary objections raised by learned senior standing counsel, learned senior counsel for the petitioner by placing reliance on a decision of the Supreme Court reported in Tax Recovery Officer v. Gangadhar Viswanath Ranade (Decd.) [1998] 234 ITR 188 submitted that the order of the third respondent dated December 8, 2006, passed in the application filed by the petitioner under rule 11 is bad in law and he relied upon the following passage from the abovesaid decision (page 194) : "The Tax Recovery Officer, therefore, has to examine who is in possession of the property and in what capacity. He can only attach property in the possession of the assessee in his own right, or in the possession of a tenant or a third party on beh....

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....s been adjudicated and orders have been passed on December 8, 2006, there could not be any objection on the part of the petitioner for the impugned sale. As rightly contended by learned senior standing counsel for the Income-tax Department the only course open to the petitioner is to avail of the remedy provided for under rule 11(6) of the Rules i.e., to institute a suit in a civil court to establish the petitioner's right over the properties in question. Further, as pointed out by learned senior standing counsel, in the order dated December 8, 2006, the third respondent has observed that none of the properties which is sought to be auctioned stands in the name of the petitioner and the properties standing in the name of the petitioner-trust have not been listed for sale on December 12, 2006 and therefore as rightly contended by learned senior standing counsel the petitioner cannot be termed as an aggrieved person and therefore the petitioner has no locus standi to file the above writ petition challenging the impugned proceedings and on that ground itself the above writ petition is liable to be dismissed. Further it has to be pointed out that even assuming that there are defects or....